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

                                 2016 UT 51


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                                 ESAR MET,
                                 Appellant,
                                       v.
                              STATE OF UTAH,
                                 Appellee.


                             No. 20140522
                       Filed November 21, 2016


                            On Direct Appeal

                    Third District, Salt Lake
               The Honorable Judith S. H. Atherton
                        No. 081902720

                                 Attorneys:
           Herschel Bullen, Salt Lake City, for appellant
    Sean D. Reyes, Att‘y Gen., John J. Nielsen, Asst. Solic. Gen.,
                    Salt Lake City, for appellee


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

      ASSOCIATE CHIEF JUSTICE LEE filed a concurring opinion.

   JUSTICE PEARCE, opinion of the Court:
    ¶1 Defendant Esar Met appeals his convictions on one count of
aggravated murder, see UTAH CODE § 76-5-202, and one count of
child kidnapping, see UTAH CODE § 76-5-301.1, each a first degree
felony. Met is currently serving two concurrent sentences of life in
prison without parole for these convictions.

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                         Opinion of the Court

    ¶2 Met raises a panoply of issues on appeal. He challenges the
constitutionality and the district court‘s application of Utah‘s
noncapital aggravated murder sentencing statute, Utah Code section
76-3-207.7. He contends that the district court improperly ruled that
the State could use a transcript of his police interview for
impeachment purposes if he chose to testify. He also argues that the
police violated the Fourth Amendment to the United States
Constitution when they searched his apartment without a warrant
and that all evidence stemming from the allegedly illegal search
should have been suppressed. Met asks us to conclude that the
district court improperly admitted two photographs of the victim,
which he contends are prejudicially gruesome. He also argues that
the district court erred by declining to merge his child kidnapping
conviction with his aggravated murder conviction. Finally, he argues
that his trial counsel provided constitutionally ineffective assistance
by failing to pursue a mistrial motion related to the State‘s failure to
test and preserve certain evidence.

    ¶3 We conclude (1) that Utah Code section 76-3-207.7 is not
constitutionally deficient, (2) that the district court did not abuse its
discretion with respect to the various evidentiary rulings Met
challenges, although in reaching that decision we abandon our prior
gloss on the Utah Rules of Evidence that had implemented a more
stringent threshold for the admission of potentially gruesome
photographs, (3) that the court did not err in declining to merge
Met‘s convictions, and (4) that, even assuming Met‘s trial counsel
provided ineffective assistance, counsel‘s performance did not
prejudice Met. We therefore affirm Met‘s child kidnapping and
aggravated murder convictions.
    ¶4 We conclude, however, that the district court erroneously
treated life without parole as the presumptive sentence for Met‘s
aggravated murder conviction. See UTAH CODE § 76-3-207.7 (2007).
Accordingly, we remand the case for the limited purpose of
permitting the district court to clarify what impact its
misapprehension of the law had on its sentencing decision or for
resentencing on the aggravated murder charge. Finally, we affirm
the sentence of life in prison without parole for the child kidnapping
conviction.
                             BACKGROUND
  ¶5 On March 31, 2008, seven-year-old Hser Ner Moo (Victim)
was reported missing. The next day, she was found dead in the



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basement of a nearby apartment. Victim‘s body was badly injured,
and there were indications that she had been sexually assaulted.
    ¶6 Victim and her family were refugees from Burma, now
known as Myanmar. The Burmese civil war of the 1980s forced
Victim‘s parents, who are ethnically Karen, to flee to a Thai refugee
camp.1 In 2007, Victim and her family were relocated from Thailand
to the Salt Lake City apartment where they were living when Victim
was killed.
   ¶7 In February 2008, Defendant Esar Met, also a Burmese
refugee, was relocated to Salt Lake City and moved into the
basement of an apartment in the same complex as Victim‘s family.
Met, who was Burmese but not Karen, shared the apartment with
four Karen roommates.
    ¶8 Met befriended Victim and her ten-year-old friend. The two
girls would, on occasion, visit Met‘s apartment to play games and
watch movies. Usually ―other Karen kids‖ were also playing at the
apartment when Victim was there, but on at least one occasion,
Victim and her friend were alone with Met.
    ¶9 On March 31, 2008, Victim‘s father was at work, and her
mother was at a dentist appointment. Victim‘s aunt testified that she
last saw Victim around 1:00 p.m. A neighbor remembered seeing
Victim walking in front of her apartment sometime between 11:30
a.m. and 1:00 p.m. traveling southbound in the direction of Met‘s
apartment. A friend of Victim also testified that sometime after her
―morning meal but [before her] afternoon meal,‖ Victim came to her
house to ask to play, but Victim‘s friend declined because she did
not feel well.
    ¶10 Victim‘s mother returned from her appointment that
afternoon and noticed that Victim was missing. Victim‘s family

_____________________________________________________________
   1 See generally HAZEL J. LANG, FEAR AND SANCTUARY: BURMESE
REFUGEES IN THAILAND 82–86 (2002) (describing the large scale forced
migrations from Burma to Thailand). The Karen people are an ethnic
group who originate primarily from Burma and Thailand. The Karen
are distinct from other ethnic groups living in this area, including the
ethnic Burmese people. In addition to having a distinct culture and
history, the Karen speak a unique language. See Karen,
ENCYCLOPÆDIA BRITANNICA (May 27, 2016, 10:45 AM),
https://perma.cc/7RNU-TBDE.


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searched the apartment complex and the surrounding area for
several hours. Sometime that evening, Victim‘s father went to Met‘s
apartment and asked Met‘s roommates if they had seen Victim. The
roommates responded that they had not. The police were contacted,
and soon police officers and volunteers embarked on a large-scale
search of the area.
    ¶11 On the evening of April 1, four FBI agents knocked on the
door of Met‘s apartment. After the agents knocked for
approximately ten minutes, one of Met‘s roommates answered. The
agents identified themselves, indicated that they were searching for
Victim, and asked if they could enter and search the apartment. One
of the roommates indicated that the agents could search for Victim.
Met‘s four roommates were in the apartment at the time, but Met
was not.
    ¶12 Two agents began to search while two others stayed with
the roommates. One of the roommates explained that Met resided in
the apartment‘s basement. The roommate also volunteered that Met
was not at home and that the roommates had not seen Met that day
or the day before.
    ¶13 Agents first searched the three-level apartment‘s upstairs
and main floors. The agents then proceeded to the basement, which
could be accessed from the main floor by an open stairway that led
to the basement‘s living room.2 The basement consisted of a main
room and three smaller rooms accessible from the main room: a
bathroom, a furnace room, and a bedroom. The first agent to enter
the basement testified,
       I was the first one down the stairs. And I got to the
       bottom of the stairs . . . and the wall there, as I recall,
       opens up from the floor as it goes down, so I could
       start to see into the room. But once I saw in the room,


_____________________________________________________________
   2  There was no door at the top or the bottom of the stairs leading
to the basement. Met‘s roommates testified that they generally did
not enter the basement of the apartment, but two roommates
testified that all of the roommates had permission to go anywhere
they wanted in the apartment. Those two roommates also indicated
that they stored some items, including a bike and DVDs, in the
basement and would occasionally enter the basement to retrieve
them.


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       the first thing I noticed were these two larger brown
       spots.
          ....
            So at first . . . I thought, well, that doesn‘t look
       good. But I thought well, maybe it could be some
       spilled substance or something, but it also, of course,
       struck me, that looks like dried blood.
          . . . [Did] you notice anything else?
           Yes, I noticed a couple of things. I noticed the—the
       bed. [The condition of the bed] didn‘t look normal to
       me. I also noticed other less prevalent blood spatters on
       the floor and blood drops. And then most significant to
       me, because it looked like blood, . . . was over against
       [the] wall.
          ....
          [The spots on the wall appeared to be] blood
       traveling, hitting the wall and then running straight
       down [the wall].
Two more agents confirmed what the first agent believed—that the
spots on the carpet and wall appeared to be dried blood.
    ¶14 One agent left the basement to contact the coordinating
police officer as two agents continued to search the basement. After a
search of the bedroom uncovered no significant evidence, the agents
made their way to the bathroom. An agent testified, ―The [bathroom]
door was a little bit ajar, not fully closed. So that‘s when I pushed it
open. And as soon as I opened the door, I saw some blood splatter
located immediately within the threshold walking to the bathroom.‖
In the bathroom, an agent also discovered a plastic bag appearing
―to be full of blood‖ and a pair of pink and black shoes that
―[l]ooked like they belonged to a young girl.‖ As the agent
approached the bathroom‘s shower stall, he saw ―the foot of a young
person‖ and then, as he got closer, ―the full body of a young female.‖
The body was identified as Victim. She was wearing a pink jacket
and pink skirt and was not wearing any underwear. ―Her left wrist
looked like it was broken in an awkward angle. And . . . her legs
were positioned at her sides to fit her in the shower basin.‖ The
agent testified that she was cold to the touch. An EMT later
determined that she had been ―deceased for some time.‖



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                        Opinion of the Court

   ¶15 After discovering Victim, the agents talked to Met‘s
roommates. An agent testified that the roommates ―seemed very
calm‖ and acted ―[t]he same way they had been during the entire
time of the interview . . . . Nobody was visibly nervous or concerned
or overly interested in what [the agents] were doing.‖ When asked
about Met, one of Met‘s roommates told the agents that he believed
Met was at his cousin‘s house in Cottonwood Heights and provided
a phone number.
    ¶16 The record contains little evidence regarding Met‘s
whereabouts on March 31, 2008. Sometime that day, Met boarded a
bus to his aunt‘s house in Cottonwood Heights. Met‘s uncle testified
that he unexpectedly ran into Met around 3:00 p.m. on March 31
when the uncle boarded a bus to return to his house from work. The
uncle invited Met to his house.3 That evening, Met received a phone
call from one of Victim‘s neighbors asking whether he had taken
Victim with him. Met apparently responded, ―I didn‘t bring her with
me‖ and ―[S]he did not come with me.‖ Met stayed the night of
March 31 at his aunt‘s house. On April 1, the police arrested Met on
suspicion of Victim‘s murder.
    ¶17 Officers drove Met to a police station where police
interviewed him for more than two hours. The police engaged the
assistance of someone they believed to be an FBI translator.
However, the translator was neither from the FBI nor trained as a
translator. Rather, he was an acquaintance of Victim‘s parents and
Met‘s roommates. After seeing police officers in the apartment
complex, the translator had asked the police if he could assist
Victim‘s parents. An officer apparently responded that he could help
by going to the police station and offering his assistance there.
Although no problems were noted during the interview, a later
review of the transcript revealed that there had been significant
translation errors. In the words of one of the interviewing officers,
―The translation was not correct. The information I thought I was
getting from the defendant was not the same as was relayed to me.
And the stuff I was relaying to the defendant was not getting relayed
to him as I said it in any way.‖ During that interrogation, Met

_____________________________________________________________
   3 Met‘s aunt and uncle both testified that they did not know that
Met was going to come to the house that day and that there were no
standing plans, but they did state that they had previously told Met
that he was welcome to visit their house anytime.


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confessed to killing Victim accidentally, but denied that he had
sexually assaulted her.4
    ¶18 Met was eventually charged with aggravated murder and
child kidnapping. The State did not seek the death penalty. Met
moved to suppress all evidence gathered in, or stemming from, the
search of his apartment. He argued that the warrantless search of his
apartment violated the Fourth Amendment. The district court denied
Met‘s motion, concluding that the warrantless search of the
apartment was reasonable because Met‘s roommates consented to
the search of the common areas of the apartment, including the
basement‘s main room and bathroom. The court also concluded that
once officers discovered blood stains in the main room of the
basement, they were permitted to search the basement bathroom due
to the ―exigencies of the situation.‖
    ¶19 Met also moved to suppress his interview with the police
because he was not informed of his rights under Miranda v. Arizona,
384 U.S. 436 (1966), and because there were ―significant deficiencies
in the interpretation [provided] during the interview.‖ The State
conceded that it could not use Met‘s interview testimony in its case
in chief because the translator had not adequately advised Met of his
Miranda rights. The court concluded that the State could not use
Met‘s testimony in its case-in-chief but authorized the use of Met‘s
statements for impeachment purposes if Met chose to testify.
   ¶20 Met moved to exclude three photographs as gruesome and
unduly prejudicial. The district court denied the motion with respect
to two of the photographs. One photograph shows Victim ―lying

_____________________________________________________________
   4 The interrogation was conducted at the police station and later
translated verbatim by the FBI. According to the FBI translation of
Met‘s interrogation, Met‘s translator implored Met as a Burmese
―brother‖ not to lie and to tell the truth about what happened. In
response, Met said, ―It could say accident. They can believe however
they want . . . . I killed her. I am telling the truth.‖ Later in response
to the question ―Did you kill her?‖ Met confessed, ―Yeah, I have to
say that I killed her. How am I supposed to say? She died because of
me.‖ When asked whether he had also sexually assaulted Victim,
Met replied that ―[i]t is true that this child is dead because of me but
I did not ruin the child. I am telling the truth. I swear.‖ He
maintained throughout the interview that the killing was accidental
and that he had not sexually assaulted Victim.


