author: HARRIS, Judge:

text:
    Aaron LEAVITT, Petitioner, v. SALT LAKE CITY CORPORATION and Salt Lake City Civil Service Commission, Respondents.
    No. 20170715-CA
    Court of Appeals of Utah.
    Filed May 2, 2019
    Erik Strindberg and Jonathan K. Thorne, Salt Lake City, Attorneys for Petitioner
    John E. Delaney and Mark E. Kittrell, Attorneys for Respondent Salt Lake City Corporation
    Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.
    Opinion
   HARRIS, Judge:

¶1 In the wake of an on-duty incident at a homeless shelter, Salt Lake City Police Sergeant Aaron Leavitt was terminated from the police force for "conduct unbecoming" a police officer. Leavitt appealed his termination to the Salt Lake City Civil Service Commission (the Commission), which affirmed the decision to terminate him. Leavitt now seeks judicial review of the Commission's decision, and we decline to disturb it.

BACKGROUND

Leavitt's Work History

¶2 Leavitt began working for the Salt Lake City Police Department (the Department) in 1996 and, other than a one-year stint in 2002-03 at a police department in Texas, Leavitt worked continuously for the Department for nearly twenty years. At first, he was assigned to be a patrol officer, but he rose through the ranks, earning a promotion to detective in 2004 and to sergeant in 2013.

¶3 During the time Leavitt worked for the Department he was generally a good employee, and in his annual evaluations he was never rated as less than "meeting standards." He had never been the subject of serious discipline, and had never before been charged with "conduct unbecoming." However, he had been the subject of three disciplinary matters during the course of his employment with the Department. The first two matters occurred in the early years of his work for the Department and were relatively minor, involving written reprimands for poor driving and improperly caring for his shotgun. The third matter occurred in 2013 or 2014, after he had been promoted to sergeant, and was somewhat more significant: Leavitt received a sixty-hour suspension for improperly using a taser as part of a prank while working security at a professional basketball game. In September 2015, when the events giving rise to this case occurred, Leavitt held the rank of sergeant, and was only a few months short of twenty years of service, a milestone that would have made him eligible to retire with full benefits.

The Incident at the Shelter

¶4 On the night of September 20, 2015, Leavitt was on patrol when he received a request for additional assistance near a homeless shelter (the Shelter) in downtown Salt Lake City. A few minutes earlier, another officer had stopped a group of three males-including two black juveniles (Juvenile 1 and Juvenile 2)-for "jaywalking" across the street in front of the Shelter. After stopping the group, the officer ordered them to sit on the curb so he could issue them jaywalking citations. As the officer was writing up the citations, Juvenile 1's mother (Mother) arrived on scene, and at roughly the same time Juvenile 1's sister (Juvenile 3) proceeded to jaywalk across the street and into the Shelter. Another officer ordered her to stop, but she did not comply, and so that officer followed her into the Shelter and brought her outside with the other juveniles.

¶5 All this commotion near the Shelter began to attract attention, and a crowd began to gather. Officers radioed for assistance, and Leavitt (and others) heard their call. After some discussion, Juvenile 3 was detained and placed in the back of a Department car that was parked in front of the curb, and the crowd began to dissipate. At about this point, Leavitt arrived on scene, and he observed that the situation had calmed down and "appeared to be under control." Indeed, Leavitt's first action upon arrival was to instruct dispatch to "slow everybody down," meaning that additional officers en route to the scene need not hurry to arrive. Leavitt met with the officers on scene to obtain additional information, and then set a security perimeter, gave other officers instruction, and released some officers whose presence he deemed no longer necessary. However, as Leavitt was doing so he made a series of comments-that were captured by his body camera-to other officers and to himself, complaining about having to deal with the residents of the Shelter area, and lamenting that he could no longer get "rough" with them "like we used to" back in the day.

¶6 A few minutes after making these comments, Leavitt approached the car where Juvenile 3 was detained and began talking to the officers. During the conversation, Leavitt "made a comment and pointed in the general direction" of where Juvenile 1 and Juvenile 2 had been sitting on the curb. In response, Mother began arguing with Leavitt. At about the same time, Juvenile 3 was released from the car and Leavitt confronted her by "point[ing] his finger in [her] face while lecturing her about her behavior." Leavitt then walked over to the curb and began lecturing Juvenile 2 about his behavior.

¶7 A few minutes later, after Leavitt had returned to his police car, he witnessed a group of individuals-including Juvenile 1, Juvenile 3, Mother, and other juveniles-walking on the sidewalk in front of the Shelter. Leavitt later testified that he "heard one of the juvenile males make a threat to either [Leavitt] or to other [officers] in the area." Leavitt then crossed the street, by himself, to confront the juvenile who had allegedly made the threat, and a heated exchange ensued. As shown in the footage from Leavitt's body camera, which Leavitt activated as he approached the group, Leavitt first asked an unidentified male juvenile, in a challenging manner, "You got something to say now, I'm standing right here." Then, in response to a statement made by one of the individuals in the group regarding freedom of speech, Leavitt replied, "Freedom of speech isn't protected like you think it is." Following this exchange, Leavitt turned his attention to a female juvenile in the group after she said, "Get the fuck outta here nigga." Leavitt replied, "Did you tell me to get the fuck out of here nigger, is that what you just said?" The female juvenile replied, "No, nigga clean your fucking ears," after which Leavitt ended the exchange by saying "nigga" in a tone the Commission found to be "mocking."

¶8 Leavitt continued to walk alongside the group, all the while engaging the entire group-and Mother specifically-in various argumentative exchanges. After arguing with Leavitt for a few minutes, Mother directed the group to return to the Shelter. At about the same time, a female juvenile said to Leavitt, "Oh, you don't like what you're hearing," to which Leavitt responded, "No, I don't like what I hear, I don't like the disrespect from you, 'cause you're not so bad, you're not tough, you run your mouth and walk away."

¶9 By the end of this exchange the group had arrived at the Shelter doors. Leavitt, however, continued to argue with Mother and then pointed his finger directly at Mother, and then at a female juvenile, saying, "I'm gunna confront you." In response to Leavitt's actions, Juvenile 1 pointed his finger at Leavitt and-accidentally or not-poked him in the face near the eye. In response, Leavitt reached into the Shelter doorway and grabbed Juvenile 1 by the neck, sparking what the Commission described as a "melee." People inside the Shelter, including Mother and Juvenile 3-Juvenile 1's family-began to push and shove Leavitt, and a crowd gathered. In response, numerous officers ran across the street to the Shelter doorway to assist Leavitt. As officers arrived at the doorway they were surrounded by the crowd in a confined environment, a situation the Commission described as a "fatal funnel" that jeopardized officer safety by leaving the officers subject to attack by armed individuals. The officers were eventually able to break up the melee and, after a number of minutes, they detained Juvenile 1 and Juvenile 3 and took them outside the Shelter and handcuffed them.

