State v. Samora

484 P.3d 1206

STATE of Utah, Appellee,

v.Shane Patrick SAMORA, Appellant.

No. 20180983-CA

Court of Appeals of Utah.

Filed March 18, 2021

Herschel Bullen, Salt Lake City, Attorney for Appellant

Sean D. Reyes and Christopher D. Ballard, Salt Lake City, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judge David N. Mortensen and Senior Judge Kate Appleby concurred.¹

Opinion

HARRIS, Judge:

¶1 A jury convicted Shane Patrick Samora of aggravated robbery for holding up a convenience store at knifepoint. Samora appeals that conviction, asserting that the trial court improperly admitted two categories of evidence used at trial, and that the evidence was insufficient to establish that he was the robber. We affirm.

BACKGROUND²

¶2 Just after dusk one summer evening, a clerk (Clerk) on duty at a Chevron convenience store observed a man enter the store wearing black and white tennis shoes, black shorts, and "a pullover hoodie." Clerk and the man were the only people in the store at the time. Clerk greeted the man, and went to the register to assist him. Once Clerk arrived at the register, he looked up and noticed that the man was wearing "a mask over [his] face."³ The man told Clerk, "This is a robbery," and instructed Clerk to "[g]ive [him] the money." Clerk initially thought the man was joking. The man repeated his demand, and Clerk responded by telling the man to "get out of [the] store." The man then took out a ten-to-twelve-inch kitchen knife, showed it to Clerk, and stated his demand for money a third time.

¶3 At this point, Clerk realized the situation was "more serious" than he initially thought, and he told the man, "[G]et out of my store or I'll call the cops. I'm not going to give you any money." The man then thrust the knife "across the counter," and pointed it "directly" at Clerk. Although Clerk was "very frightened" and "took a step back" away from the knife, he again told the man to leave and that he was "calling the cops." This time, the man left, and Clerk decided to "follow [him] out of the store."

¶4 Once he was outside the store, still following the man, Clerk called 911 on his cell phone. While on the phone with the 911 operator, Clerk continued to trail the man, but briefly lost sight of him for about ten seconds as the man turned a corner onto the sidewalk and disappeared behind a fence. The sidewalk where the man was walking did "not [have] foot traffic" that night. Clerk continued walking in the direction he had seen the man go, and after rounding the same corner onto the same sidewalk he saw "an individual dressed in the same clothing" and with the "same height, same body build" as the robber walking in the direction the man had been walking. At this point Clerk was "30 to 40 feet" behind the man, and followed him to "a place of residence," which Clerk described as a "gray building" with a green "awning on the front of it." Clerk watched the man enter the building through a door located beneath the green awning. Clerk had remained on the phone with the 911 operator the entire time he followed the man, and he described to the operator in real time the building—including its address—that the man had just entered.

¶5 Immediately after getting off the phone with the 911 operator, Clerk returned to the store and called his manager (Manager), who was out of town on vacation, to inform her of the robbery. The convenience store was equipped with a surveillance system that recorded video but not audio, and which could be accessed remotely via a cell phone application. Upon receiving the call from Clerk, Manager—who was the only person with access to the surveillance system—immediately accessed the application on her cell phone and "watched what had happened." Manager took six screenshots of the footage of the robbery and sent them to Clerk via text message. In those screenshots, a masked man can be seen entering the store and approaching the counter, and later pointing a knife at Clerk. The man in the screenshots has a "horseshoe shape[d]" receding hairline, and is wearing white athletic shoes with crisscrossed black laces, black shorts, and a black hooded sweatshirt over a white t-shirt. In most of the screenshots, the man has a mask over the bottom part of his face.

¶6 Police responded within five minutes, with one officer meeting Clerk at the convenience store while two others were dispatched to the gray building Clerk had seen the man enter. Upon their arrival at the building, the two officers saw a man standing in the doorway who appeared to match the description given by Clerk; the man was "wearing a white shirt with black shorts," as well as white athletic shoes with small red marks on the sides and black laces tied in a distinctive crisscross pattern. This man was Samora, and soon after "ma[king] eye contact" with one of the officers, he went inside and shut the door. The officers then approached the doorway, which turned out to lead into a residential apartment where Samora lived, and subsequently placed Samora under arrest, taking (among other things) Samora's shoes as evidence.