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                          Opinion of the Court

face down in a shower stall.‖ The court determined that this
photograph was ―highly probative‖ of the injuries Victim sustained,
the location and position of her body, including that she was not
wearing underwear and that her body had been washed, and the
―struggle‖ that took place surrounding her murder. The second
photograph is a ―clean, close-up shot of [Victim‘s] genitalia.‖ The
court determined that the photograph was relevant to and probative
of the question of whether Met had sexually assaulted Victim.
    ¶21 At trial, the State presented the testimony of Dr. Todd Grey,
chief medical examiner for the State and a forensic pathologist, who
had performed Victim‘s autopsy. He testified that ―[t]he majority of
the injuries . . . were . . . blunt force injuries. So they would be things
like contusions or bruises, abrasions or scrapes, lacerations or tears
in the skin, as well as a fracture . . . of the left—distal left arm.‖
Victim suffered injuries to her cheek, her chin, and her neck; an
abrasion and bruising around her left temple; a complete fracture of
her ―two bones of the [left] forearm‖; petechiae in her eyes—
hemorrhages ―very commonly associated with asphyxia‖—likely in
this instance due to ―clothing being twisted tightly across the front of
her neck‖; numerous injuries to her chest, which caused ―the tissues
of th[e] central structure of her chest‖ to be pulled away ―or sheared
off‖ of her spinal column; and a fatal tear in the right atrium of her
heart caused by blunt force trauma to her body. Dr. Grey opined
that Victim‘s death was a homicide, ―as a result of blunt force
injuries‖ to her ―neck, her torso and her left wrist.‖
    ¶22 The State also called Dr. Lori Frazier to the stand. Dr. Frazier
testified that Victim also suffered ―some type of penetrating injury
that damaged the tissues in the upper part of the hymen and the
anterior vaginal wall.‖
    ¶23 The State presented DNA evidence collected from the denim
jacket Met was wearing when he was taken into custody. A forensic
scientist, Chad Grundy, found that the two blood stains he tested
―appeared to have originated from a single female source.‖ Grundy‘s
testing also established that the blood on Met‘s jacket matched
Victim‘s DNA.5 The State also collected and tested DNA evidence
found under Victim‘s fingernails. The tests excluded Met‘s

_____________________________________________________________
   5 The tested blood samples from the denim jacket were ―clean
sample[s],‖ meaning that they identified only a single DNA
contributor and not a mixture of two DNA samples.


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roommates as the DNA‘s source but could not exclude Met or the
men in Victim‘s family.
    ¶24 Grundy testified that he had also tested several stains found
in Met‘s apartment. He found human blood present in the two stains
on the carpet of the basement‘s main floor, in the stain on the wall in
the basement‘s main room, in the stains in the basement‘s bathroom,
and in two stains in the stairwell leading to the basement. Grundy
also found that a stain in the living room on the apartment‘s main
floor, around the corner from the staircase leading to the basement,
tested positive as human blood. DNA obtained from four of these
stains matched Victim‘s. Additionally, Victim could not be excluded
as the DNA contributor to the main-floor blood stain.
    ¶25 Met had various injuries on his body that were consistent
with scratching or the ―scraping or . . . clawing of a fingernail.‖ One
particular abrasion on the inside of Met‘s thigh consisted of three
streaks, twelve millimeters in length, with each streak parallel to the
other. Many of these injuries were sustained in areas such as Met‘s
thigh, hip, and right calf that would ordinarily have been covered by
Met‘s underwear or pants. A nurse testified that many of the injuries,
because of their location and severity, were likely made when Met
was not wearing either underwear or pants, although the nurse
conceded that it was possible to sustain similar abrasions when
clothed.
    ¶26 On the eighth day of trial, the State informed the district
court and Met‘s counsel that it had ―just become aware of‖
―potential[ly] exculpatory testimony.‖ The prosecutor indicated that
it had ―been his understanding . . . that there was . . . no blood of any
sort upstairs.‖ The prosecutor testified that, contrary to his belief, the
previous evening a crime scene investigator ―indicated that there
was a spot of blood that they found on the carpet‖ of the top floor of
the apartment. The prosecutor learned that the investigator had
performed a preliminary test on the spot, which indicated that the
spot was likely blood. The investigator and his team apparently did
no further testing and declined to preserve that evidence because
they believed the upstairs ―was not relevant to the crime scene.‖ The
prosecutor stated that this was the first time he had learned of the




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                         Opinion of the Court

potential blood spot and that he believed, prior to the discussion,
that the spot was betel-nut residue.6
    ¶27 Met‘s trial counsel indicated that he was disappointed that
the spot had not been preserved and tested because it ―could have
changed the case dramatically,‖ but stated that he would ―explore
the [decision not to test the spot] the best we can on cross
[examination] with this late notice.‖ In the midst of counsel‘s cross-
examination of the crime scene investigator, counsel asked the court
to grant a mistrial based on the State‘s failure to identify and
preserve the potential blood spot. Later in the day and before the
court had an opportunity to rule, Met‘s trial counsel withdrew the
mistrial motion, explaining to the court that he did not believe he
could establish prosecutorial misconduct under Brady v. Maryland,
373 U.S. 83 (1963). Met‘s trial counsel stated that he ―spent the lion‘s
share[7] of today on the computer. I‘ve done actually three separate
analyses under three separate lines of cases . . . .‖ Met‘s counsel
testified that his research indicated that he could not meet his
burden of demonstrating the need for a mistrial and so he did not
think the motion was ―well taken.‖
    ¶28 The jury found Met guilty of aggravated murder and child
kidnapping. The jury found three aggravating circumstances that
classified Victim‘s killing as aggravated murder. First, the ―homicide
was committed incident to one act, scheme, course of conduct, or
criminal episode during which the defendant committed or

_____________________________________________________________
   6 A betel nut is a tree nut chewed by users that has a stimulating
effect equivalent to six cups of coffee. It is ―believed to be one of the
most popular mind-altering substances in the world.‖ Cindy Sui &
Anna Lacey, Asia’s Deadly Secret: The Scourge of the Betel Nut, BBC
NEWS (Mar. 22, 2015), http://www.bbc.com/news/health-31921207.
   7  This expression derives from one of Æsop‘s fables. The fable
describes a hunting partnership between a lion, fox, jackal, and wolf.
When the four were ready to share their spoils, the lion split the stag
into four equal parts. The lion then stated, ―I am King Lion . . . . so of
course I get the first part. This next part falls to me because I am the
strongest; and this is mine because I am the bravest.‖ Stretching his
claws, the lion finished, ―If any of you have any claim to the part that
is left, . . . now is the time to speak up.‖ The Lion’s Share, LIBRARY OF
CONGRESS, http://www.read.gov/aesop/141.html (last visited May
3, 2016).


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attempted to commit sexual abuse of a child.‖ Second, the ―homicide
was committed incident to one act, scheme, course of conduct, or
criminal episode during which the defendant committed or
attempted to commit child abuse.‖ And third, Victim was younger
than fourteen years of age. The jury also found that in the course of
the child kidnapping, Met caused ―serious bodily injury‖ to another,
an aggravating sentencing factor for child kidnapping.
   ¶29 Met moved to merge his child kidnapping conviction with
his aggravated murder conviction. Met argued that ―there was
simply no evidence adduced at trial of any detention or confinement
independent from the detention inherent in the commission of the
aggravated homicide.‖ The district court denied Met‘s motion to
merge the two convictions. It concluded ―that the jury had sufficient
evidence to support a separate conviction on the child kidnapping
count in addition to the aggravated murder count.‖
   ¶30 Met also asked the court to declare Utah‘s noncapital
aggravated murder sentencing statute unconstitutional. See UTAH
CODE § 76-3-207.7 (2007). He contended that the statute violated,
among other constitutional provisions, the Equal Protection Clause
and the Due Process Clause by granting the sentencing court
unfettered discretion in its sentencing decision, which could lead to
arbitrary sentencing. The district court denied Met‘s motion.
    ¶31 The court pronounced two sentences of life in prison
without parole for Met‘s aggravated murder and child kidnapping
convictions. The court ordered the sentences to run concurrently. At
the sentencing hearing, the court opined that there was a
presumptive life sentence for both Met‘s aggravated murder
conviction and the child kidnapping conviction aggravated by the
serious-bodily-injury finding.
   ¶32 Met appeals. We have jurisdiction under Utah Code section
78A-3-102(3)(i).




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                         Opinion of the Court

               ISSUES AND STANDARDS OF REVIEW
    ¶33 Met‘s various constitutional and statutory arguments
attacking his sentence under Utah Code section 76-3-207.7 and
Utah‘s sentencing structure for those convicted of aggravated
murder are questions of law that we review for correctness. See State
v. Reece, 2015 UT 45, ¶ 18, 349 P.3d 712; State v. Perea, 2013 UT 68,
¶ 34, 322 P.3d 624. We afford no deference to the district court‘s legal
conclusions. Perea, 2013 UT 68, ¶ 34.
    ¶34 The district court‘s denial of Met‘s motion to suppress the
transcript of the police interrogation is a mixed question of law and
fact, where our review is ―sometimes deferential and sometimes
not.‖ State v. Arriaga-Luna, 2013 UT 56, ¶ 7, 311 P.3d 1028 (citation
omitted). We recently explained that the deference we afford the
district court‘s resolution of a mixed question depends upon
        (1) the degree of variety and complexity in the facts to
       which the legal rule is to be applied; (2) the degree to
       which a trial court‘s application of the legal rule relies
       on ―facts‖ observed by the trial judge, such as a
       witness‘s appearance and demeanor, relevant to the
       application of the law that cannot be adequately
       reflected in the record available to appellate courts; and
       (3) other policy reasons that weigh for or against
       granting [deference] to trial courts.
Murray v. Utah Labor Comm’n, 2013 UT 38, ¶ 36, 308 P.3d 461
(alteration in original) (citation omitted). A question is more law-like
if it ―lend[s] itself to a consistent resolution by a uniform body of
appellate precedent.‖ Id. ¶ 37 (citation omitted). A question is more
fact-like if ―the trial court is in a superior position to decide it.‖ Id.
(citation omitted). Here, for example, where the district court‘s
decision is ―based entirely on its review of the interrogation
transcripts and the court‘s interpretation of the law,‖ the question is
more law-like than fact-like. Arriaga-Luna, 2013 UT 56, ¶ 8. ―[W]e
owe the district court no deference‖ when ―we are in as good a
position as the district court to examine the transcripts and
determine what the law is.‖ Id. We thus owe the district court no
deference in considering the denial of Met‘s motion to suppress the
transcript of the police interrogation. We review the court‘s decision
for correctness. See Murray, 2013 UT 38, ¶¶ 36–40.
   ¶35 Met‘s contention that the district court erred in denying his
motion to suppress evidence gathered in alleged violation of his
Fourth Amendment rights also presents ―a mixed question of law

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and fact.‖ State v. Fuller, 2014 UT 29, ¶ 17, 332 P.3d 937. ―While the
court‘s factual findings are reviewed for clear error, its legal
conclusions are reviewed for correctness, including its application of
law to the facts of the case.‖ Id.
    ¶36 We review Met‘s challenge to the admission of allegedly
gruesome photographs for an abuse of the district court‘s discretion.
State v. Bluff, 2002 UT 66, ¶ 47, 52 P.3d 1210; see also State v. Cuttler,
2015 UT 95, ¶ 12, 367 P.3d 981; State v. Gulbransen, 2005 UT 7, ¶ 35,
106 P.3d 734 (―The trial court‘s ultimate ruling under rule 403 of the
Utah Rules of Evidence is reviewed for an abuse of discretion.‖).
    ¶37 The district court‘s refusal to merge Met‘s child kidnapping
conviction into his aggravated murder conviction is a mixed
question of law and fact that is more law-like than fact-like. In
reviewing whether the district court erred in merging or refusing to
merge the convictions, the facts this court relies upon are of the sort
that are ―adequately reflected in the record,‖ not the sort ―observed
by the trial judge.‖ Murray, 2013 UT 38, ¶ 36 (citation omitted). We
thus review the district court‘s merger ruling for correctness. See
State v. Lee, 2006 UT 5, ¶ 26, 128 P.3d 1179.
    ¶38 Last, ―[a] claim of ineffective assistance of counsel raised for
the first time on appeal presents a question of law‖ that we review
for correctness. State v. Lucero, 2014 UT 15, ¶ 11, 328 P.3d 841
(citation omitted).
                              ANALYSIS
                I. Utah Code Section 76-3-207.7 Is Not
                      Constitutionally Deficient
    ¶39 Met argues that Utah Code section 76-3-207.7 violates the
federal and Utah Due Process Clauses, the federal Equal Protection
Clause, Utah‘s uniform operation of laws clause, the federal and
state Cruel and Unusual Punishment Clauses, and his right to a trial
by jury under the federal and state constitutions.
   ¶40 The Utah Code provides a dual-track structure for those
charged with aggravated murder. Under Utah Code section 76-5-
202(3)(a), if the prosecutor files a notice of intent to seek the death
penalty, the aggravated murder is charged as a ―capital felony.‖
Alternatively, if the prosecutor does not file a notice of intent to seek
the death penalty, then the aggravated murder is charged as a
―noncapital first degree felony.‖ Id. § 76-5-202(3)(b).
   ¶41 Defendants who are convicted of aggravated murder as a
capital felony—who are facing the possibility of death—are

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                          Opinion of the Court

sentenced by a jury, or, if the defendant requests and the State
consents, by a court. See UTAH CODE § 76-3-207(1)(c) (2007).8 The
sentence may be death only if a unanimous jury agrees. Id. § 76-3-
207(5)(a). If jurors do not unanimously agree to impose the death
sentence, the statute provides for a sentence ―of either an
indeterminate prison term of not less than 20 years and which may
be for life‖ or for ―life in prison without parole.‖ See id. Life in prison
without parole, however, may be imposed under section 76-3-207
only if ten or more jurors agree. See id. § 76-3-207(5)(c). Section 207
contains a non-exhaustive list of aggravating and mitigating
circumstances for the jury or judge to consider to decide whether to
impose a death sentence. See id. § 76-3-207(3)–(5). The statute also
provides a non-exhaustive list of evidence that may be presented at
sentencing. See id. § 76-3-207(2).
    ¶42 Defendants who, like Met, are convicted of aggravated
murder as a noncapital first degree felony—and who are not facing
the possibility of death—are sentenced under Utah Code section 76-
3-207.7. See id. § 76-3-207.7 (2007). Under that section, the sentencing
court may impose one of two sentences: life in prison without parole
or an indeterminate prison term of twenty years to life. Id. § 76-3-
207.7(2). The statute does not provide any additional direction to
guide the court, i.e., it does not require ten jurors to agree to a
sentence of life in prison without the possibility of parole. We have
stated, however, that the statute should ―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.‘‖ State v. Reece, 2015 UT 45, ¶ 78, 349 P.3d 712 (alterations in
original) (citation omitted).
   ¶43 In short, the statutory protections for those who face a
potential death sentence differ from those who do not. The bulk of
Met‘s constitutional challenges center on the different level of
protections afforded to those sentenced under the noncapital

_____________________________________________________________
   8  We apply the sentencing statutes in effect at the time of Met‘s
killing of Victim in 2008. However, we note that the minimum
sentence for both capital and noncapital first degree felony
aggravated murder has since been increased to imprisonment of
twenty-five years to life. See UTAH CODE §§ 76-3-206(1), 76-3-207.7(2)
(2016).