¶10 After the melee was contained, Leavitt returned to the street in front of the Shelter where he met with other officers and discussed, among other things, "what had transpired, what charges would be issued against the people involved, how the situation was going to be wrapped up, and whether the identity of the juvenile who allegedly made the threat was known." During these discussions, captured by Leavitt's body camera, Leavitt again made comments to other officers, and himself, about how dissatisfied he was with the current state of policing and with being told not to be "rough" with people. Among other comments, Leavitt declared:

The degradation of the moral fabric of our community, of our world, look what's happened ever since that bullshit in Ferguson. President Clinton came-or uh Obama-not standing up and he keeps running his mouth, all of them, and the judge is saying oh, it's no big deal, thanks Baxter.[ ]

The Investigation

¶11 Within a day or two of the Shelter melee, the Department began an investigation into Leavitt's actions that night. The investigation was formally initiated by a complaint submitted by a Department lieutenant, and Leavitt was placed on paid administrative leave pending the outcome of the investigation. The investigation, conducted by the Department's Internal Affairs (IA) division, included interviews with officers who were on the scene during the incident, as well as a review of body camera footage (Body Cam Footage) from all of the officers on the scene, including Leavitt. After reviewing all the facts gathered during the investigation, and particularly Leavitt's Body Cam Footage, the head of IA determined that Leavitt "had violated Department and City policies," and issued a pre-determination notice (the Notice) setting forth facts "that illustrated the policy violations." It was not, however, up to IA to determine the level of discipline, if any, that would be imposed; that decision was solely in the hands of the Salt Lake City Police Chief (the Chief). A pre-disciplinary hearing was held shortly after the release of the Notice.

¶12 After the hearing, the Chief was required to decide whether to uphold IA's finding that Leavitt violated Department policies and, if so, what penalty would be appropriate under the circumstances. In making his decision, the Chief reviewed and considered the findings of the IA investigation, all of the Body Cam Footage, and written submissions made by Leavitt at the hearing. The Chief also considered the "impact of [Leavitt's] actions on the public trust, on the integrity of the Department, and on Department officers, including [Leavitt]." In the end, the Chief agreed with IA that Leavitt had violated Department and city policies, and concluded that the appropriate sanction, under the facts of this case, was to terminate Leavitt's employment.

¶13 Leavitt appealed the Chief's decision to the Commission. After a two-day evidentiary hearing, during which the Commission heard testimony from numerous witnesses, including the Chief and Leavitt, and reviewed numerous exhibits, including the Body Cam Footage, the Commission unanimously voted to uphold Leavitt's termination, and issued a written decision setting forth its findings and conclusions.

ISSUE AND STANDARD OF REVIEW

¶14 Leavitt now seeks judicial review, and specifically asks us to set aside the Commission's decision to uphold his termination. When reviewing the Chief's decision, the Commission "is required to give deference to the Chief, as he is best able to balance the competing concerns in pursuing a particular disciplinary action." Harmon v. Ogden City Civil Service Comm'n (Harmon II ), 2007 UT App 336, ¶ 6, 171 P.3d 474 (quotation simplified). Our review, in turn, of the Commission's decision is similarly limited; indeed, we are instructed by statute to review such decisions only "for the purpose of determining if the [C]ommission has abused its discretion or exceeded its authority." Utah Code Ann. § 10-3-1012.5 (LexisNexis 2015). We will therefore not disturb the Commission's decision to uphold the Chief's decision to terminate Leavitt's employment "unless it exceeds the bounds of reasonableness and rationality." Harmon II , 2007 UT App 336, ¶ 6, 171 P.3d 474 (quotation simplified). Under this standard, "it is not this court's place to substitute its judgment as between two reasonably conflicting views" as to the appropriate punishment, "even though we may have come to a different conclusion had the case come before us for de novo review" or had we been the decisionmakers in the first instance. See EAGALA, Inc. v. Department of Workforce Services , 2007 UT App 43, ¶ 16, 157 P.3d 334 (quotation simplified); see also Murray v. Utah Labor Comm'n , 2013 UT 38, ¶ 30, 308 P.3d 461 (stating that "a discretionary decision involves a question with a range of 'acceptable' answers, some better than others, and the agency ... is free to choose from among this range without regard to what an appellate court thinks is the 'best' answer").

ANALYSIS

¶15 In Utah cities with a population of more than 65,000, decisions about whether, and how severely, to discipline police officers for misconduct are made in the first instance by the officers' department heads, usually the city's Chief of Police. See Utah Code Ann. §§ 10-3-912, -1012 (LexisNexis 2015); see also id. § 10-2-301(2). Where cities have established a civil service commission-and Salt Lake City has done so-a department head's disciplinary decisions may be appealed to that commission. See id. §§ 10-3-1003, -1012. However, upon review, commissions must choose between upholding or reversing a department head's disciplinary decisions; they may not "modify suspension or termination decisions or ... remand such decisions for further proceedings." Salt Lake City Corp. v. Salt Lake City Civil Service Comm'n , 908 P.2d 871, 875-76 (Utah Ct. App. 1995) (interpreting Utah Code section 10-3-1012, and stating that a commission may only give "a simple thumbs up or thumbs down" to the department head's decision).

¶16 Accordingly, "when reviewing appeals brought by suspended or discharged employees," a civil service commission is to make two inquiries: "(1) do the facts support the charges made by the department head, and, if so, (2) do the charges warrant the sanction imposed?" Id. at 876 (quotation simplified). Put differently, "the Commission must first determine if discipline was warranted, and, if so, whether the discipline imposed was appropriate." Kelly v. Salt Lake City Civil Service Comm'n , 2000 UT App 235, ¶ 16, 8 P.3d 1048. If the Commission determines that discipline was either not warranted, or that the discipline imposed was disproportionate to the offense, it must reverse the department head's action. Id.

¶17 To his credit, Leavitt does not dispute that his actions at the Shelter constituted conduct unbecoming an officer, and that he therefore violated the policies under which he was charged. His challenge is focused solely on the second ground: Leavitt asserts "that the charges do not warrant the sanction imposed." Harmon II , 2007 UT App 336, ¶ 6, 171 P.3d 474. In assessing whether a sanction is warranted, the Commission is required to consider two questions: "(1) Is the sanction proportional? and (2) Is the sanction consistent with previous sanctions imposed by the department pursuant to its own policies?" Burgess v. Department of Corr. , 2017 UT App 186, ¶ 35, 405 P.3d 937 (quotation simplified). "[I]f the discipline is either not proportional to the offense or is not consistent with previous sanctions, a sanction may be reversed by [the Commission] or overridden by this court." West Valley City v. Coyle , 2016 UT App 149, ¶ 29, 380 P.3d 327.

¶18 In support of his position that termination was too strong a sanction in this case, Leavitt argues that his punishment was both disproportionate and inconsistent with sanctions levied by the Department in previous cases, and in addition argues that his termination was improper because the Department failed to comply with certain procedural requirements when it terminated him. We address each of Leavitt's arguments in turn.