¶7 Meanwhile, officers took a statement from Clerk, and the investigating detective (Detective) acquired electronic copies of the six screenshots that Manager had sent to Clerk.⁴ Detective then traveled to the apartment building, visually compared Samora to the man in the photos, and "felt comfortable" that Samora was the robber.

¶8 Detective obtained a warrant to search Samora's apartment. While executing the search, Detective found a knife in a kitchen drawer that looked similar to the knife used in the robbery. Detective also found a "dark-colored hoodie," featuring a distinctive "chevron" pattern, hanging on a hook located on the wall "right next to the door in the entryway." Detective took the knife and the hoodie as evidence.

¶9 The State charged Samora with aggravated robbery, a first-degree felony.⁵ As the case proceeded toward trial, the State recognized that two characteristics of the clothing taken from Samora and from his apartment do not appear on the person in the screenshots from the surveillance video: (1) the distinctive chevron pattern on the hoodie found in the apartment; and (2) the red marks on the sides of the otherwise-white athletic shoes Samora was wearing during his arrest. Believing that the absence of these two features in the screenshots could be due to the way the store's surveillance system captures images, Detective and a forensic examiner took the hoodie and the shoes to the store and attempted to "reconstruct" the screenshots taken of the surveillance system footage. Detective and the examiner attempted "to match[ ] up" the crime scene "as best [they] could" by reconstructing the scene at night. The shoes were also arranged in certain ways, such as "plac[ing] something underneath the shoe" to "recreate the step and the walking motions" taken when the robber walked into the store, and "us[ing] the grout lines" in the floor to arrange the shoes exactly where the robber was when he approached the counter. Detective also held up the hoodie in front of the counter in roughly the same place the robber would have occupied, and at roughly the same height.

¶10 Through counsel, Samora filed a pretrial motion to exclude the comparison photos taken at the reconstructed crime scene. The trial court held a hearing to consider the motion, during which Detective testified about how the comparison photos had been generated. Detective also explained how, when viewing the comparison photos, it was not possible to see either the red coloring on the shoes or the chevron pattern on the hoodie; in those photos, taken using the store's surveillance system, the shoes appeared entirely white (apart from the black crisscrossed laces), and the hoodie "appear[ed] jet black," without any visible pattern. After argument, the court determined that the comparison photographs' probative value was high, that the evidence would "not be cumulative," and that the probative value was not substantially outweighed by considerations such as wasting time or confusing the jury. The court made a "conditional" ruling that the comparison photos were admissible, so long as the State "la[id] the adequate foundation" at trial.

¶11 After his arrest, Samora was detained in the county jail for several days, during which time he made several phone calls to his wife (Wife), in which they discussed the events that took place on the night of the robbery. The calls Samora made from jail were all being recorded, and he knew it. The State first asked the trial court to admit these recordings pursuant to rule 404(b) of the Utah Rules of Evidence. Samora objected and, after a hearing, the court ruled that none of the recordings were admissible under rule 404(b) because they did "not support ... noncharacter purposes," and that, viewed through a prior-bad-acts lens, they were also inadmissible under rule 403 of the Utah Rules of Evidence because "the probative value of the [calls was] substantially outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury."

¶12 Later, however, the State made a more targeted effort, seeking admission of only five short clips of the phone calls, and this time representing that it had "carefully cut each clip to eliminate any [ rule] 404(b) related conduct." This time, the State relied on rules 104(b) and 801(d)(2) of the Utah Rules of Evidence as the basis for admission, characterizing the statements Samora made in the five clips as utterances that a reasonable jury could find relevant as statements of a party-opponent. Samora's counsel objected to two of the clips in their entirety, and to part of a third clip; the trial court sustained that objection again under rule 403, and barred the State from introducing the clips to which Samora's counsel had objected. But Samora's counsel did not object to the two other clips and the remaining portion of the third clip,...