                                      14
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                         Opinion of the Court

aggravated murder sentencing statute—Utah Code section 76-3-
207.7.9 Met contends that his sentencing under Utah Code section 76-
3-207.7 violates various constitutional provisions. Many of Met‘s
arguments, although repackaged in various ways, have been
resolved by this court. And Met has not sustained the heavy burden
required to convince us to abandon our precedent. See State v.
Menzies, 889 P.2d 393, 398 (Utah 1994) (―Those asking us to overturn
prior precedent have a substantial burden of persuasion.‖). We
therefore reject, on stare decisis grounds, Met‘s argument that
section 76-3-207.7 is unconstitutional under the Utah Constitution‘s
uniform operation of laws provision. See Reece, 2015 UT 45, ¶¶ 77–80;
State v. Perea, 2013 UT 68, ¶¶ 121–23, 322 P.3d 624. We similarly
reject his challenge that section 76-3-207.7 violates the Eighth
Amendment‘s prohibition on cruel and unusual punishment. See
Reece, 2015 UT 45, ¶ 80; Perea, 2013 UT 68, ¶¶ 125–27. We also reject
his argument that section 76-3-207.7 violates the right to a trial by




_____________________________________________________________
   9  In addition to his specific arguments, Met asks us to import
constitutional and statutory protections necessary to impose the
death penalty to life in prison without parole sentencing
determinations because ―the death penalty is to [life without parole]
as [life without parole] is to all other sentences.‖ We, along with
many other courts, have long recognized that the death penalty is
qualitatively different from a prison sentence, even one as serious as
life in prison without parole. See Harmelin v. Michigan, 501 U.S. 957,
995 (1991) (setting out the ―qualitative difference between death and
all other penalties‖ and declining to impute constitutional
protections for death penalty sentencing to any other sentencing);
State v. Griffin, 2016 UT 33, ¶ 17 n.4, --- P.3d --- (explaining that our
―sua sponte prerogative‖ to correct certain unpreserved errors ―is
limited to capital cases where the death penalty was imposed‖
(citation omitted)); State v. Houston, 2015 UT 40, ¶ 36, 353 P.3d 55
(concluding that the death penalty, because of its ―finality,‖ differs
from a sentence of imprisonment, and creates a ―need for reliability
in the determination that death is the appropriate punishment in a
specific case‖ (citation omitted)). Met offers no argument that this
court has not already addressed, and he has not shouldered his
burden of convincing us that our precedent should be overturned.


                                     15
                             STATE v. MET
                         Opinion of the Court

jury under the Fifth and Sixth Amendments. See State v. Houston,
2015 UT 40, ¶¶ 30–32, 353 P.3d 55.10
    ¶44 We have not previously addressed whether section 76-3-
207.7 violates the prohibition against cruel and unusual punishment
found in article I, section 9 of the Utah Constitution or whether it
violates a defendant‘s state constitutional right to a jury trial under
article I, section 10 of the Utah Constitution. Although Met invokes
these state constitutional provisions, he does not develop an
argument based upon them, preferring to append them to
arguments based upon their federal counterparts. As we have
explained, ―cursory references to the state constitution within
arguments otherwise dedicated to a federal constitutional claim are
inadequate.‖ State v. Worwood, 2007 UT 47, ¶ 18, 164 P.3d 397. ―When
parties fail to direct their argument to the state constitutional issue,
our ability to formulate an independent body of state constitutional
law is compromised. Inadequate briefing denies our fledgling state
constitutional analysis the full benefit of the interested parties‘
thoughts on these important issues.‖ Id. While Met has stated that
section 76-3-207.7 violates two Utah constitutional provisions, he
offers us no ―distinct legal argument or analysis‖ to support his
assertion. Id. ¶ 19. We therefore leave those arguments for a matter
in which they are thoroughly briefed.
   ¶45 Met also argues that Utah Code section 76-3-207.7 violates
the state and federal Due Process Clauses by delegating legislative
power without ―minimum guidelines‖ to govern sentencing. Article
V, section 1 of the Utah Constitution prohibits the Legislature from
_____________________________________________________________
   10  Met also argues that we should invoke the rule of lenity to
reverse the sentence imposed by the sentencing court. ―The rule of
lenity requires that we interpret an ambiguous statute in favor of
lenity toward the person charged with criminal wrongdoing.‖ State
v. Rasabout, 2015 UT 72, ¶ 22, 356 P.3d 1258. The rule of lenity is not
implicated by a statute unless the statute is ambiguous. Id. A statute
is ambiguous only when ―its terms remain susceptible to two or
more reasonable interpretations after we have conducted a plain
language analysis.‖ Id. (citation omitted). Utah Code section 76-3-
207.7 requires the district court to sentence the defendant to either an
indeterminate term-of-years sentence of not less than twenty years or
to life in prison without parole. See UTAH CODE § 76-3-207.7 (2007).
Although ambiguous options may exist in the code, an option in and
of itself is not an ambiguity.


                                    16
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                         Opinion of the Court

―delegating ‗core‘ or ‗essential‘ legislative power or functions,‖
including the ―definition of a crime and the precise punishment
therefor.‖ State v. Briggs, 2008 UT 83, ¶ 14, 199 P.3d 935 (citations
omitted). Furthermore, a law may violate federal due process by
failing to ―establish minimal guidelines‖ to guide the enforcement of
the statute. See Kolender v. Lawson, 461 U.S. 352, 358 (1983).
    ¶46 Section 76-3-207.7 does not unconstitutionally delegate
legislative power or violate the federal Due Process Clause by failing
to establish minimum guidelines. As we have explained, section 76-
3-207.7, while relatively terse, ―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 the
offenses.‘‖ Reece, 2015 UT 45, ¶ 78 (alterations in original) (citation
omitted). Before a sentencing court imposes a sentence under section
76-3-207.7, 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.‖ Id. (alteration in
original) (citation omitted).
    ¶47 Section 76-3-207.7 outlines the precise punishments
available and requires the sentencing court to consider all applicable
circumstances and evidence prior to its imposition of a sentence.
Met‘s contention that section 76-3-207.7 grants unfettered discretion
to the sentencing court runs contrary to our established precedent
requiring the sentencing court to consider all relevant evidence. See
Reece, 2015 UT 45, ¶¶ 78–79; Perea, 2013 UT 68, ¶¶ 110–19; cf.
Williams v. New York, 337 U.S. 241, 247, 251 (1949) (concluding that a
sentencing judge‘s ―broad discretionary power‖ in reviewing
information in making a sentencing decision, including reviewing
out-of-court information, does not violate the federal Due Process
Clause and reasoning that ―modern concepts individualizing
punishment have made it all the more necessary that a sentencing
judge not be denied an opportunity to obtain [all] pertinent
information‖).11

_____________________________________________________________
   11 Met also suggests due process and equal protection violations
spring from the ―unfettered‖ discretion the statute affords
prosecutors to decide whether to charge aggravated murder as a
capital or noncapital offense. Met‘s suggestion, unaccompanied by
analysis or citation to case law, does not brief the issue adequately.
                                                        (continued . . .)

                                     17
                             STATE v. MET
                         Opinion of the Court

    ¶48 Met‘s final constitutional argument questions whether the
dual-track sentencing structure violates equal protection principles.
―The Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution provides that no state shall ‗deny to any
person within its jurisdiction the equal protection of the laws.‘‖ State
v. Lafferty, 2001 UT 19, ¶ 70, 20 P.3d 342 (quoting U.S. CONST. amend.
XIV, § 1). ―Thus, state laws must ‗treat similarly situated people alike
unless a reasonable basis exists for treating them differently.‘‖ Id.
(citation omitted). Put another way, ―[b]oth the federal and state
constitutions require that similarly situated individuals be treated
alike under the law unless there is a reasonable basis for treating
them differently.‖ State v. Herrera, 895 P.2d 359, 368 (Utah 1995). Met
does not argue that the statute violates any ―fundamental right or
makes determinations based on any suspect classification.‖ See
Lafferty, 2001 UT 19, ¶ 71. Thus, to survive constitutional scrutiny,
the sentencing statute ―need be only rationally related to a valid
public purpose.‖ See id.; see also Chapman v. United States, 500 U.S.
453, 465 (1991) (reviewing an equal protection challenge to a
sentencing statute for ―a rational basis‖); United States v. Titley, 770
F.3d 1357, 1359 n.3 (10th Cir. 2014) (―Our cases also support rational
basis review of equal protection challenges in the sentencing
context.‖); McQueary v. Blodgett, 924 F.2d 829, 834 (9th Cir. 1991)
(concluding that in the face of an equal protection challenge, a
review of a sentencing system where two sets of prisoners were
sentenced under two separate statutes was reviewed for ―a rational
relation to [a] governmental purpose‖); Jones-El v. Grady, 54 F.App‘x
856, 857 (7th Cir. 2002).
    ¶49 Met contends that section 76-3-207.7 treats a class of
similarly situated individuals—those convicted of aggravated
murder—differently by allowing some to be sentenced to life in
prison without parole while allowing others to be sentenced to ―the
lighter sentence of twenty years to life.‖ We have recognized that
criminal defendants convicted of the same crime are not necessarily
similarly situated. Perea, 2013 UT 68, ¶ 123 (―Not all those found
guilty of aggravated murder are similarly situated.‖). Our sentencing
scheme requires the district court to consider and weigh all relevant
evidence when sentencing a defendant. See Reece, 2015 UT 45, ¶¶ 79,

See State v. Nelson, 2015 UT 62, ¶ 39, 355 P.3d 1031 (stating that we
require ―not just bald citation to authority but development of that
authority and reasoned analysis based on that authority‖ (citation
omitted)).


                                    18
                          Cite as: 2016 UT 51
                         Opinion of the Court

84. This individualized inquiry means that a court, prior to
sentencing, will have recognized that ―each case and each defendant
presents a different set of facts and a different combination of
aggravating and mitigating factors‖ and that therefore not all
persons convicted of murder are similarly situated to one another.
Perea, 2013 UT 68, ¶ 123. Offering a sentencing judge a range of
options serves a valid public purpose by acknowledging that, while
defendants may be charged with similar or even identical crimes, not
every defendant arrives at the steps of the courthouse via the same
path. The Legislature promotes a valid public interest in creating a
structure that permits a judge to consider the ―different set of facts
and a different combination of aggravating and mitigating factors,‖
id., in sentencing each defendant, so that each defendant is treated on
an individual basis. As we noted in another context,
       [w]hile all [defendants found guilty of aggravated
       murder] are found guilty of the same crime, each case
       and each defendant presents a different set of facts and
       a different combination of aggravating and mitigating
       factors. The discretion afforded to district courts
       furthers the legitimate legislative purpose of
       sentencing offenders based on the totality of the unique
       circumstances present in each case. District courts are
       authorized and empowered by the Legislature to
       review the totality of the circumstances before
       imposing a sentence.
Id. ―Therefore, because the discretion given to district courts furthers
the legitimate legislative purpose of sentencing offenders based on
the severity of their particular circumstances, we hold that section
76-3-207.7 does not violate‖ equal protection principles. Id.
    ¶50 Met also contends that section 76-3-207.7 treats similarly
situated defendants differently in allowing some defendants to be
sentenced under section 76-3-207.7 while others are sentenced under
section 76-3-207. Met correctly asserts that these two groups of
defendants are similarly situated in that they are all charged with the
crime of aggravated murder. But, he argues, they are treated
differently in the end because capital defendants are sentenced by a
jury under a statute with additional sentencing guidelines and
requirements due to the potential imposition of the death penalty
and non-capital defendants are sentenced by a judge under a statute
that provides no additional guidelines or requirements. Compare
UTAH CODE § 76-3-207, with § 76-3-207.7.


                                    19
                             STATE v. MET
                         Opinion of the Court

    ¶51 There is a clear difference, however, between defendants
sentenced under these two statutes. While both groups may be
charged with committing similar crimes, they are not similarly
situated: defendants sentenced under section 76-3-207 face a
potential death sentence whereas defendants sentenced under
section 76-3-207.7 do not. The Legislature has a reasonable basis for
treating each group of defendants differently. To overcome the
Eighth Amendment‘s prohibition on cruel and unusual
punishments, the Legislature is constitutionally required to impose a
detailed process that safeguards against ―a substantial risk that [the
death penalty] would be inflicted in an arbitrary and capricious
manner‖ before a defendant can be sentenced to death. Gregg v.
Georgia, 428 U.S. 153, 188 (1976) (discussing Furman v. Georgia, 408
U.S. 238 (1972)). Utah Code section 76-3-207 is designed to satisfy
this requirement. The Eighth Amendment does not require the same
level of protection for defendants facing the possibility of life
imprisonment without parole. See Harmelin v. Michigan, 501 U.S. 957,
995 (1991) (providing that individualized sentencing is required for
capital cases, but declining to extend it to any other sentence because
―even where the difference is the greatest, [those sentences] cannot
be compared with death‖). Because the death penalty is different, in
both a factual and legal sense, from life without parole, the
Legislature has a reasonable basis for treating those facing the death
penalty differently than those who are not. Met has failed to
demonstrate that section 76-3-207.7 violates the federal Equal
Protection Clause.12
   ¶52 We conclude that Utah Code section 76-3-207.7 and Utah‘s
dual-track sentencing structure for those convicted of aggravated
_____________________________________________________________
   12 At oral argument, Met‘s counsel defined an additional class of
defendants: those who were charged with aggravated murder as a
capital offense but were not sentenced to death. Met posits that there
is a period of time—after the jury rejects the death penalty but is still
deliberating whether to impose life without parole—when a
defendant is similarly situated to a defendant charged with non-
capital aggravated murder. Even assuming that the class could be
parsed this finely, the Legislature would have a rational basis for
treating the defendants differently. At the moment of time Met
describes, the additional protections the defendant receives are those
that flow from the decision to seek the death penalty in the first
instance.