A

¶19 Leavitt first contends that termination is a penalty disproportionate to his offense. In Ogden City Corp. v. Harmon (Harmon I ), 2005 UT App 274, 116 P.3d 973, this court identified a nonexclusive list of factors-known as the Harmon factors-that may be considered in determining the proportionality of a sanction:

(1) whether the employee has "an exemplary service record," (2) whether the evidence of misconduct is tenuous, (3) whether the employee has been dishonest, (4) whether there are numerous violations, (5) whether there has been "ineffective progressive discipline," (6) "whether the violation is directly related to the employee's official duties and significantly impedes his or her ability to carry out those duties," (7) "whether the offense was of a type that adversely affects the public confidence in the department," (8) "whether the offense undermines the morale and effectiveness of the department," (9) "whether the offense was committed willfully or knowingly, rather than negligently or inadvertently," and (10) whether the misconduct is likely to reoccur.

Burgess , 2017 UT App 186, ¶ 38, 405 P.3d 937 (quoting Harmon I , 2005 UT App 274, ¶ 18, 116 P.3d 973 ). This nonexclusive list of factors is not to be rigidly applied; indeed, "[t]here is no single set of factors that must be considered when conducting a proportionality review." Coyle , 2016 UT App 149, ¶ 30, 380 P.3d 327. The Harmon factors are merely aids in determining whether the sanction imposed was proportional.

¶20 Applying the Harmon factors to the case at hand, the Commission determined that Leavitt's termination was proportional to his conduct, and we discern no abuse of discretion in that determination. The Commission's analysis was based on its findings that a number of the Harmon factors weighed in favor of a stern punishment. And although the Commission did not specifically cite each Harmon factor, its findings are amply supported by the record evidence.

¶21 For example, the Commission's findings demonstrate that it considered whether the Chief had properly weighed Leavitt's service record when terminating Leavitt. See Harmon I , 2005 UT App 274, ¶ 18, 116 P.3d 973. The Commission specifically recognized that Leavitt's service record was good, that his annual evaluations had been generally favorable, and that he had received multiple letters of commendation. However, the Commission also recognized that Leavitt had been the subject of several disciplinary matters, including a more significant violation a year or two before the incident in question. Moreover, the Commission also gave weight to the Chief's testimony on the issue, in which he stated that Leavitt's past service record could not "make up for the egregious nature of [Leavitt's] conduct on that night," and that during his twenty-six-year police career, the Chief had never "seen behavior such as that demonstrated by [Leavitt] on the night of [the incident]."

¶22 The Commission's findings also address whether Leavitt's violation is directly related to his official duties, and whether it significantly impeded his ability to carry out those duties. See id. Moreover, Leavitt himself concedes that this factor weighs in favor of substantial discipline, because the violation related directly to his official duties, and the way he handled the situation impeded his ability to perform those duties.

¶23 The Commission also made findings regarding the effect Leavitt's actions had, or could have, on the public's perception of and confidence in the Department, as well as the effect on the morale and effectiveness of other officers in the Department. See id. Based on the record evidence, the Commission concluded that the Chief's decision to terminate Leavitt was based in part on the Chief's evaluation of "the impact of [Leavitt's] actions on the public trust, on the integrity of the Department, and on Department Officers, including [Leavitt]." Specifically, the Commission was persuaded by the Chief's testimony that Leavitt's "admitted misconduct adversely affected the public confidence" in the Department, and that if Leavitt's Body Cam Footage were to be aired on the local news or posted on the internet it could significantly impact "the Department's reputation within the community" and "cause lasting damage to the Department." The Chief also testified that these potential consequences would necessarily impact the morale and effectiveness of the Department because Leavitt's actions directly reflect on the integrity and character of each Department officer. Although Leavitt resists the Chief's conclusion on this point, and contends that it is nothing more than speculation, we are unable to conclude that the Commission abused its discretion in deciding to credit the Chief's testimony on this point.

¶24 Finally, the Commission considered whether the offense was committed willfully or knowingly. See id. For example, the Commission credited the Chief's testimony "that he believed [Leavitt's] actions on the night of [the incident] were not simply negligent or inadvertent," but rather "it seemed like [Leavitt] was looking for a fight, that his actions were calculated, that [Leavitt] knew what was going on in this situation, and that the situation was not spontaneous because it developed over time and [Leavitt] engaged in verbal altercations that escalated the situation, confronting one person after another." Moreover, the Commission also credited Leavitt's own testimony that "his misconduct was at least influenced by his frustration that the Department had, in recent years, gotten away from what he thought was a more effective policing method." Thus, the Commission concluded that several Harmon factors militate in favor of a harsh punishment and, because that conclusion was supported by record evidence, it was not an abuse of discretion.

¶25 A few Harmon factors support the opposite view, and Leavitt points hopefully to those factors as support for his position. For example, Leavitt notes that he has always been honest about his misconduct, and that he has even conceded that his conduct violated Department policies. See Harmon I , 2005 UT App 274, ¶ 18, 116 P.3d 973. He also highlights the fact that his termination was the result of only one incident, rather than multiple violations occurring on various occasions. See id. And because Leavitt had not engaged in serious misconduct prior to the incident in question, there had been no "ineffective progressive discipline." See id.

¶26 However, not all the Harmon factors have to weigh in favor of stern punishment for the Commission's decision to be reasonable. In instances like this one, in which some factors cut in one direction and others in another, the Chief had several reasonable alternatives from which to choose. We will not disturb the Commission's decision to affirm the Chief's choice unless it "exceeds the bounds of reasonableness and rationality." Harmon II , 2007 UT App 336, ¶ 6, 171 P.3d 474 (quotation simplified); see also Murray v. Utah Labor Comm'n , 2013 UT 38, ¶ 30, 308 P.3d 461 (stating that "a discretionary decision involves a question with a range of 'acceptable' answers, some better than others, and the agency ... is free to choose from among this range without regard to what an appellate court thinks is the 'best' answer").

¶27 In sum, the Commission rationally and reasonably determined that the Chief's decision to terminate Leavitt was proportionate to his offense. Although the Commission did not make a finding on every Harmon factor in reaching its decision, it was not required to do so. See Coyle , 2016 UT App 149, ¶ 30, 380 P.3d 327. And although the Chief could have imposed a lesser sanction on Leavitt, based on the record evidence, the Commission did not abuse its discretion in concluding that the Chief's decision did not "exceed[ ] the bounds of reasonableness and rationality." Harmon II , 2007 UT App 336, ¶ 6, 171 P.3d 474 (quotation simplified).

B

¶28 Leavitt next contends that his termination is not consistent with prior discipline imposed on other officers for the same offense. In support of this argument, Leavitt points to "comparable" information about five other officers who violated the same policy as Leavitt-"conduct unbecoming"-but had received a lesser sanction than termination.

¶29 When challenging a sanction's consistency, the "burden of establishing inconsistent discipline rest[s] with [the disciplined employee] at the Commission level." West Valley City v. Coyle , 2016 UT App 149, ¶ 37, 380 P.3d 327. The employee "must first make out a prima facie case by pointing to specific instances or statistics, rather than relying on an unsupported assertion of inconsistent punishments." Kelly v. Salt Lake City Civil Service Comm'n , 2000 UT App 235, ¶ 30, 8 P.3d 1048. And while "our case law does not require comparison to identically situated employees," Coyle , 2016 UT App 149, ¶ 37, 380 P.3d 327, it does require the employee to show "some meaningful disparity of treatment between himself and other similarly situated employees," Burgess v. Department of Corr. , 2017 UT App 186, ¶ 49, 405 P.3d 937 (quotation simplified).