                                     20
                           Cite as: 2016 UT 51
                          Opinion of the Court

murder do not violate the various federal and state constitutional
provisions Met raises.
        II. To Successfully Challenge the District Court‘s Decision
             to Allow the Interview Transcript to Be Used for
         Impeachment Purposes, Met Needed to Either Testify or
        Create a Record of What His Testimony Would Have Been
    ¶53 Met next argues that the district court erred by ruling that
the transcript of his police interview, though inadmissible for the
State‘s case-in-chief, was admissible for impeachment purposes.
While the transcript was not actually used at trial because Met
declined to testify, Met contends that the court‘s allegedly erroneous
decision tainted the proceedings by discouraging him from
testifying.
    ¶54 It is undisputed that Met‘s interview was inadmissible as
part of the State‘s case-in-chief because the translator assisting the
interviewing agents grossly misinterpreted the Miranda warning
given to Met prior to his interrogation.13 Despite this, the State asked
the court to rule that the transcript was admissible for impeachment
purposes should Met testify at trial. See Harris v. New York, 401 U.S.
222, 223 (1971). Under Harris, testimony may be admissible for
impeachment purposes, even if no Miranda warning was given, if the
statements were given voluntarily and ―the trustworthiness of the
evidence satisfies legal standards.‖ Id. at 223–24.
    ¶55 After reviewing a video recording of the interview and a
transcript, the district court ruled that the transcript could be
admitted for impeachment purposes because ―[Met‘s] statements to
the officers were voluntary.‖ The court reasoned that the
interrogation did not employ the types of coercive interrogation
techniques that could lead to the conclusion that testimony was not
freely given. For example, the district court noted that the interview
lasted less than two-and-a-half hours; that the interrogation
―techniques used by the officers in this case did not create a coercive

_____________________________________________________________
   13 For example, in the midst of translating the list of Miranda
rights, the translator informed Met ―As for you, you have to tell the
truth,‖ and ―you have the right to tell the facts as you know.‖ In
another exchange, the interrogating officer asked the translator to tell
Met, ―we want to get your side of the story,‖ but the translator told
Met, ―They are going to start and tell a new little story.‖


                                      21
                             STATE v. MET
                         Opinion of the Court

environment that overcame [Met‘s] will‖; that the officers were not
unreasonably persistent; that the ―interpretation problems, although
pervasive throughout the interview,‖ were not coercive and did not
cause Met to make incriminating statements; and that Met
demonstrated a calm demeanor throughout the interview.
   ¶56 Met argues that his statements were not voluntary. He also
argues that the circumstances surrounding his interview were too
untrustworthy to allow the transcript to be used as impeachment
evidence. The State disputes Met‘s substantive argument and also
contends that we should decline to review the district court‘s
decision to admit Met‘s interview for impeachment purposes
because Met did not preserve the argument. The State argues that we
should consider Met‘s argument unpreserved ―because he never
took the stand and the statements were never used against him.‖
   ¶57 The State correctly notes that we have endorsed the United
States Supreme Court‘s holding in Luce v. United States and have
therefore, in the past, required defendants to testify to preserve a
challenge to an evidentiary ruling.14 See State v. Gentry, 747 P.2d
1032, 1036 (Utah 1987); Luce v. United States, 469 U.S. 38, 41–43 (1984).
Luce concluded that to preserve a claim that the district court had
erred by ruling that the defendant could be impeached with
evidence of a prior conviction, the defendant needed to take the
stand. Luce, 469 U.S. at 43; see also id. at 41 (―A reviewing court is
handicapped in any effort to rule on subtle evidentiary questions
_____________________________________________________________
   14 We, and many other courts, speak of this requirement to testify
in terms of preservation. Preservation appears to be an inapt label.
Here, for example, Met preserved his argument in the normal
meaning of our preservation rules by moving the court to suppress
the transcript for all purposes and by specifically responding to the
State‘s argument that the transcript should be allowed for
impeachment. This satisfies the concerns that animate our
preservation rules, including promoting judicial economy by
affording the trial court the opportunity to address the alleged error
and foreclosing the ability to create a tactical advantage by foregoing
an objection with hopes of creating an issue for appeal. See State v.
Larabee, 2013 UT 70, ¶ 15, 321 P.3d 1136. The problem here is not lack
of preservation but rather the lack of a record to assess whether the
alleged error would, in actuality, have had any impact on the
outcome of the trial. To remain consistent with the body of case law
on this topic, we will continue to refer to this as a preservation issue.


                                     22
                          Cite as: 2016 UT 51
                         Opinion of the Court

outside a factual context.‖). The United States Supreme Court
reasoned that if the defendant had testified, the ―Court of Appeals
would then have had a complete record detailing the nature of
petitioner‘s testimony, the scope of the cross-examination, and the
possible impact of the impeachment on the jury‘s verdict.‖ Id. at 41.
The court also noted that when ―the defendant does not testify, the
reviewing court also has no way of knowing whether the
Government would have sought to impeach with the prior
conviction.‖ Id. at 42. It thus declined to offer Luce a new trial when
it had no way of knowing if and how the lower court‘s ruling
impacted Luce‘s trial.
   ¶58 We adopted Luce in Gentry, 747 P.2d at 1036. We were
persuaded by ―the rationale and holding of Luce,‖ that requiring a
defendant to testify to preserve the claim ―will enable the reviewing
court to determine the impact any erroneous impeachment may have
had in light of the record as a whole; it will also tend to discourage
making such motions solely to ‗plant‘ reversible error in the event of
conviction.‖ Id. (quoting Luce, 469 U.S. at 42).
    ¶59 We have not yet had the opportunity to consider whether to
extend this requirement to cases where the underlying objection to
the impeachment evidence focuses on a claim that a confession was
elicited in violation of the defendant‘s constitutional rights. Many
courts have found this distinction significant. Picking up on
language in Luce that suggests the United States Supreme Court
ruled on an issue that ―dealt with a preliminary ruling ‗not reaching
constitutional dimensions,‘‖ the Ninth Circuit Court of Appeals
concluded that Luce‘s reasoning did not apply to a claim that use of
an involuntary confession for impeachment violated the defendant‘s
constitutional rights. See United States v. Chischilly, 30 F.3d 1144,
1150–51 (9th Cir. 1994) (citation omitted) overruled on other grounds by
United States v. Preston, 751 F.3d 1008, 1019–20 (9th Cir. 2014). Several
other courts have reached similar conclusions. See, e.g., State v. Brings
Plenty, 459 N.W.2d 390, 394 (S.D. 1990) (―Luce does not stand for the
proposition that Fifth Amendment confession issues are waived if a
defendant does not take the stand.‖); State v. Brunelle, 534 A.2d. 198,
204 (Vt. 1987) (―Luce is not controlling because, in contrast to the case
at bar, it did not involve constitutionally suppressed evidence.‖);
People v. Henderson, 745 P.2d 265, 266 (Colo. App. 1987) (―Where, as
here, the admissibility of a prior felony conviction is challenged on
constitutional grounds, a defendant is not required to testify at trial
to preserve the issue for review.‖).


                                     23
                            STATE v. MET
                        Opinion of the Court

    ¶60 Other courts have found the distinction to be far less
compelling. A divided Michigan Supreme Court reasoned that
―every case in which a defendant alleges that a trial court‘s ruling
effectively prevented him from testifying‖ presents ―constitutional
implications.‖ People v. Boyd, 682 N.W.2d 459, 464 (Mich. 2004).
Relying, in part, on a number of the considerations that motivated
the Luce court—difficulty in evaluating the impact of a trial court‘s
ruling in a vacuum, and the potential for a defendant to abuse the
structure—the Michigan Supreme Court extended Luce‘s reach to
alleged errors ―implicating a defendant‘s Fifth Amendment privilege
against self-incrimination.‖ Id. at 466. Arizona and other states
similarly extended Luce. See, e.g., State v. Conde, 846 P.2d 843, 848
(Ariz. Ct. App. 1992) (―All of the policy reasons for declining to
consider his claim in the absence of his testimony apply whether his
statement was coerced or . . . obtained in violation of Miranda.‖); see
also Wagner v. State, 347 P.3d 109, 111, 116 (Alaska 2015) (concluding
that ―by declining to testify,‖ a defendant ―failed to preserve his
Miranda claim for appellate review‖); Jordan v. State, 591 A.2d 875,
878 (Md. 1991) (―Although Luce involved the issue of impeachment
by prior conviction rather than a ruling grounded on a constitutional
right not to be impeached with an involuntary confession, we are
persuaded that its reasoning is applicable in the instant case.‖).
    ¶61 We can understand the split in decisions. It is incongruous
to require a defendant to testify to preserve an argument that she has
a right to remain silent. But the concerns that caused us to adopt Luce
in Gentry apply equally in cases involving Fifth Amendment claims.
It is difficult to review and assess the impact of an allegedly
erroneous evidentiary ruling where there is no record of how the
alleged error impacted the case. Here, for example, even assuming
that the district court erred in ruling that the interview transcript
could be used for impeachment, we cannot know whether, but for
that error, Met would have testified or that Met would have testified
inconsistently with his interview. See Luce, 469 U.S. at 42 (―[A]n
accused‘s decision to testify ‗seldom turns on the resolution of one
factor‘‖ and ―a reviewing court cannot assume that the adverse
ruling motivated a defendant‘s decision not to testify.‖ (citation
omitted)). Nor can we assess how that testimony, whatever it might
have been, would have changed the evidentiary picture presented to
the jury. Id. (―Even if these difficulties could be surmounted, the
reviewing court would still face the question of harmless error.‖).
   ¶62 These competing concerns cause us to take a different
approach. We do not impose Luce’s bright-line rule requiring a


                                    24
                          Cite as: 2016 UT 51
                         Opinion of the Court

defendant to testify in order to preserve a claim that a district court
improperly ruled that testimony was procured in violation of a
defendant‘s Fifth Amendment rights. But neither will we assume
that the alleged error must have been harmful in the absence of a
record to review. Instead, if a defendant chooses not to testify after
the district court finds her statements admissible for impeachment,
in order to present a persuasive argument on appeal, that defendant
must, by some means, create and present a record in the district
court sufficient to permit meaningful appellate review. A defendant
who does not wish to testify could, for example, have counsel
proffer—or provide affidavits—to create a reviewable record.15
    ¶63 Met cannot point us to anything in the record that suggests
he would have testified and that his testimony would have provoked
impeachment by his prior interview. Nor has he shown us how that
testimony and imagined impeachment would have changed the
evidentiary landscape. Because we cannot assess the impact of the
district court‘s alleged error in declaring his interrogation transcript
admissible for impeachment purposes, we decline to review the
substance of that decision.16


_____________________________________________________________
   15 We recognize that the Luce court rejected the possibility of
creating a record by proffer out of a concern that the ―trial testimony
could, for any number of reasons, differ from the proffer.‖ Luce, 469
U.S. at 41 n.5. We acknowledge that concern. However, in balancing
a defendant‘s Fifth Amendment rights against the potential for an
inconsistent proffer, we believe that allowing counsel to create a
record by proffer strikes the better balance by intruding less upon a
defendant‘s Fifth Amendment rights. We also trust counsel‘s
professional obligations and the consequences of an inconsistent
proffer to cabin much of the potential for mischief.
   16  In a letter submitted under Utah Rule of Appellate Procedure
24(j), Met argues for the first time that it would be ―grossly unfair‖ to
retroactively apply a rule requiring a defendant to create a record to
preserve a Fifth Amendment claim. By its plain language, rule 24(j)
allows a party to advise the court of ―pertinent and significant
authorities‖ that come to the party‘s attention. The rule is not a
vehicle to permit a party to supplement his or her briefing with new
arguments and, to that end, the rule requires the letter to reference
the ―page of the brief‖ or ―a point argued orally to which the
                                                         (continued . . .)

                                     25
                             STATE v. MET
                         Opinion of the Court

        III. The District Court Did Not Err in Determining that
       the FBI Agents‘ Warrantless Search of Met‘s Apartment
             Was Reasonable Under the Fourth Amendment
   ¶64 Met next argues that the district court erred by denying his
motion to suppress. He contends that the warrantless search of his
apartment was unreasonable within the meaning of the Fourth
Amendment because FBI agents did not obtain valid consent and
because ―no exigent circumstances existed requiring a warrantless
search.‖ He contends therefore that the district court should have
suppressed all evidence flowing from the police‘s alleged illegal
search of his apartment. The State concedes that it did not obtain a
warrant to search Met‘s apartment but argues that the search meets
two exceptions to the Fourth Amendment‘s warrant requirement.
We agree.
    ¶65 The Fourth Amendment provides that ―[t]he right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated.‖
U.S. CONST. amend. IV. A fundamental tenet of the Fourth
Amendment is that ―searches and seizures inside a home without a
warrant are presumptively unreasonable.‖ Brigham City v. Stuart, 547
U.S. 398, 403 (2006) (citation omitted). ―Nevertheless, because the
ultimate touchstone of the Fourth Amendment is ‗reasonableness,‘
the warrant requirement is subject to certain exceptions.‖ Id. (citation
omitted).
    ¶66 One exception allows officers to conduct a warrantless
search when they obtain consent to conduct the search. See State v.
Harding, 2011 UT 78, ¶ 10, 282 P.3d 31 (citing Kentucky v. King, 563
U.S. 452, 463 (2011)). Consent to search a home ―may come from the
person whose property is to be searched, from a third party who has
common authority over the property, or from a third party who has
apparent authority to consent to a search of the property.‖ Id.
(citations omitted).
    ¶67 Another exception allows a warrantless search where
exigent circumstances indicate a ―need to assist persons who are
seriously injured or threatened with such injury.‖ Stuart, 547 U.S. at
403. ―An action is ‗reasonable‘ under the Fourth Amendment,
regardless of the individual officer‘s state of mind, ‗as long as the


citations pertain.‖ Met does neither. And retroactive application was
neither briefed nor mentioned at oral argument.


                                    26
                          Cite as: 2016 UT 51
                         Opinion of the Court

circumstances, viewed objectively, justify [the] action.‘‖ Id. at 404
(alteration in original) (citation omitted).
   ¶68 The district court denied Met‘s motion to suppress because
it determined that the agents obtained consent from Met‘s
roommates to search the apartment‘s common areas, including the
basement‘s main room and bathroom; that Met‘s roommates had
―common authority‖ to consent to a search of the common areas; and
that ―even if [Met‘s] roommates did not have common access to the
basement bathroom, based upon the ‗exigencies of the situation,‘ the
agents had legal cause to search the basement bathroom without
consent.‖
    ¶69 Met‘s challenge to the district court‘s order is twofold. First,
Met contends that his roommate did not have common authority
over the basement of the apartment and so could not consent to the
police‘s search of the basement. Second, Met contends that exigent
circumstances did not justify the search of the basement because
police had no probable cause to believe Victim was in the apartment
until their search of the main room of the basement.
        A. Met’s Roommate Had Common Authority to Consent to a
                 Search of the Main Room of the Basement
    ¶70 To resolve whether a third party has actual common
authority to grant consent to a search of property, we must
determine ―whether the third party has mutual use and control of
the property such that the other party has ‗assumed the risk that [the
third party] might permit the [property] to be searched.‘‖ Harding,
2011 UT 78, ¶ 11 (alterations in original) (quoting United States v.
Matlock, 415 U.S. 164, 171 n.7 (1974)); see also Georgia v. Randolph, 547
U.S. 103, 106 (2006) (―The Fourth Amendment recognizes a valid
warrantless entry and search of premises when police obtain the
voluntary consent of an occupant who shares, or is reasonably
believed to share, authority over the area in common with a co-
occupant who later objects to the use of evidence so obtained.‖).
Common authority exists where there is ―mutual use of the property
by persons generally having joint access or control for most
purposes.‖17 Matlock, 415 U.S. at 171 n.7.

_____________________________________________________________
   17 Met contends that our review of the roommates‘ actual
authority to consent to the agents‘ search of the basement main room
and bathroom is restricted to the facts known to the agents at the
                                                       (continued . . .)

                                     27
                              STATE v. MET
                          Opinion of the Court

    ¶71 The United States Supreme Court has, however, cautioned
against drawing a bright-line rule to determine whether a third party
has the authority to consent to a police search. See Randolph, 547 U.S.
at 111. ―The constant element in assessing Fourth Amendment
reasonableness in the consent cases . . . is the great significance given
to widely shared social expectations, which are naturally enough
influenced by the law of property, but not controlled by its rules.‖ Id.
The Court reasoned,
       Matlock . . . not only holds that a solitary co-inhabitant
       may sometimes consent to a search of shared premises,
       but stands for the proposition that the reasonableness
       of such a search is in significant part a function of
       commonly held understanding about the authority that
       co-inhabitants may exercise in ways that affect each
       other‘s interests.
Id.
   ¶72 It is undisputed that one of Met‘s roommates actually
consented to the agents‘ search of the apartment. The only issue,
then, is whether Met‘s roommate had the authority to consent to a
search of the basement‘s main room and bathroom.
   ¶73 The district court concluded that all of Met‘s roommates had
common authority over and access to the main room and bathroom
of the basement ―and gave appropriate consent to the agents to
search that area.‖18 The district court found that each of Met‘s


time the consent was given. We disagree. A court is permitted to
look at facts not known to the officers at the time they obtain consent
to determine whether the consenting party had actual authority to
consent. See State v. Buhler, 52 P.3d 329, 333–34 (Idaho Ct. App. 2002)
(holding ―that the State is not limited to relying upon information
known to the police at the time of their warrantless entry in order to
prove actual authority possessed by the person who consented to the
search‖); see also United States v. Groves, 530 F.3d 506, 510 n.1 (7th Cir.
2008) (―Of course, many of these facts were not known by the
officers until after they entered the premises and thus those facts are
relevant only to actual and not apparent authority to consent.‖).
    18 Because we subsequently affirm the district court‘s holding that

the agents‘ warrantless search of the basement bathroom was
authorized by exigent circumstances, we decline to review the
district court‘s conclusion that the roommates could and did consent
                                                           (continued . . .)

                                      28
                          Cite as: 2016 UT 51
                         Opinion of the Court

roommates ―had equal access and control‖ over the main room of
the basement and thus could authorize a police search of the main
room. The district court‘s determination rested largely on testimony
that Met‘s roommates stored personal belongings, including
mountain bikes and DVDs, in the main room of the basement, and
on the roommates‘ testimony that they could ―come and go‖ from
the basement main room ―without asking permission from [Met].‖
    ¶74 Met contends that his roommates could not consent to a
search of the basement because they did not have authority to access
the basement. Met also contends there was no common authority
because ―[t]he State presented no evidence that the consentor, [Met‘s
roommate], had ‗shared use of the premises and joint access or
control‘ of the basement.‖ We disagree. The State presented
sufficient evidence to establish that Met‘s roommates had common
authority over the basement main room. See State v. Perea, 2013 UT
68, ¶ 32, 322 P.3d 624 (stating that we review a district court‘s factual
findings in support of a suppression ruling for clear error, which we
will only find ―if the court‘s factual findings ‗are not adequately
supported by the record, resolving all disputes in the evidence in a
light most favorable to the trial court‘s determination‘‖ (citation
omitted)). First, the roommates‘ testimony that they stored personal
belongings in the main room of the basement is strong evidence that
they had joint access to and control over the basement main room.
On appeal, Met concedes this point, admitting that the roommates
were authorized to enter the basement. But Met attempts to argue
that this ―limited purpose‖ entry does not confer common authority.
Beyond his failure to cite authority to support this proposition, Met
fails to credit our holding in State v. Brown, 853 P.2d 851 (Utah 1992).
    ¶75 In Brown, we reviewed the denial of a defendant‘s motion to
suppress evidence obtained in a trailer shared by the defendant and
two other individuals. See id. at 855. In addition to allowing the three
individuals to reside in the trailer, the owner of the trailer also stored
food and other materials for his employees in the ―common area‖ of
the trailer. Id. The record also indicated that access to the common
area of the trailer was extended to individuals beyond the three
residents. Id. We concluded that the trailer owner had a right to
consent to the search of the common areas of the trailer because of its
common use by many individuals, including the owner. Id. at 856.

to the agents‘ search of the basement bathroom by virtue of their
common authority over the bathroom.


                                     29
                             STATE v. MET
                         Opinion of the Court

    ¶76 Similar to Brown, the record here indicates that Met‘s
roommates had common authority over the basement main room.
The State presented evidence demonstrating that Met‘s roommates
actually used the basement main room to store certain personal
items, that one of the roommates ―used to go down [in the basement]
to get‖ his DVDs, and testimony that Met‘s roommates could access
the main room without first obtaining Met‘s permission. In addition,
the basement was not enclosed or set off from the rest of the
apartment by a door or in any other way; the basement main room
was accessible from the main floor via an open stairway. Met
attempts to conflate his roommates‘ general lack of need or desire to
enter the basement with a lack of authority to enter the basement.
Although Met‘s roommates may have infrequently accessed the
basement main room in the short time Met resided there, there is
sufficient evidence to indicate that they had the authority to do so if
the need or desire arose. In light of the roommates‘ access to the
basement main room, they possessed the authority to consent to the
search of that area.19




_____________________________________________________________
   19  Met also raises State v. Duran, 2005 UT App 409, 131 P.3d 246,
aff’d, 2007 UT 23, 156 P.3d 795, as evidence that the district court
should have determined that Met‘s roommates lacked common
authority in this case. In Duran, the Utah Court of Appeals
concluded that an owner of a trailer, who rented the trailer to her
son, could not consent to a police search of the trailer because ―[t]he
State presented no evidence that would support a finding that
Mother shared the use of the [trailer].‖ Id. ¶ 12. The court reasoned,
―[t]here is no evidence that Mother had a key to the trailer or that she
could enter it when [her son] was not present. Without a showing of
common authority, Mother could not give valid consent to the
search.‖ Id.
    Duran is distinguishable from this case in important respects. In
Duran, the State ―presented no evidence‖ that the mother had the
authority to access the trailer without her son‘s permission. See id.
Nor did the State present any evidence that the mother actually
accessed the trailer for any purpose. Id. But here there is ample
evidence demonstrating that Met‘s roommates could and actually
did access the basement main room without first obtaining Met‘s
consent.


                                    30
                         Cite as: 2016 UT 51
                        Opinion of the Court

    ¶77 We thus conclude that the district court did not err in
concluding that Met‘s roommates had common authority to consent
to the agent‘s warrantless search of the basement main room.
      B. The ‘Exigencies of the Situation’ Authorized the Agents’
     Warrantless Search of the Basement Bathroom Once They Found
                Blood in the Main Room of the Basement
    ¶78 Met also contends that the district court erred in concluding
―that exigent circumstances justified the warrantless search of the
basement.‖ The court determined that the agents‘ warrantless search
of the basement bathroom was authorized as an exigent
circumstance indicating a ―need to protect or preserve life or avoid
serious injury.‖ The district court determined that once the agents
entered the basement‘s main room and observed blood on the carpet
and blood splatter on a wall, they were justified in searching the
entire basement because ―they were looking for a missing child that
could have been seriously injured.‖
    ¶79 Courts have long recognized that ―law enforcement officers
may enter a home without a warrant to render emergency assistance
to an injured occupant or to protect an occupant from imminent
injury.‖ Stuart, 547 U.S. at 403. Our analysis under this standard is
restricted to determining whether the officers‘ beliefs were ―plainly
reasonable under the circumstances.‖ Id. at 406.
    ¶80 We agree with the district court that once the officers saw
the blood on the carpet and walls, it was ―plainly reasonable‖ for
them to conclude that exigent circumstances justified entering the
other basement rooms without first obtaining a warrant. As the
district court aptly described, at the time the officers became aware
of the blood stains on the basement‘s walls and floor, ―the agents
were not looking for a dead body; they were looking for a missing
child that could have been seriously injured.‖ The blood would have
suggested to a reasonable officer that someone, possibly Victim—
who at that point had been missing for fewer than thirty-six hours
and had disappeared from the apartment complex the officers were
searching—had been seriously injured and, if still alive, was likely in
need of emergency assistance. Because of the potential need to
render emergency assistance, it was objectively reasonable for the
agents to enter the basement bathroom, which excuses their failure
to obtain a warrant prior to entering.
   ¶81 In light of the combination of actual consent for the search of
the main basement room and exigent circumstances allowing
warrantless entry into the bathroom, the district court did not err in

                                    31
                             STATE v. MET
                         Opinion of the Court

denying Met‘s motion to suppress evidence obtained from the
warrantless search of Met‘s apartment.20
           IV. The District Court Did Not Err in Admitting
                   Two Photographs into Evidence
    ¶82 Met also argues that the district court erred by admitting
two photographs into evidence that he argues are ―gruesome and
inflammatory.‖ We disagree; the court properly ruled that the
photographs are admissible under rule 403 of the Utah Rules of
Evidence. Before we analyze the district court‘s decision, however,
we clarify the standard a district court should employ to assess the
admissibility of allegedly gruesome photographs.
    ¶83 Utah Rule of Evidence 403 provides the test for evidence‘s
admissibility. The gruesomeness test this court described in State v.
Lafferty, 749 P.2d 1239 (Utah 1988), and the factors this court outlined
in State v. Bluff, 2002 UT 66, 52 P.3d 1210, distract from the plain
language of the Utah Rules of Evidence. Admissibility of allegedly
gruesome materials should be assessed without the gloss that we
have placed upon rule 403.
   A. The Historical Development of Utah’s Gruesome-Photograph Test
   ¶84 It appears that the first published cases discussing the
admissibility of arguably gruesome photographs utilized the then-
applicable version of rule 403 of the Utah Rules of Evidence. See State
v. Woods, 220 P. 215, 220 (Utah 1923); see also State v. Poe, 441 P.2d
512, 515 (Utah 1968) (―[I]t is within the sound discretion of the trial
court to determine whether the inflammatory nature of such slides is
outweighed by their probative value with respect to a fact in issue. If
the latter they may be admitted even though gruesome.‖).21

   ¶85 In the 1980s, however, this court began to focus on factors
the plain language of rule 403 did not contain and to impose

_____________________________________________________________
   20Met argues only that exigent circumstances did not exist here;
he raises no argument that the agents‘ search of the basement
exceeded the proper scope or duration of an exigency-based search.
Accordingly, we do not address those issues.
   21 See generally R. COLLIN MANGRUM & DEE BENSON, MANGRUM
& BENSON ON UTAH EVIDENCE 170–73 (2015) (describing the history
of rule 403 of the Utah Rules of Evidence as applied to ―gruesome‖
photographs and videos).