¶30 Here, Leavitt offered as evidence information on five "comparable" cases in an attempt to demonstrate the inconsistency of his discipline for "conduct unbecoming." In exhibits submitted to the Commission, Leavitt describes instances where five other officers were charged with "conduct unbecoming," each resulting in a lesser discipline than termination. For each example, Leavitt provided a brief description of the officer's actions and the discipline received.

¶31 After reviewing this evidence, the Commission concluded that Leavitt "failed to offer sufficient evidence to show that the sanction imposed on him was inconsistent with the discipline imposed on other similarly situated officers." In reaching this conclusion, the Commission found that the evidence Leavitt offered was inadequate because Leavitt had not demonstrated that the officers in the "comparable" cases were "similarly situated officers." The Commission reasoned that

(1) the alleged "comparable" examples offered by [Leavitt] involved patrol officers, not officers holding the rank of Sergeant or above;[ ](2) none of [Leavitt's] examples involved a command officer who engaged in verbal altercations through loud and inappropriate language, confronting one person after another, including minors, for such an extended period of time; and (3) none of the examples ... involved the escalation of a situation that had already calmed down, doing so in a very difficult part of the city, involving such a large number of people, and that put the safety of other Department Officers at risk.

In addition, the Commission also found that Leavitt had not introduced sufficient evidence "about the tenure or prior disciplinary histories" of the officers in the "comparable" cases, and therefore it was unable to determine the extent to which the other cases were (or were not) similar to Leavitt's.

¶32 We discern no abuse of discretion in the Commission's conclusions. The "comparable" information Leavitt presented to the Commission was insufficient to establish a prima facie case of inconsistent discipline. As this court has recognized, "[a] disciplined employee must do more than show that other employees received lighter punishments for similar offenses. The disciplined employee must identify employees in similar circumstances-employees with similar disciplinary histories and service time, for example-who received lighter punishments for similar offenses." Perez v. South Jordan City , 2014 UT App 31, ¶ 30, 320 P.3d 42 ; see also Phillips v. South Jordan City , 2013 UT App 183, ¶ 18, 307 P.3d 659 (rejecting an employee's argument that his termination was inconsistent when the employee failed to include "the performance histories or length of service ... which information may explain or justify the lesser discipline"). Here, Leavitt has not provided information that we have previously recognized as being crucial to demonstrate inconsistent discipline, such as the "disciplinary histories and service time" of the officers offered as "comparable" examples. See Perez , 2014 UT App 31, ¶ 30, 320 P.3d 42 ; see also Phillips , 2013 UT App 183, ¶ 18, 307 P.3d 659 (recognizing that "detailed information pertinent to a determination of whether the circumstances (not just the actions) of other officer sanctions were similar" is important in determining whether a sanction is inconsistent).

¶33 Moreover, based on the limited "comparable" information Leavitt did provide, the conduct of the officers in the other cases appears to be vastly different from Leavitt's conduct here. While each was accused of "conduct unbecoming," that is a category encompassing such a wide range of potential conduct that-in this case-mere reference to an identical charge does not by itself demonstrate similarity. See Nelson v. Orem City , 2012 UT App 147, ¶ 27, 278 P.3d 1089 ("Meaningful disparate treatment can only be found when similar factual circumstances led to a different result without explanation." (quotation simplified)), aff'd , 2013 UT 53, 309 P.3d 237. The conduct exhibited by the officers in the five "comparable" situations is not similar enough to the incident in question. None of the "comparable" officers had engaged in extended verbal altercations, had antagonized and harassed juveniles, had needlessly escalated a situation that had already calmed down, had jeopardized officer safety, or had made repeated comments about wanting to get "rough" with people.

¶34 On this record, we conclude that the Commission's determination that Leavitt had failed to carry his burden of proving disparate treatment was not an abuse of discretion. The Commission engaged in a thorough analysis of the evidence-including the "comparable" evidence offered by Leavitt-and reasonably concluded that Leavitt had not made the required showing.

C

¶35 Finally, Leavitt contends that the Chief failed to strictly follow Department procedures in making his disciplinary decision, and asserts that the Commission abused its discretion by overlooking those procedural violations. Leavitt identifies three alleged procedural violations.

¶36 First, Leavitt contends that the Chief failed to comply with the requirements of an agreement (the MOU) between the Salt Lake Police Association and the Department setting forth certain procedural rights that are to be afforded to officers during an investigation that can result in discipline. Article 15 of the MOU provides that the "[p]ersons deciding the disposition of an investigation may not be the person who made the initial allegation(s), either directly or indirectly." Leavitt argues that this article was violated because the Chief-who was ultimately responsible for deciding Leavitt's disposition-was also the person who made the initial complaint. Leavitt alleges that the Chief "hid[ ] the fact that [the Chief] was the [original] complainant" by instructing another officer to sign the form that "formally" started the investigation. We are not persuaded. As established by the Commission in its factual findings, which Leavitt does not contest, a Department lieutenant-not the Chief-submitted the initial complaint against Leavitt. The Commission was unwilling to find that the Chief had made the initial complaint, either directly or indirectly, and Leavitt does not challenge that finding. Affording appropriate deference to that finding disposes of Leavitt's argument: the lieutenant who submitted the initial complaint was not responsible for making the final decision to terminate Leavitt's employment, and there was therefore no violation of the MOU.

¶37 Second, Leavitt argues that the Chief violated both Salt Lake City Ordinance 2.72.210 (the Ordinance) and Salt Lake City Police Department Policy IV-050 (the Policy) by making his final decision to terminate Leavitt before the Chief had reviewed the report from a Citizen Review Board (CRB). Both the Ordinance and the Policy require the Chief to review and consider the CRB report prior to making a decision about discipline. Leavitt correctly points out that the Chief violated both the Ordinance and the Policy inasmuch as he did not review the CRB report-dated March 9, 2016-prior terminating Leavitt on February 22, 2016. However, Leavitt has not shown how this procedural infirmity could possibly have been harmful. See Lucas v. Murray City Civil Service Comm'n , 949 P.2d 746, 754-55 (Utah Ct. App. 1997) (stating that a party asserting procedural violations in this context must show "how these procedures would have resulted in a different outcome" had they been followed).

¶38 As an initial matter, it is important to note that, while the CRB is asked to weigh in on whether it believes the officer in question violated the relevant standards, it is not asked to offer any recommendation regarding appropriate punishment. Moreover, in this case the CRB sustained the allegations against Leavitt, specifically finding that Leavitt engaged in conduct that violated the Department's "conduct unbecoming" policy. Thus, Leavitt has not shown that it would have made any difference if the Chief had waited an additional two weeks to review a report that aligned with his determination as to whether a violation occurred, and that made no recommendation about discipline.

¶39 Finally, Leavitt points again to the Policy, which requires that all serious allegations of alleged misconduct must be investigated by IA, and that, following the conclusion of the IA investigation, IA's findings are to be forwarded to a Bureau Commander for review. In the event the complaint is sustained, "the Bureau Commander will make a recommendation of disposition to the Chief." But it remains the Chief's ultimate prerogative to make the final determination as to the level of discipline. Leavitt correctly points out that the Policy was not strictly followed because, after IA completed its investigation, its findings were never sent to an independent Bureau Commander for review, and an independent recommendation for discipline was never made. While we do not condone the failure to strictly follow the Policy, we do not discern any abuse of discretion on the part of the Commission in stating that it did "not find [Leavitt's] arguments on this point persuasive." Based on Leavitt's testimony at the hearing that he violated the Department and City policies for which he was charged, as well as the Body Cam Footage, there is no doubt that IA's identical finding was accurate. Moreover, Leavitt fails to identify any specific way in which this particular procedural infirmity harmed him, since even if the Bureau Commander had made a disciplinary recommendation, the Chief was not bound to follow it or even defer to it; indeed, Leavitt does not contest the fact that, under applicable law, the Chief alone makes the final decision as to discipline.

CONCLUSION

¶40 When the Chief made his initial decision about which punishment to impose upon Leavitt for his admitted violations of Department policies, he could have selected any one of several options. For instance, and among other things, he could have opted to impose a sanction that at least allowed Leavitt to remain employed-at a desk job, if necessary-for a few more months until he reached the twenty-year milestone. For well-articulated reasons, however, the Chief elected to terminate Leavitt immediately, and the Commission upheld that decision. Our authority to review this case is circumscribed: the question presented is not whether we would have done the same thing had we been in the Chief's shoes; instead, our review is limited to consideration of whether the Commission abused its discretion in upholding the Chief's decision to terminate Leavitt. And we discern no such abuse of discretion. Accordingly, we decline to disturb the Commission's decision.

      The Commission made extensive findings of fact after a two-day evidentiary hearing, and we draw heavily upon those findings in reciting the facts here. Specifically, any unattributed quotations included in our factual recitation are taken verbatim from the Commission's findings.

      Specifically, Leavitt grumbled that "[h]ere we are again, and just because they won't let us do what we need to do down here, and that means get a little rough and hands on like we used to"; that "[t]here needs to be zero tolerance"; and that "[t]here's rules and if you don't follow the rules, you're going to get man handled, that's the way it is down here."

      The threat was not captured by Leavitt's body camera because his body camera was not activated at the time the threat was allegedly made, and no other officers heard the threat.

      The reference to "Baxter" is presumably a reference to Judge John Baxter of the Salt Lake City Justice Court.

      In addition, although the Commission did not expressly mention it, it is evident that the second Harmon factor-whether the evidence of misconduct is tenuous-also weighs in favor of a stern sanction in this case. Here, not only was the conduct almost entirely captured on video, but Leavitt admitted wrongdoing.

      The first officer received twenty hours without pay after making a threatening and profane comment ("watch your back asshole") to a civilian while on duty at a professional baseball game in Salt Lake City. The second officer received verbal counseling after referring to a black man as "boy" and making lewd comments about the size of the man's genitalia. The third officer received a ten-hour suspension after making comments to someone insinuating that he or she was involved in criminal conduct. The fourth officer, a sergeant, received a letter of reprimand after using threatening language during a phone conversation with another officer. The fifth officer received a letter of reprimand-that was later withdrawn-after engaging in a public dispute with a civilian.

      Leavitt correctly notes that the Commission erred on this point, inasmuch as one of the five comparable cases Leavitt offered involved an officer holding the rank of sergeant. However, the Commission's error on this point does not invalidate its ultimate finding because Leavitt cannot show that the error mattered, i.e., that a contrary finding would have changed the outcome. See Ha v. Trang , 2016 UT App 155, ¶ 12, 380 P.3d 337 ("On appeal, the appellant bears the burden of showing not only that an error occurred, but that it was substantial and prejudicial." (quotation simplified)). Other than the rank of the officer ("sergeant") and the charge ("conduct unbecoming"), the facts of that episode are not at all factually similar to the incident at issue here.

      Leavitt does not contend that he was unable to obtain information about comparable cases from the City upon request. Indeed, Leavitt admits that he "sent several letters to the City asking for 'comparator' information" and that the City produced the information he requested.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Utah, Appellee, v. Reyfus Mellow GRAVES, Appellant.
    No. 20171023-CA
    Court of Appeals of Utah.
    Filed May 2, 2019
    Mark H. Tanner, Orangeville, Attorney for Appellant
    Sean D. Reyes, Jeanne B. Inouye, and Karen A. Klucznik, Salt Lake City, Attorneys for Appellee
    Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.
    Opinion
   HARRIS, Judge:

¶ 1 In the culmination of a months-long feud, Reyfus Mellow Graves shot at two other men as they arrived at his friend's apartment complex. Witnesses heard Graves-who hails from Puerto Rico-make the following exclamation as he fired his weapon: "This is how we do it in Puerto Rico!" The State charged Graves with (among other crimes) attempted murder. At the trial, the prosecutor asked several witnesses about Graves's exclamation and also made mention of it during closing argument. At the conclusion of the trial, the jury found Graves guilty. Although Graves did not object on racial or constitutional grounds to any of the State's questions and comments about Puerto Rico, and indeed brought up the subject himself on a number of occasions during trial, Graves now complains that the repeated references to Puerto Rico in a trial set in Emery County, Utah, imbued the proceeding with improper implications of racism and prevented him from receiving a fair trial. After reviewing the record in this case, including the entire trial transcript, we are unpersuaded by Graves's arguments, and therefore affirm his convictions.

BACKGROUND

¶ 2 On the afternoon of April 14, 2016, trouble was brewing in Ferron, Utah, as a string of profane text messages flew back and forth between and among four adult men: Graves, JH, ES and SO. The dispute appears to have originated from discussion of a woman (Girlfriend) who was at the time dating and living with Graves, but who had previously dated both JH and ES, and had also once lived in the same apartment as SO. As the texts were going back and forth, Graves, who had moved to Ferron just three months prior, was at ES's residence having a beer after work, and SO and JH were together at a different location. Graves and SO had never gotten along, though the reason for the bad blood between them is unclear from the record.

¶ 3 As the text exchange escalated, someone using ES's phone wrote "You want war[,] let's do war," to which JH replied, "Ok me and [SO] is down .... Where at [a]nd when[?]" A few minutes later, SO messaged ES that he was "on [his way] to [ES's] place." SO then apparently called ES's phone, which Graves answered. Profanity-laced threats ensued from both men. At this point, JH and SO borrowed a car from a neighbor and drove to ES's place, bringing JH's minor brother (Brother) along "for a witness."

¶ 4 In front of ES's apartment, Graves and ES were sitting in ES's Ford Bronco smoking cigarettes and drinking beer, since ES did not like people to smoke in his apartment. When JH and SO pulled up to the apartment complex, Graves got out of the Bronco and fired three shots from a .22 caliber revolver (that belonged to ES) at least roughly in the direction of JH and SO as they exited the vehicle. The bullets did not hit anyone. Several witnesses would later testify that, as he was firing, Graves rotated the gun sideways and yelled something to the effect of "This is how we do it in Puerto Rico!" Graves denied making any such statement.