                                    32
                           Cite as: 2016 UT 51
                          Opinion of the Court

additional burdens on the evidence‘s proponent. In State v. Garcia,
this court concluded that gruesome color photographs of homicide
victims should be reviewed to determine ―whether the viewing of
the photographs by the jury would create a substantial danger of
undue prejudice against the defendant, and if so, whether that
danger substantially outweighs the photographs‘ essential
evidentiary value.‖ 663 P.2d 60, 64 (Utah 1983). The court also
explained that ―[t]he point of the reference to ‗essential evidentiary
value‘ in the context of potentially prejudicial photographs of the
victim‘s body is that such photographs would generally be
inappropriate where the only relevant evidence they convey can be
put before the jury readily and accurately by other means not
accompanied by the potential prejudice.‖ Id. Then, based on Garcia,
this court pronounced in State v. Cloud that ―potentially prejudicial
photographs are ‗generally inappropriate‘ and should not be
admitted in evidence unless they have some essential evidentiary
value that outweighs their unfairly prejudicial impact. Only after a
determination has been made that the photographs have such value
need the weighing be made.‖ 722 P.2d 750, 753 (Utah 1986) (citation
omitted).
    ¶86 Later, in State v. Lafferty, this court created a test that we said
would apply to ―certain categories of relevant evidence‖ with ―an
unusually strong propensity to unfairly prejudice, inflame, or
mislead a jury.‖ 749 P.2d at 1256. When the State attempts to admit
certain evidence, including ―gruesome photographs of a homicide
victim‘s corpse,‖ we held that the State must show that the evidence
possessed ―unusual probative value.‖ Id. (emphasis added). The
court cautioned that this evidence ―is uniquely subject to being used
to distort the deliberative process and improperly skew the
outcome‖ and held that ―the probative value of such evidence is
presumed to be ‗substantially outweighed by the danger of unfair
prejudice.‘‖ Id. (citation omitted).
  ¶87 We later described a three-part test ―for reviewing the
admissibility of allegedly gruesome photographs‖:
       First, we determine whether the photograph is
       relevant. Second, we consider whether the photograph
       is gruesome. Finally, we apply the appropriate
       balancing test. If the photograph is gruesome, it should
       not be admitted unless the State can show that the
       probative value of the photograph substantially
       outweighs the risk of unfair prejudice. If the
       photograph is not gruesome, it should be admitted

                                      33
                             STATE v. MET
                         Opinion of the Court

       unless the defendant can show that the risk of unfair
       prejudice substantially outweighs the probative value
       of the photograph.
State v. Gulbransen, 2005 UT 7, ¶ 34, 106 P.3d 734 (citation omitted).
   ¶88 To guide courts in the determination of whether a
photograph is gruesome, we eventually articulated a number of
nonexclusive factors for consideration:
       First, we consider whether the photograph is in color
       or black and white, because color photographs are
       generally more disturbing because of their ability to
       provide the viewer with vivid images of
       blood, wounds, bruising, and the like. . . . Color alone
       is not determinative, however. . . . Second, we consider
       whether the photograph is an enlargement or close-up
       shot, again, because enlarged photographs and close-
       ups show greater detail and therefore are often more
       disturbing than a life-like view. . . . Also, an
       enlargement or close-up may give a distorted
       impression of the thing photographed. Third, we
       consider when the photograph was taken in relation to
       the crime and whether it depicts the victim as found at
       the crime scene. . . . Fourth, we consider whether other
       details in a photograph, aside from the victim, may
       render a photograph gruesome [because] the
       composition in the photograph may exacerbate the
       photograph‘s impact on the viewer.
State v. Bluff, 2002 UT 66, ¶ 43, 52 P.3d 1210 (alterations in original)
(citation omitted). ―The purpose of considering these factors‖ we
held, ―is to identify photographs that have a tendency to ‗unfairly
prejudice, inflame, or mislead the jury.‘‖ Id.
         B. The Proper Standard for Assessing the Admissibility
                  of Allegedly Gruesome Photographs
    ¶89 This case presents the opportunity to explicitly abandon the
test that Lafferty, Bluff, and Gulbransen describe. All relevant
photographs, regardless of their alleged ―gruesomeness,‖ are subject
to the balancing test set out in rule 403. Thus, upon a challenge to the
admissibility of a photograph, the court ―may exclude relevant
evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.‖ See UTAH R. EVID. 403.

                                    34
                          Cite as: 2016 UT 51
                         Opinion of the Court

The burden rests on the shoulders of the party seeking to exclude the
photograph to prove that its potential for unfair prejudice
substantially outweighs its probative value.
    ¶90 Because we disavow the need for a threshold determination
of gruesomeness, we also abandon the factors Bluff discussed as any
sort of formal test. That is not to say that the factors identified in our
prior cases should be forever consigned to the dust-bin. Indeed, a
district court may consider the unfair prejudice that might flow from
a photograph that depicts a close-up or enlarged view of a wound.
But parties are not required to view the factors Bluff discussed as a
mandatory checklist for admission, and courts should not treat them
as factors to be weighed against one another.22 Rather, these
considerations, if used, must be utilized to inform the ultimate rule
403 test—whether the probative value of a photograph is
substantially outweighed by a danger of unfair prejudice or the other
considerations rule 403 describes.
         C. The District Court Did Not Err in Admitting the Two
                         Photographs into Evidence
   ¶91 The first photograph Met challenges
        depicts [Victim] lying face down in a shower stall. Her
        face is not visible. The top of [Victim‘s] head is not
        depicted in the photo, nor are her arms; however, one
        wrist and one hand are showing. She is wearing a pink
        coat and a pink skirt. Her skirt is raised to show that
        she is not wearing any underwear. Her legs are pushed
        up in a bent position so that her knees are above her
        waist. The photo does not show any blood or obvious
        bruising or wounds on the body.
The second photograph ―depicts a clean, close-up shot of [Victim‘s]
genitalia.‖ The photo does not include ―blood or other open or


_____________________________________________________________
   22  We recently reached a similar conclusion about the so-called
Shickles factors in State v. Cuttler, 2015 UT 95, ¶ 18, 367 P.3d 981.
There, we noted that the ―Shickles factors should not limit the
considerations of a court when making a determination of evidence‘s
admissibility under rule 403.‖ Id. But we also instructed that ―this is
not to say that the Shickles factors, taken individually, have no place
in a rule 403 analysis.‖ Id. ¶ 19.


                                     35
                            STATE v. MET
                        Opinion of the Court

graphic injuries.‖ The district court ruled that both photographs
were admissible under the Utah Rules of Evidence.
   ¶92 The court found the first photograph was relevant under
rule 401 because ―[i]t shows, among other things, the clothes
[Victim] was wearing at the time she died, the location of [Victim‘s]
body, the position she was in, and that she was not wearing any
underwear—evidence relevant to some of the aggravating factors
associated with the aggravated murder charge.‖ The court also noted
that the photograph, together with other photographs, demonstrates
that a struggle took place upstairs and extended to the basement
bathroom and that ―shower water was run over [Victim‘s] body.‖
      ¶93 The court also found that the first photograph satisfied rule
403—i.e., that its probative value is not substantially outweighed by
the danger of unfair prejudice.23 See UTAH R. EVID. 403. It reasoned,
―The photograph is highly probative, and the Court does not
perceive that the photo will lead a jury to be so shocked and angry
. . . that they will be overwhelmed by emotion and be unable to fairly
judge the facts of the case.‖
   ¶94 The court found the second photograph to be relevant
because the photograph showing ―the three-dimensional nature of
the wound is necessary to show penetration, an element of some of
the aggravating factors associated with the charge of aggravated
murder.‖ The court also determined that the photograph satisfied
rule 403 because it was a clean photograph, highly probative of
Victim‘s genital injury, and because viewing the photograph would
not ―lead the jurors to become so angry or upset that they [would] be
unable to fairly judge the facts of the case.‖
   ¶95 Met does not challenge the relevance of the photographs,
but argues that the district court should have excluded them because
they were ―gratuitous, unnecessary, [and] inflammatory and
prejudicial.‖
    ¶96 Our standard of review prevents us from overturning a
district court‘s rule 403 evidentiary ruling unless the district court
abused its discretion. See State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d

_____________________________________________________________
   23The district court applied the ordinary rule 403 balancing test,
rather than the ―gruesomeness‖ test set out in Lafferty, which we
now abandon, to the two photographs because it concluded that the
two photographs were not gruesome.


                                    36
                          Cite as: 2016 UT 51
                         Opinion of the Court

981. A district court abuses its discretion under rule 403 only where
it applies the wrong legal standard or its decision ―is beyond the
limits of reasonability.‖ Id. (citation omitted). Met argues that the
district court applied the wrong legal standard by failing to review
the photographs under the gruesomeness standard in Lafferty. We
need not review the district court‘s determination that the
photographs were not gruesome within the meaning of Lafferty
because we conclude that the test set out in Lafferty is no longer good
law and because the district court determined the admissibility of
the photographs under the correct legal standard—the balancing test
set out in rule 403.
    ¶97 We also reject Met‘s argument that the district court erred
in its application of rule 403. The two photographs, while unpleasant
to view, have probative value. The photographs support the State‘s
contentions that Victim had been sexually assaulted; that her
underwear had been removed; that a lengthy confrontation took
place between Victim and her assailant; that Victim‘s body was wet,
demonstrating that the assailant likely attempted to wash evidence
from Victim; and the condition and location of Victim‘s body. The
court did not err in concluding that the photographs had probative
value. See State v. Renzo, 443 P.2d 392, 397 (Utah 1968) (―While the
pictures admitted in evidence might be improper to show outside of
the courtroom, they afforded mute evidence of the depravity of the
one who killed the victim. This evidence was material and
relevant.‖).
    ¶98 Nor has Met shown that the district court abused its
discretion by concluding that the photographs did not present risk of
unfair prejudice. Met contends the evidence should have been
excluded because one showed the Victim ―laying crumpled up,
lifeless in a shower stall‖ and the other is a ―particularly horrific
photo of [Victim‘s] vaginal opening, in gruesome and horrific
detail.‖ Met complains that both photographs were projected onto a
screen for the jury‘s view. The district court concluded the first
photograph is not unduly prejudicial because it does not show the
Victim‘s face, open wounds, physical injuries, or blood. The second
photograph, according to the district court, is a sterile depiction of
Victim‘s genitalia, devoid of blood or open injuries. The district court
ultimately concluded that the photographs are not so graphic that
they ―will lead the jurors to become so angry or upset that they will
be unable to fairly judge the facts of the case.‖ Met has not met his
burden of establishing that these conclusions fell outside the bounds
of the district court‘s discretion.

                                    37
                             STATE v. MET
                         Opinion of the Court

    V. The District Court Correctly Determined that Met‘s Child
   Kidnapping Conviction Does Not Merge with His Aggravated
                        Murder Conviction
   ¶99 Met next contends that the district court erred by failing to
merge his child kidnapping conviction with his aggravated murder
conviction. The district court denied Met‘s motion to merge the
convictions because ―sufficient evidence‖ supported ―a separate
conviction on the child kidnapping count in addition to the
aggravated murder count.‖24
    ¶100 The doctrine of common law merger exists to prevent a
criminal defendant from being ―punished twice for conduct that
amounts to only one offense, a result contrary to protections against
double jeopardy.‖ State v. Lee, 2006 UT 5, ¶ 31, 128 P.3d 1179. We
have noted that some ―crimes may be so related that they must
merge even though neither is a lesser included offense of the other.‖
Id. In State v. Finlayson, this court adopted a test to determine when a
conviction based on a detention ―incidental to‖ another crime should
be merged with the related crime:
        [I]f a taking or confinement is alleged to have been
        done to facilitate the commission of another crime, to
        be kidnaping the resulting movement or confinement:
            (a) Must not be slight, inconsequential and merely
        incidental to the other crime;
            (b) Must not be of the kind inherent in the nature of
        the other crime; and
            (c) Must have some significance independent of the
        other crime in that it makes the other crime
        substantially easier of commission or substantially
        lessens the risk of detection.
2000 UT 10, ¶ 23, 994 P.2d 1243 (alteration in original).



_____________________________________________________________
   24 The district court also denied the motion because it concluded
Utah Code section 76-5-202(5) prevented the merger of Met‘s two
convictions. Met does not appear to challenge this conclusion, but
the State has not asked us to affirm on this alternative ground.
Because neither party has briefed the issue, we confine our analysis
to Met‘s contention that the convictions should be merged under
State v. Finlayson, 2000 UT 10, ¶ 23, 994 P.2d 1243.


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                        Opinion of the Court

    ¶101 In Finlayson, we reversed the defendant‘s conviction for
aggravated kidnapping while affirming his convictions for forcible
sodomy and rape. See id. ¶ 1. Finlayson sexually assaulted a college
classmate. Id. ¶¶ 2–4. Finlayson detained the victim for a period of
time after the sexual assault and prevented victim‘s several attempts
to escape from the apartment. Id. ¶ 4. Later, Finlayson drove victim
around in the car for approximately an hour until he dropped the
victim off at her apartment. Id. ¶ 5.
    ¶102 We concluded that ―Finlayson‘s detention of the victim up
to the time of the rape and sodomy was incidental to the assault,
rather than having an independent significance.‖ Id. ¶ 23.
Finlayson‘s ―carrying the victim into the bedroom, handcuffing her,
and physically preventing her escape while the sex crimes were in
progress constituted a detention that was ‗slight, inconsequential
and merely incidental to the other crime[s].‘‖ Id. (alteration in
original). We reasoned that ―to hold otherwise would transform
virtually every rape and robbery into a kidnapping as well.‖ Id. We
also noted that Finlayson‘s actions after the assault—detaining the
victim for ten minutes before driving her home and driving her
home for at least half an hour longer than necessary, by a circuitous
route, with a jacket over her head—had independent significance
from the detention inherent in sexual assault. Id. ¶ 32–33. We found,
however, that the detention did not transform the kidnapping into
an aggravated kidnapping because Finlayson did not act with the
intent to facilitate his flight from the assault. Id. ¶ 33.
   ¶103 In State v. Lee, we examined whether a defendant‘s
kidnapping conviction should merge with his aggravated assault
conviction. See 2006 UT 5, ¶ 1, 128 P.3d 1179. Lee approached two
eighteen-year-old women who were walking on the side of a
highway. Id. ¶ 3. After the two declined Lee‘s offer to ―party,‖ Lee
grabbed and sexually assaulted one of the women. Id. ¶ 4. The
women escaped, but Lee caught up with them. Id. The defendant
approached the pair from behind and grabbed one of the women by
the hair, ―slammed her to the pavement,‖ and then ―proceeded to
drag her by the hair across‖ the highway to an alley between two
buildings. Id. Lee kicked the woman multiple times in the head,
―rolled her over, pulled down her pants, and got on top of her.‖ Id.
After the second woman intervened, the two were able to escape
from the defendant. Id. ¶ 5. Lee was eventually arrested, charged,
and convicted of two counts of aggravated assault and one count of
aggravated kidnapping. Id. ¶ 10.