¶ 5 When the shooting started, JH moved in front of Brother, who had stayed in the car and ducked below the window. SO took cover behind the car, but began taunting Graves with insults and racial slurs. Graves continued to point the gun at SO until ES approached Graves and took the gun from him. ES then took the gun into his apartment and hid it under a pillow on his couch. Once Graves was disarmed, SO ran up to him and started to pummel him with his fists, continuing to punch him even after he felt Graves go limp. At some point, JH joined the fray and held Graves against a wall as SO continued to beat him.

¶ 6 The scuffle was eventually interrupted by an off-duty highway patrol trooper (Trooper), who happened to live down the street and responded after hearing the sound of gunfire in his neighborhood and observing a man pointing what looked like a gun. After calling the matter in to dispatch, Trooper drove his unmarked police vehicle to the apartment complex, drew his service weapon, and ordered all of the men to get on the ground. The men complied, and either JH or SO told Trooper that Graves had been shooting at them. Based on this information, Trooper used the single pair of cuffs in his possession to handcuff Graves. Trooper searched Graves, but found no gun and therefore ordered everyone on the scene to stay in place until backup arrived. At some point, ES explained that the gun was in his apartment. After additional law enforcement officers arrived at the scene, they confirmed that the gun was indeed where ES claimed it was, and secured his apartment until they procured a search warrant.

¶ 7 Graves, ES, JH, and SO were all arrested, taken into custody, and questioned independently that night. Brother also provided a statement to officers before leaving the scene. A detective (Detective) from the Emery County Sheriff's Office collected evidence from the scene, taking pictures of where it appeared that bullets had struck a nearby residence and the car that JH and SO had been driving. Detective examined the revolver recovered from ES's apartment and found that it contained three spent rounds and six unspent rounds. Detective also interviewed three additional witnesses, including one of ES's neighbors (Neighbor).

¶ 8 The State charged Graves with two counts of attempted murder and two counts of felony discharge of a firearm, but after pretrial proceedings one of the attempted murder counts was changed to a charge of reckless endangerment. Graves eventually stood trial for one count of attempted murder, two counts of felony discharge of a firearm, and one count of reckless endangerment.

¶ 9 At trial the prosecution called Trooper, ES, JH, Brother, SO, the officer (Officer) who transported ES to jail after the incident, Detective, and Neighbor. The State's case focused on the text messages exchanged on the day of the shooting as well as on Graves's actions immediately before and during the shooting. In his opening statement, the prosecutor described the shooting as well as Graves's alleged statement:

At that point, there hadn't been any words exchanged between them, but one thing that had been said that [ES] will tell you is that when the defendant got out of the Bronco, he said, "I'll show you how we do things in Puerto Rico."
The defendant is from Puerto Rico. He had pulled his gun out, he held it an angle-not straight up but at an angle-and fired at least the first shot that way. We don't know exactly where those shots went, in what order. We know there were a total of three shots that were fired out of that .22.

¶ 10 During trial, the prosecution asked ES, JH, and SO-but not Brother, Neighbor, or Trooper-whether they had heard Graves say anything about Puerto Rico. JH and SO

both testified that Graves shouted something to the effect of "this is how we do it in Puerto Rico" or "that's how they do [it] in Puerto Rico." However, ES testified that he never heard Graves say anything about Puerto Rico that night. The prosecution pressed ES on this point, and after ES testified, called Officer to the stand, who testified that ES had told her, as she transported him to jail on the night of the incident, that Graves said something to the effect of "I'll show you how we do it in Puerto Rico." At this point, defense counsel lodged a hearsay objection to the admission of Officer's statement about what ES had told her while being transported to jail, but the trial court overruled the objection.

¶ 11 The State drew out other details of the shooting during its case-in-chief. ES testified that Graves had obtained his gun surreptitiously, after asking to see the gun while they were in the apartment. Further, the State asked JH, Brother, and SO whether Graves held the gun sideways or upright during the shooting. These witnesses all testified that Graves held the gun sideways, or (in Brother's words) "like how gangs ... do it." JH and SO testified that Graves pointed the gun directly at them as he shot and continued to aim the gun at SO afterward. Trooper and Neighbor both testified that they saw Graves pointing the gun at SO, though neither saw the shooting.

¶ 12 ES, JH, and SO also testified about the ongoing dispute between SO and Graves. ES and JH testified that the dispute was driven by SO, and began after Girlfriend evicted SO from her apartment and started a relationship with Graves. They further testified that SO had made several public threats to Graves, sometimes threatening to kill Graves and his family, though no one appears to have taken these threats seriously. For his part, SO testified that he never threatened Graves and that Graves had started the quarrel between them.

¶ 13 The State also called Detective, who testified that it appeared to him that a bullet had struck the vehicle driven by JH, although the bullet had not penetrated the vehicle. Though Detective was, by his own admission, "by no means an expert," he testified that it appeared to him that the mark was made by a small caliber bullet, such as a .22. Detective also testified that he observed what appeared to be a fresh bullet hole in a house across the street from the apartment complex, again consistent with a .22 caliber bullet.

¶ 14 During the defense's case, Graves testified in his own defense, and disputed several parts of the State's version of events. Graves testified that ES handed him the gun as JH and SO arrived; that he fired into the air twice and into the ground once and that he never intended to actually hit anyone; that he fired the gun in self-defense; that he never made a statement about Puerto Rico on the night of the shooting; that he held the gun "straight" and not sideways; and that he had never shot a gun prior to that night. The defense also obtained the court's permission to have Graves's mother testify telephonically from Puerto Rico. At the outset of her testimony, defense counsel asked her where she was testifying from, and she answered that she was in Puerto Rico and that she had lived there for many years. She also testified that SO had once threatened her with a pistol when she was visiting Graves in Utah.

¶ 15 During closing argument, the prosecutor argued that Graves could not claim self-defense because the whole altercation was combat by agreement, and Graves had "brought a gun to a fistfight." The State also argued that Graves's alleged statement about Puerto Rico was probative of his intent to actually shoot JH and SO, and told the jury that "[i]f you believe that he said, 'This is how we do it in Puerto Rico,' he cannot claim justification. He cannot claim ... anything but a consensual altercation there." Further, the prosecutor told the jurors that they should not take seriously any possible threats made by SO to Graves because "[t]hat's the way these people talk," and that the standard was "what would a reasonable person do under the circumstance, not the culture that these people live in." In its closing, the defense countered by pointing to the inconsistencies in the witnesses' testimony, the fact that no bullets had been recovered to conclusively link the bullet holes or marks to the gun Graves used, and the fact that Graves insisted he fired in the air because he was scared. The jury found Graves guilty on all four charges, and Graves now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 16 Graves presents two issues for our review. First, he argues that his constitutional rights to due process and equal protection were violated at trial due to racial prejudice. "Constitutional issues ... are questions of law that we review for correctness." State v. Martinez , 2013 UT 23, ¶ 6, 304 P.3d 54 (quotation simplified).

¶ 17 Second, Graves argues that his conviction for attempted murder was not supported by sufficient evidence. When we consider an insufficiency of the evidence claim, "we review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury." State v. Nielsen , 2014 UT 10, ¶ 46, 326 P.3d 645 (quotation simplified). "We may reverse a verdict only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he or she was convicted." Id. (quotation simplified).

¶ 18 Neither of these issues was preserved at the trial level, and we therefore review them both for plain error. See State v.Ringstad , 2018 UT App 66, ¶ 32, 424 P.3d 1052. The plain error standard requires an appellant to show that "(1) an error exists; (2) the error should have been obvious to the [trial] court; and (3) absent the error, there is a reasonable likelihood of a more favorable outcome." State v. Robinson , 2018 UT App 227, ¶ 25, 438 P.3d 35 (quotation simplified).

ANALYSIS

¶ 19 The United States Constitution requires that all persons, regardless of race, "shall stand equal before the laws of the States." Strauder v. West Virginia , 100 U.S. 303, 307, 25 L.Ed. 664 (1879), abrogated on other grounds by Taylor v. Louisiana , 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). "Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice." Rose v. Mitchell , 443 U.S. 545, 555, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979). "Appeals to racial passion can distort the search for truth and drastically affect a juror's impartiality,"

United States v. Doe , 903 F.2d 16, 25 (D.C. Cir. 1990), and therefore "[t]he Constitution prohibits racially biased prosecutorial arguments," McCleskey v. Kemp , 481 U.S. 279, 309 n.30, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).

¶ 20 But it does not follow from these unassailable principles that any mention of a litigant's race or ethnicity is always constitutionally impermissible. In certain instances, references to race "pose[ ] no threat to [the] purity of the trial." Doe , 903 F.2d at 25. Race or ethnicity may be, for instance, a critical piece of the identification of a suspect or a victim, and the mention of race or ethnicity in such fact-based contexts does not violate a defendant's rights. Id. at 26. Yet, a trial can be rendered constitutionally unsound by even one statement inappropriately appealing to racial prejudice or emotion. See id. (stating that even a "brief ... use of race" in a non-fact-based way "as a factor in closing argument is improper" (quotation simplified)). "The line of demarcation" between permissible and impermissible invocations of race "is crossed ... when the argument shifts its emphasis from evidence to emotion." Id. at 25. On the one hand, evidence-based "unembellished reference[s]" to race or ethnicity "pose[ ] no threat to [the] purity of the trial." Id. On the other hand, emotion-based invocation of race, in an attempt to tap into the potential or perceived racial bias of jurors, is "beyond the pale of legally acceptable modes of proof." Id.

¶ 21 In this case, Graves argues that, during the trial, the State violated his constitutional rights by "repeatedly" referring to his Puerto Rican heritage. Indeed, Graves asserts that his ethnicity was mentioned 57 times" during the two-day trial, including "48 times the second day." Graves concludes therefrom that his trial was irretrievably tainted by racist implications, and that his constitutional right to a fair trial was violated.

¶ 22 In response, the State makes two basic points, both of which are sound. First, the State notes that each of the references to Puerto Rico was, viewed individually, either entirely innocuous; brought up by Graves himself; or related to the statement Graves was alleged to have made at the time of the shooting, which statement the State maintains has probative value in establishing Graves's intent at the time he fired the gun. That is, the State contends-and Graves does not specifically contest-that each of the individual references to Puerto Rico was evidence-based rather than emotion-based. Second, the State correctly points out that Graves failed to object to any of the multiple references to Puerto Rico on the ground that they were racially motivated or that they deprived Graves of a fair trial for racial reasons, and argues that Graves has fallen short of demonstrating that the trial court committed plain error.

¶ 23 As noted above, in order to show that the trial court plainly erred, Graves must demonstrate that "(1) an error exists; (2) the error should have been obvious to the [trial] court; and (3) absent the error, there is a reasonable likelihood of a more favorable outcome," i.e., that the error was harmful. State v. Robinson , 2018 UT App 227, ¶ 25, 438 P.3d 35 (quotation simplified). Graves cannot satisfy this standard in this case.

¶ 24 First, Graves fails to convince us that any error occurred with respect to the number of times Puerto Rico was mentioned at trial. See McCleskey , 481 U.S. at 309 n.30, 107 S.Ct. 1756 ; see also Doe , 903 F.2d at 25. Graves makes no effort to identify any individual comment or question by the prosecutor that amounts to an appeal to racial passion. To be sure, the prosecutor asked multiple witnesses about Graves's alleged statement, and mentioned it again during closing argument. But Graves denied making the statement, and by asking about it the prosecutor demonstrated that two witnesses had been consistent in their recollection of it, that one witness was inconsistent in his recollection of it, and that Graves denied it altogether. These types of questions did not violate Graves's constitutional rights, since "unembellished reference[s] to evidence of race ... pose[ ] no threat to [the] purity of the trial." Doe , 903 F.2d at 25. In the end, Graves has simply failed to demonstrate that the State's questioning about this issue was excessive, or that any individual reference to Puerto Rico was, standing alone, emotion-based rather than evidence-based.

¶ 25 Graves's argument is further undermined by the fact that at least twenty of the references to Puerto Rico were introduced by the defense or defense witnesses. Graves's mother-a defense witness-mentioned Puerto Rico four times during her testimony, and Graves's attorney even specifically asked her, "How long have you lived in Puerto Rico?" and "Have you ever left Puerto Rico?" Graves testified in his own defense, and he and his attorney mentioned Puerto Rico nine times during Graves's own direct examination. Defense counsel also repeated Graves's alleged statement about Puerto Rico three times while cross-examining some of the State's witnesses, and mentioned the statement himself twice during closing argument.

¶ 26 In addition, several other references to Puerto Rico came from witnesses, rather than at the instance of the prosecutor, and Graves directs us to no case law in which a reference to race or ancestry made by a witness-rather than by the State-was held to be constitutional error. Indeed, in Doe , the racially-based evidence given by a detective, some of which had been elicited during questioning by the government, was analyzed and excluded under rules 402 and 403 of the Federal Rules of Evidence, not the Constitution, even while the racially-based remarks made by the prosecutor that relied on the very same evidence were analyzed and excluded on constitutional grounds. 903 F.2d at 19-28.

¶ 27 Furthermore, Graves acknowledged at oral argument that the trial court properly allowed into evidence at least some references to Graves's Puerto Rican heritage, including references to the statement Graves was alleged to have made while firing the gun, and made clear that he does not take the position that the trial court was under an obligation, on the facts of this case, to scrub the trial clean of all references to Puerto Rico. Instead, Graves asserts that "at some point" the cumulative effect of the repeated references to Puerto Rico became error. By conceding that at least some of the references are permissible, and by failing to identify any of the specific references as emotion-based rather than evidence-based, Graves is effectively acknowledging that the State's individual references to Puerto Rico were the type of "unembellished reference" to ancestry that is not constitutionally forbidden, since even a single appeal to race-based emotion would be impermissible. See id. at 25.