                                   39
                            STATE v. MET
                        Opinion of the Court

    ¶104 Lee argued that the district court plainly erred by failing to
merge his aggravated kidnapping conviction into his aggravated
assault conviction. He claimed that ―any kidnap[p]ing . . . was
merely a component of the corresponding assault; it was incidental
to, and indeed indistinguishable from, the assault.‖ Id. ¶ 25. We
rejected that argument and concluded that ―dragging [the victim]
across a highway by her hair was not ‗slight, inconsequential and
merely incidental to‘ the assault Lee had already commenced against
her.‖ Id. ¶ 34 (citation omitted). Nor was the kidnapping ―inherent in
the nature of‖ the assault; we noted that ―most assaults do not
involve the relocation of the victim from one site to another.‖ Id. We
also concluded that the kidnapping was independently significant
from the assault because it allowed Lee to relocate the victim away
from her friend, ―thereby rendering further assault, or even rape,
‗substantially easier of commission‘‖ and because it significantly
reduced the potential that defendant‘s crime would be detected. Id.
(citation omitted).25

_____________________________________________________________
   25 It is not immediately apparent how to distinguish the detention
in Finlayson—which we found to have no independent significance—
from the detention in Lee—which we concluded supported a
separate kidnapping conviction. Finlayson moved the victim from
an unidentified room in his apartment to his bedroom, where he
handcuffed her; Lee dragged a victim across Highway 40 to an alley
separating two buildings. The different conclusions might be
explained by our observation that ―[t]he only argument asserted by
the prosecutor at trial in support of the aggravated kidnapping
charge was defendant‘s handcuffing of the victim.‖ Finlayson, 2000
UT 10, ¶ 13. So the question of whether relocating the victim
possessed independent significance was not presented at trial or on
appeal.
       Finlayson also does not adequately explain why we concluded
that the detention—including handcuffing the victim—was merely
incidental and did not make ―the other crime substantially easier of
commission.‖ Id. ¶ 23 (citation omitted). Our recitation of the facts
recounts that Finlayson‘s victim had ―made several unsuccessful
attempts to escape‖ until Finlayson ―handcuffed her.‖ Id. ¶ 4.
Perhaps the results in Finlayson and Lee cannot be easily reconciled
and we have not yet had the opportunity to reconsider our
conclusion that handcuffing the victim in response to one of ―several
unsuccessful attempts to escape‖ was ―incidental to the assault,
                                                      (continued . . .)

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                        Opinion of the Court

   ¶105 On appeal, Met contends there was ―no proof that any
detention exceeded that necessary to commit the assault and
homicide.‖ The district court, applying the Finlayson test and Lee’s
reasoning, correctly concluded that Met‘s detention of Victim had
significance independent from the detention involved in her murder.
    ¶106 First, Met‘s kidnapping of Victim was more than ―slight,
inconsequential and merely incidental to‖ the murder. See Finlayson,
2000 UT 10, ¶ 23. The district court noted that ―the crime scene
evidence shows that [Victim] and [Met] had an extended
confrontation,‖ that ―the blood scene evidence shows that [Victim]
was moved throughout the downstairs of the apartment,‖ and that a
―trail of blood led from the bottom of the stairs into the downstairs
bathroom where [Victim‘s] body was later found.‖ Moreover,
medical experts opined that Victim was alive when she was sexually
assaulted and that Victim had suffered many injuries that were non-
life threatening and independent from those that caused her death.
The sexual assault and relocation constituted, in the district court‘s
words, ―a detention apart from the time that it took to cause the
homicide.‖
   ¶107 Second, the district court did not err in concluding that a
detention of the kind at issue here is not ―inherent in the nature‖ of
murder. See id. As noted above, Met engaged in a number of actions
that were extraneous to the murder: he sexually assaulted Victim
and inflicted numerous non-life-threatening injuries upon her. Met‘s
kidnapping and relocation of Victim are not so intertwined with the
murder that we can say that the former are inherent in the nature of
the latter.
    ¶108 Last, the district court correctly concluded that the
detention had ―some significance independent of the other crime in
that it makes the other crime substantially easier of commission or
substantially lessens the risk of detection.‖ See id. The court noted
that evidence ―showed that the assault began somewhere on the
stairs of the apartment and ended in the bathroom. Had the assault
begun and ended at the bottom of the stairs, [Met‘s] room-mates
may have seen [Victim] as soon as they returned home.‖ This

rather than having an independent significance.‖ Id. ¶¶ 4, 23. Or
perhaps we need to, in the appropriate case, examine the concerns
that motivated us to adopt the doctrine of common-law merger,
assess the continued potency of those concerns, and evaluate
whether Finlayson continues to be the correct test to address them.


                                   41
                             STATE v. MET
                         Opinion of the Court

allowed the district court to properly decide that Met‘s detention of
Victim substantially lessened the risk of detection and infused the
detention with significance independent of the murder.
    ¶109 The district court did not err in declining to merge Met‘s
child kidnapping and aggravated murder convictions. Victim‘s
detention was sufficiently independent of her murder such that Met
is not being punished twice for the same conduct.
   VI. Met Was Not Prejudiced by His Trial Counsel‘s Decision to
                 Withdraw the Mistrial Motion
   ¶110 Met also contends that his trial counsel provided
constitutionally ineffective assistance by withdrawing a mistrial
motion based on a crime scene investigator‘s failure to test or
preserve a spot, which may have contained blood, found on the
upstairs floor of Met‘s apartment.
    ¶111 On the eighth day of trial, a prosecutor notified the district
court and opposing counsel of potentially exculpatory evidence. The
prosecutor stated that he learned the previous night that a crime
scene investigator had tested a reddish-brown spot on the upstairs
floor of the apartment and preliminary tests had indicated that it was
blood. The investigator and his team did not conduct further testing
of, or otherwise preserve, the spot because they believed that the
upstairs was not a relevant part of the crime scene. Prior to the
revelation, the prosecutor had apparently been under the impression
that the spot was betel-nut residue. Met‘s trial counsel initially
pursued a mistrial motion based on the State‘s failure to test and
preserve the evidence, but later withdrew that motion, representing
to the court that further research had suggested that the motion
would not succeed.
    ¶112 A defendant‘s Sixth Amendment right to counsel
embraces the right to the effective assistance of counsel. See McMann
v. Richardson, 397 U.S. 759, 771 n.14 (1970). Under Strickland v.
Washington, a defendant must meet a two-part test to effectuate an
ineffective assistance of counsel claim. See 466 U.S. 668, 687 (1984).
First, ―the defendant must show that counsel‘s performance was
deficient.‖ Id. This requires a showing ―that counsel‘s representation
fell below an objective standard of reasonableness.‖ Id. at 688.
Second, ―the defendant must show that the deficient performance
prejudiced the defense.‖ Id. at 687. ―This requires showing that
counsel‘s errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.‖ Id. ―Unless a defendant makes
both showings, it cannot be said that the conviction . . . resulted from

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                         Opinion of the Court

a breakdown in the adversary process that renders the result
unreliable.‖ Id.
    ¶113 Moreover, we ―indulge in a strong presumption that
counsel‘s conduct [fell] within the wide range of reasonable
professional assistance, and that, under the circumstances, the
challenged action might be considered sound trial strategy.‖ State v.
Houston, 2015 UT 40, ¶ 70, 353 P.3d 55 (alteration in original)
(citation omitted). This presumption accounts for the widely varying
―circumstances faced by defense counsel [and] the range of
legitimate decisions regarding how best to represent a criminal
defendant.‖ Id. (alteration in original) (citation omitted).
    ¶114 Even assuming, however, that Met‘s trial counsel‘s failure
to pursue the mistrial motion was deficient, we conclude that Met
cannot establish that he was prejudiced by his trial counsel‘s failure
to pursue the mistrial motion. To establish prejudice under
Strickland, Met must demonstrate ―that there is a reasonable
probability that, but for counsel‘s unprofessional errors, the result of
the proceeding would have been different.‖ 466 U.S. at 694. This
probability must be sufficient to ―undermine [our] confidence in the
outcome‖ of the proceeding. Id. And even viewing the destroyed
evidence most favorably to Met, we cannot with confidence say that
the result in this case would have been different.
    ¶115 Substantial evidence ties Met to the Victim‘s murder. Met
had a relationship with Victim. Victim was discovered in Met‘s
bathroom. Multiple spots of Victim‘s blood were found on the denim
jacket Met wore the night he was arrested. Met was identified as a
possible source of DNA found under Victim‘s fingernails, while
Met‘s roommates were ruled out as contributors. Met also had
various injuries on his inner thigh, hip, and calf that were consistent
with scrapes caused by fingernails.
    ¶116 Moreover, the unpreserved spot was located far away
from the other evidence of Victim‘s murder. Met does not articulate
how this spot, even assuming it was blood, would have affected the
proceedings. Met does not provide us with the argument that he
would have made had he known about the blood spot nor does he
attempt to explain how this evidence would have changed his
approach at trial or the trial‘s outcome. And we are not convinced—
given the entirety of the evidentiary picture presented at trial—that
the proceedings in this case would have been impacted. Thus, even
assuming that Met‘s trial counsel provided ineffective assistance, our
confidence in the jury‘s verdict is not undermined.

                                    43
                             STATE v. MET
                         Opinion of the Court

            VII. The District Court‘s Misstatement of Law
    ¶117 Met argues that the district court erred in sentencing him
on the aggravated murder charge because it mistakenly believed that
life without parole was the presumptive sentence for aggravated
murder. During sentencing, the court correctly determined the
presumptive sentence for Met‘s child kidnapping conviction with
aggravating circumstances to be life in prison without parole. See
UTAH CODE § 76-5-301.1(3)(b). But the court incorrectly stated that
the presumptive sentence for Met‘s aggravated murder conviction
was life in prison without parole. The court then sentenced Met to
life in prison without the possibility of parole for his aggravated
murder conviction. The court ordered the two life-without-parole
sentences to be served concurrently.
    ¶118 Contrary to the court‘s statement, Utah Code section 76-3-
207.7 provides that those convicted of noncapital aggravated murder
shall be sentenced to ―life in prison without parole[] or an
indeterminate prison term of not less than 20 years and which may
be for life.‖ UTAH CODE § 76-3-207.7 (2007) (emphasis added). The
statute‘s plain language does not contain the presumption the
district court described. Rather, it is within the court‘s discretion,
after considering and weighing the applicable sentencing factors, to
sentence Met to either an indeterminate term of not less than twenty
years or for a term of life in prison without parole.
    ¶119 We have previously considered how to proceed in a
similar circumstance. In State v. Reece, the defendant argued that the
sentencing court abused its discretion by sentencing him to life in
prison without parole based on the incorrect belief that that sentence
was the presumptive sentence under Utah Code section 76-3-207.7.
2015 UT 45, ¶ 81, 349 P.3d 712. The sentencing court imposed a
sentence of life in prison without parole after considering ―the
totality of the circumstances‖ and weighing the aggravating and
mitigating circumstances. Id. ¶ 84. The court‘s later post-trial ruling,
however, stated that life in prison without parole ―was the
presumptive sentence.‖ Id. We agreed that this was an incorrect
interpretation of the statute and noted ―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.‘‖ Id. ¶ 81 (citation omitted).
   ¶120 Although we determined that the sentencing court had
misconstrued the statute, we could not discern whether the
sentencing court‘s incorrect understanding of the law had affected its
sentencing decision. See id. ¶¶ 82–84. To resolve this ambiguity, we

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                        Opinion of the Court

remanded the sentencing decision to the district court. Id. ¶ 84. We
directed the sentencing court to first ―determine whether its
incorrect reading of the sentencing statute affected its decision to
impose [life in prison without parole].‖ Id. If the court determined
that its incorrect statement of law had no effect on its sentencing
decision, no further action by the court was required. See id. If,
however, the sentencing judge determined that the incorrect
understanding of the statute did impact its sentencing decision, then
we directed the court to vacate the original sentence and ―hold a new
sentencing hearing.‖ Id.
    ¶121 Similarly here, we remand the issue to the district court to
allow the original sentencing judge to determine whether the
incorrect statement affected the decision to impose life in prison
without parole on the aggravated murder conviction. If the original
sentencing judge concludes that it did, then the court must vacate
the aggravated murder sentence and resentence Met on that
conviction. If the original sentencing judge is unavailable or
otherwise unable to consider the remanded issue, then the newly
sitting judge must vacate the sentence and resentence solely on the
aggravated murder conviction.26
                           CONCLUSION
   ¶122 We affirm Met‘s child kidnapping and aggravated murder
convictions. We again conclude that Utah Code section 76-3-207.7 is
not unconstitutional. Met has also not demonstrated that the district
court erred in the course of the trial in a manner that prejudiced him.
We also affirm the district court‘s sentence of life in prison without
parole on Met for the child kidnapping conviction. We remand,
however, the court‘s sentence of life in prison without parole for
Met‘s aggravated murder conviction. The district court misstated the
law by indicating that section 76-3-207.7 creates a presumptive life
sentence without parole for those convicted of noncapital aggravated
murder. Section 76-3-207.7 does not in fact provide for a
presumptive life sentence without parole but rather grants the
sentencing court reasonable discretion to impose either an


_____________________________________________________________
   26 We again note that we affirm the district court‘s sentencing of
Met to life in prison without parole for the child kidnapping
conviction. We remand only the district court‘s sentencing of Met for
the aggravated murder conviction.


                                   45
                              STATE v. MET
     A.C.J. LEE: concurring in part and concurring in the judgment

indeterminate term of year sentence not less than twenty years or a
life sentence without parole. See UTAH CODE § 76-3-207.7 (2007). We
note that the court‘s discretion is bound by other statutory
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.‘‖
State v. Reece, 2015 UT 45, ¶ 78, 349 P.3d 712 (alterations in original)
(citation omitted).
    ¶123 We affirm the imposition of life in prison without parole
as the sentence on the child kidnapping conviction. We remand the
case to the district court for the limited purpose of permitting the
original sentencing judge to examine whether the misstatement of
law had a substantive effect on its sentencing decision with respect
to the aggravated murder conviction. If the misstatement had a
material effect, or if the original sentencing judge is not available, the
district court should consider whether Met should be sentenced to
―life in prison without parole[] or an indeterminate prison term of
not less than 20 years and which may be for life.‖ See UTAH CODE §
76-3-207.7 (2007) (emphasis added).


    ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring
in the judgment:
    ¶124 I concur in the judgment of the court and also in the
majority opinion in large part. I write separately only to articulate a
different basis for rejecting the argument that Mr. Met‘s conviction
on child kidnapping does not merge with his aggravated murder
conviction. See supra ¶¶ 99–109.
   ¶125 The majority rejects this claim under the ―common-law
merger‖ standard set forth in State v. Lee, 2006 UT 5, ¶ 31, 128 P.3d
1179, and State v. Finlayson, 2000 UT 10, ¶ 23, 994 P.2d 1243. Yet the
court acknowledges that our opinions in these cases may not be
reconcilable, and adverts to the possible ―need,‖ in an ―appropriate
case,‖ to ―examine the concerns that motivated us to adopt the
doctrine of common-law merger‖ and to ―evaluate whether Finlayson
continues to be the correct test‖ to ―address‖ those concerns. Supra
¶ 104 n.25.
    ¶126 In my view this is the ―appropriate case.‖ The court‘s
analysis, in my view, highlights fundamental problems with our
doctrine of common-law merger. Our application of the Lee-Finlayson
test underscores its unworkability. And it highlights a threshold


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   A.C.J. LEE: concurring in part and concurring in the judgment

deficiency in the whole enterprise of ―common-law merger,‖ which
is that we have no common-law power in a field governed by
statute.
    ¶127 The parties have accepted the viability of the Lee-Finlayson
test and have confined their arguments to the proper outcome of the
case under that test. But the basis and validity of the test is fair game
in a case in which we are asked to apply it. We cannot apply the test
without describing its content, and we cannot describe its content
without identifying its basis in law. If we have reason to question the
basis for a common-law test we are asked to apply, we can—and
should—do so.27
   ¶128 I would do so here. I would consider (1) whether we have
the power to articulate a common-law merger test in the face of a
governing statute, and (2) if so, whether the Lee-Finlayson test is an
appropriate means of exercising that power. I will outline my
tentative views on these questions here. I will first articulate the
grounds for questioning our authority to exercise common-law
power in this field, and then identify some concerns with the
unworkability of the Lee-Finlayson formulation of the operative test.
                                    I
   ¶129 We have held ―that, in some factual scenarios, crimes may
be so related that they must merge‖ even where merger is not
required by the constitution or by statute. See Lee, 2006 UT 5, ¶ 31.
―Where two crimes are defined narrowly enough that proof of one
does not constitute proof of the other, but broadly enough that both
may arise from the same facts,‖ we have said that ―merger may be
appropriate.‖ Id. The most common application of this premise has
been in cases involving sexual assault and kidnapping. We have said
that ―virtually every rape . . . involves a necessary detention.‖
Finlayson, 2000 UT 10, ¶ 19. ―[A]bsent a clear distinction‖ between

_____________________________________________________________
   27 See Winward v. State, 2012 UT 85, ¶ 43, 293 P.3d 259 (Lee, J.,
concurring in the judgment) (explaining the basis for reaching the
question whether a common-law ―egregious injustice‖ exception had
been preempted by the Post-Conviction Remedies Act even when
the parties accepted the exception in their briefing; noting that ―[w]e
cannot defensibly find such an exception unsatisfied without
describing its content, and we cannot describe its content without
articulating its basis in law‖).



                                   47
                             STATE v. MET
    A.C.J. LEE concurring in part and concurring in the judgment

sexual assault and kidnapping, we have warned that ―virtually
every rape . . . would automatically be a kidnap[p]ing as well.‖ Id.
And we have suggested that a conviction for both crimes may raise
double jeopardy concerns—by imposing ―double punishment for
essentially the same act.‖ Id.; see also Lee, 2006 UT 5, ¶ 31 (suggesting
that ―a criminal defendant could be punished twice for conduct that
amounts to only one offense, a result contrary to protections against
double jeopardy‖).
    ¶130 With these concerns in mind, we have articulated a test
aimed at identifying kidnapping charges that are ―incidental to‖ a
sexual assault, or in other words that lack ―an independent
significance.‖ Finlayson, 2000 UT 10, ¶ 23. The test states that a
―confinement . . . alleged to have been done to facilitate the
commission of another crime‖ can constitute kidnapping only if the
confinement (a) is not ―slight, inconsequential and merely incidental
to the other crime,‖ (b) is not ―of the kind inherent in the nature of
the other crime,‖ and (c) has ―some significance independent of the
other crime in that it makes the other crime substantially easier of
commission or substantially lessens the risk of detection.‖ Id.
    ¶131 We have referred to the above as ―common-law merger.‖
Supra ¶ 100. But that seems a misnomer. Our criminal law is
completely codified. UTAH CODE § 76-1-105 (―Common law crimes
are abolished and no conduct is a crime unless made so by this code,
other applicable statute or ordinance.‖). And the legislature has
enacted a statute dictating the terms and conditions of merger of
criminal offenses. See UTAH CODE § 76-1-402. I cannot see how we
can exercise common-law power in the face of two crimes defined by
statute, and any argument for the existence of such power is
eliminated by the existence of a statute regulating the enterprise of
merger in this field. Schroeder Invs., L.C. v. Edwards, 2013 UT 25,
¶¶ 22–23, 301 P.3d 994 (noting that where a statute speaks to the
issue before the court ―our judicial role is secondary (interpretation),
not primary (policymaking)‖).
    ¶132 That leaves the constitutional—double jeopardy—
question. But the concern identified in our cases is illusory. The
double jeopardy provisions of both the United States and Utah
Constitutions protect only against double jeopardy for the ―same
offense.‖ U.S. CONST. amend. V (―nor shall any person be subject for
the same offence to be twice put in jeopardy of life or limb‖); UTAH
CONST. art. 1, § 12 (―nor shall any person be twice put in jeopardy for
the same offense‖). And both provisions have long been understood


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                          Cite as: 2016 UT 51
    A.C.J. LEE: concurring in part and concurring in the judgment

to operate at the offense level—as a protection against multiple
punishments or serial prosecution of the same criminal offense. See
Blockburger v. United States, 284 U.S. 299 (1932); State v. Sosa, 598 P.2d
342 (Utah 1979).
    ¶133 The operative test allows prosecution for distinctly separate
offenses, and defines separateness based on whether each of two
crimes contains distinct elements. Where each crime has distinct
elements, there is no double jeopardy problem even where both
crimes arise out of the exact same set of facts. See Blockburger, 284
U.S. at 304 (stating that ―where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or only one[]
is whether each provision requires proof of a fact which the other
does not‖); Sosa, 598 P.2d at 346 (holding that the ―test emphasizes
the elements of the two crimes,‖ and that ―[i]f each requires proof
that the other does not,‖ the Double Jeopardy Clause is ―satisfied,
notwithstanding a substantial overlap in the proof offered to
establish the crimes‖ (citations omitted)).
    ¶134 The facts of Blockburger and Sosa are instructive. In
Blockburger the defendant was charged and convicted on two
separate charges arising out of a single sale of illegal drugs—one for
the sale of ―forbidden drugs except in or from the original stamped
package‖ and another for the same sale of the same ―drugs not in
pursuance of a written order of the person to whom the drug is
sold.‖ 284 U.S. at 303–04. Thus, in Blockburger ―there was but one
sale, and the question [was] whether, both sections [of the federal
criminal code] being violated by the same act, the accused
committed two offenses or only one.‖ Id. at 304. The court concluded
that these were separate offenses because each crime required proof
of a different element. And it accordingly held that there was no
violation of double jeopardy in the defendant‘s conviction and
punishment on both offenses. See id. (holding that ―although both
sections were violated by the one sale, two offenses were
committed‖ because each crime required proof of an element not
required on the other).
   ¶135 Sosa is along similar lines. In that case, the defendant was
convicted on charges of carrying a loaded firearm in a vehicle under
Utah Code section 76-10-505 (1953) and possession of a dangerous
weapon by a convicted person under Utah Code section 76-10-503(1).
598 P.2d at 343. As in Blockburger, the Sosa court emphasized that the
double jeopardy test ―emphasizes the elements of the two crimes.‖


                                   49
                              STATE v. MET
    A.C.J. LEE concurring in part and concurring in the judgment

Id. at 346. And ―[b]ecause the elements of [the defendant‘s] separate
prosecutions differ[ed], and either offense could have been
established without establishing the other,‖ the court held that ―the
double jeopardy doctrine [did] not apply.‖ Id.
   ¶136 The double jeopardy premise of the Lee-Finlayson test
cannot stand in light of the above. Blockburger and Sosa squarely
repudiate the notion that double jeopardy is offended when a
criminal defendant is ―punished twice‖ for the same conduct. Lee,
2006 UT 5, ¶ 31. And they preserve for the legislature the power to
identify multiple crimes arising out of a single set of facts. So the
question whether to impose multiple punishments for a single
deplorable act is a legislative prerogative; the Double Jeopardy
Clause has no say in the matter.
   ¶137 In Utah, moreover, we have a statute that regulates the
matter of merger. Our legislature has provided that merger is
appropriate ―when the same act of a defendant under a single criminal
episode‖ establishes ―offenses which may be punished in different
ways under different provisions of [the] code.‖ UTAH CODE § 76-1-
402(1) (emphasis added). Where that is the case, ―the act shall be
punishable under only one such provision,‖ and ―an acquittal or
conviction and sentence under any such provision bars a prosecution
under any other such provision.‖ Id.
    ¶138 The merger statute also calls for merger as to ―included‖
offenses. Id. § 76-1-402(3). An ―included‖ offense is one that is
―established by proof of the same or less than all the facts required to
establish the commission of the offense charged,‖ id. § 76-1-402(3)(a);
one that ―constitutes an attempt, solicitation, conspiracy, or form of
preparation to commit the offense charged or an offense otherwise
included therein,‖ id. § 76-1-402(3)(b); or one ―specifically designated
by a statute as a lesser included offense,‖ id. § 76-1-402(3)(c). By
statute, ―[a] defendant may be convicted of an offense included in
the offense charged but may not be convicted of both the offense
charged and the included offense.‖ Id. § 76-1-402(3). This reflects a
requirement of double jeopardy, as an included offense is also one
that would be barred under Blockburger/Sosa. 284 U.S. at 304; 598
P.2d at 346.
   ¶139 I cannot see how this court could retain common-law
power in light of this statute. The legislature has said that a criminal
charge is barred only if it is an ―included‖ offense or if it arises out of
the very ―same act of a defendant‖ that is punished in a different
way under the code. See id. § 76-1-402(1), (3). And that statute seems


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                         Cite as: 2016 UT 51
   A.C.J. LEE: concurring in part and concurring in the judgment

to me to leave no room for this court to prescribe merger for crimes
that are almost but not quite covered by the statute—for crimes that
arise out of ―virtually‖ the same conduct, or that impose ―double
punishment for essentially the same act.‖ Finlayson, 2000 UT 10, ¶ 19
(emphasis added).
                                  II
    ¶140 The factors set forth in Finlayson and Lee are also
problematic on their own terms. None of them provide meaningful
guidance or means of predictably distinguishing properly merged
offenses from those that should not merge; collectively, they render
our inquiry into common-law merger unworkable. And that is
another consideration weighing in favor of reconsidering these
decisions. See Eldridge v. Johndrow, 2015 UT 21, ¶ 40, 345 P.3d 553
(―[T]o determine whether a precedent has become firmly
established,‖ the court first asks ―how well it has worked in
practice.‖); see also supra ¶ 104 n.25 (acknowledging the difficulty of
reconciling Finlayson and Lee).
    ¶141 The first-listed element asks whether the defendant‘s
confinement of the victim is ―slight, inconsequential and merely
incidental to‖ another crime. Finlayson, 2000 UT 10, ¶ 23. That
inquiry is hardly an objective one. Slightness is in the eye of the
beholder. As to consequentiality, I would think that any detention that
allows a defendant to commit a crime would be a matter of
consequence. So how this element may play out in individual cases
is anyone‘s guess.
    ¶142 The second element—whether the degree of confinement
is ―inherent in the nature of the other crime,‖ id.—is also
problematic. Confinement is never inherent in the nature of murder
(the crime at issue here). Murder can certainly be committed without
confining someone, as by poisoning them or shooting them with a
gun. That holds even for sexual assault, as rape can be committed
against an unconscious person or someone who is not physically
detained but nonetheless does not consent. See UTAH CODE § 76-5-
406(5) (stating that a rape ―is without consent of the victim‖ if ―the
actor knows the victim is unconscious, unaware that the act is
occurring, or physically unable to resist‖). So this element makes no
sense. And it again compounds the unpredictability of the inquiry.
   ¶143 The last element is whether the confinement has ―some
significance independent of the other crime‖ in making it
―substantially easier of commission‖ or in ―substantially lessen[ing]



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                            STATE v. MET
    A.C.J. LEE concurring in part and concurring in the judgment

the risk of detection.‖ Finlayson, 2000 UT 10, ¶ 23. This inquiry is
puzzling. It will always be substantially easier to commit a murder
(or sexual assault) if the perpetrator has confined the victim to the
extent required for kidnapping. So the last element again provides
no basis for distinguishing properly merged offenses from those that
should not merge.
   ¶144 Thus, the elements prescribed in Finlayson and Lee yield no
workable test. And the problems inherent in implementing this test
lend further weight to the argument for overruling these decisions.
                                 III
   ¶145 Our common-law merger precedents are premised on
vague concerns about constitutional protections against double
jeopardy. But those concerns seem unfounded for reasons explained
above. And unless a conviction actually violates a defendant‘s rights
under the constitution, we have no business overriding it as a
common-law matter. That is doubly true where the legislature has
enacted a statute that occupies the field of merger.
    ¶146 I see no basis for the common-law merger principle set
forth in Finlayson and Lee. And I would overrule the standard set
forth in those decisions rather than apply what I see as an
unworkable test that we have no power to impose.
   ¶147 The only operative merger standard that I see in our law is
that set forth by statute, Utah Code section 76-1-402. I would reject
Mr. Met‘s merger argument on the ground that the conviction on his
kidnapping offense is not based on the ―same act‖ as that which
sustained his murder conviction, as required under section 76-1-
402(1), and is not an ―included‖ offense under section 76-1-402(3).




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