¶ 28 While we certainly leave open the possibility that, in a different case, repeated and gratuitous references to race (even in an evidence-based context) might be employed for an improper racially-motivated purpose, Graves has not persuaded us that any such thing happened here. As an initial matter, Graves does not identify any specific juncture in the trial, activated by any specific comment or question by the State, at which he believes the references crossed the line from individually permissible to cumulatively impermissible. He merely asserts that this must have happened "at some point." Without more assistance from Graves on this point, we have a hard time discerning any reason to vary our usual rule that a series of non-errors cannot amount to cumulative error. Cf. State v. King , 2017 UT App 43, ¶ 38, 392 P.3d 997 ("Because we have identified no errors ... it follows that there can be no prejudice resulting from multiple errors for us to consider cumulatively."). In the end, our review of the trial transcript leaves us unconvinced that the references to Graves's Puerto Rican heritage were constitutionally impermissible.

¶ 29 Next, even if we were to adopt Graves's position that a large enough number of individually-permissible fact-based references to race can at some point become unconstitutional simply by sheer force of repetition, he would still not prevail here, because any error, in order to constitute plain error, must have been obvious to the trial court. "To establish that the error should have been obvious to the trial court, the appellant must show that the law governing the error was clear at the time the alleged error was made." State v. Ringstad , 2018 UT App 66, ¶ 79, 424 P.3d 1052 (quotation simplified). "An error is not obvious if there is no settled appellate law to guide the trial court." Id. (quotation simplified). We are aware of no case, and Graves directs us to none, espousing the principle he now advocates.

¶ 30 Graves argues that it is clear from cases such as McCleskey that the Constitution protects defendants from the "introduction of racial prejudices at trial." Graves correctly points out that McCleskey stands for the proposition that judges must "engage[ ] in unceasing efforts to eradicate racial prejudice from our criminal justice system." 481 U.S. at 309, 107 S.Ct. 1756 (quotation simplified). But McCleskey also recognizes that, in all cases, there exists the risk that racial or "other kinds of prejudice" might influence the trial, id. at 308, 107 S.Ct. 1756, and that, "[d]espite these imperfections, our consistent rule has been that constitutional guarantees are met when the mode for determining guilt or punishment itself has been surrounded with safeguards to make it as fair as possible," id. at 313, 107 S.Ct. 1756 (quotation simplified). Indeed, no court of which we are aware has placed a limit on the number of times a prosecutor may make individually-permissible, evidence-based references to race during a trial. See generally Pena-Rodriguez v. Colorado , --- U.S. ----, 137 S. Ct. 855, 867-68, 197 L.Ed.2d 107 (2017) (listing safeguards "enforc[ing] the Constitution's guarantee against state-sponsored racial discrimination," which list does not include any limits on the number of times a prosecutor may mention race); McCleskey , 481 U.S. at 309 n.30, 107 S.Ct. 1756 (same). Because there was no clear appellate law stating that repeated permissible references to race or ethnicity can amount to cumulative constitutional error, we cannot conclude that Graves's alleged error would have been obvious to the trial court from a legal standpoint. In addition, from a factual standpoint, we are unconvinced after reviewing the trial transcript that there was any point at which it should have become obvious to the judge that the trial had become irretrievably infected by the introduction of race-based evidence or argument.

¶ 31 Finally, Graves argues that his conviction is not supported by sufficient evidence. In considering "an insufficiency of the evidence claim, we review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury." State v. Nielsen , 2014 UT 10, ¶ 46, 326 P.3d 645 (quotation simplified). "We may reverse a verdict only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he or she was convicted." Id. (quotation simplified). Graves points to the fact that law enforcement did not conclusively link the gun Graves used to either the mark on the car or the hole in the neighbor's house, and to conflicts in the testimonies of the various witnesses. But the two witnesses who saw the events best both testified that Graves shot at them, not into the air, and other witnesses testified that they saw Graves pointing the gun in the direction of SO for at least part of the altercation. The identity of the gun was never in issue, and Detective testified that the mark on the car and the hole found in the neighbor's house were consistent with the caliber of the gun Graves used. This evidence is neither inconclusive nor improbable, especially when viewed "in the light most favorable to the verdict of the jury," id. (quotation simplified), and we therefore conclude that there was sufficient evidence to support Graves's conviction.

CONCLUSION

¶ 32 We have reviewed the trial transcript and other relevant portions of the record and are unconvinced that Graves's trial was impermissibly infected by racial prejudice. Graves has not shown how or where the prosecutor's references to Puerto Rico during trial became constitutionally forbidden appeals to racial bias, or at what point this would have become an obvious error. Nor has Graves shown how the evidence presented at trial was inherently improbable or insufficient to support his convictions.

¶ 33 Affirmed.

      The State did ask Neighbor if she had been able to "hear anything that was being said" during the incident, but the State's questioning did not reference any specific statement. When Neighbor answered that she had not been able to hear any statements, the State moved on to another line of questioning. Similarly, the State asked Brother questions about what he saw and heard on the night in question, but asked no specific question about the "Puerto Rico" statement; on cross-examination, however, defense counsel specifically asked Brother whether he had heard Graves make a statement about Puerto Rico as he fired, and Brother answered in the negative.

      See Utah Code Ann. § 76-2-402(2)(a)(iii) (LexisNexis 2017) ("A person is not justified in using force ... if the person ... was engaged in a combat by agreement ....").

      It is unclear whether the prosecutor meant to use "these people" in a racially charged way (both SO and Graves were part of Emery County's small non-white population), or if he meant it to refer to all four men involved in the altercation (the prosecutor had also asked JH-who is white-if racial slurs and threats were "just common talk" "in this culture that you're in"). Either way, Graves did not object to this language at trial, nor did he raise it as an issue in his opening brief, and we therefore decline to address it further. See Rodriguez v. Kroger Co. , 2018 UT 25, ¶ 31 n.8, 422 P.3d 815 ("Issues not raised in an opening brief are waived.").

      Graves argues that both issues were preserved at trial. In order for an issue to be preserved for appeal, "(1) the issue must be raised in a timely fashion; (2) the issue must be specifically raised; and (3) a party must introduce supporting evidence or relevant legal authority." State v. Moa , 2012 UT 28, ¶ 23, 282 P.3d 985 (quotation simplified). Our review of the record reveals that Graves did not ever raise any constitutional issue before the trial court. Graves argues that he objected during the testimony of Officer, but this objection was specifically based on the hearsay aspect of that particular declarant's testimony. At no point during the trial did Graves object to any of the State's other numerous mentions of Puerto Rico, and at no point did Graves raise any objection related to racial bias or unconstitutionality.
      As to the sufficiency of the evidence claim, Graves argues that it was preserved by his motion to reduce his offense pursuant to Utah Code section 76-3-402. But that statute, while it requires a court to consider "the nature and circumstances of the offense," Utah Code Ann. § 76-3-402(1) (LexisNexis 2017), does not concern itself with the sufficiency of evidence, and therefore does not specifically implicate that issue.

      We recognize that race, ethnicity, and ancestry are overlapping and fluid concepts, especially in relation to the terms "Hispanic" and "Latino." See, e.g. , Hispanic Origin , United States Census Bureau, https://www.census.gov/topics/population/hispanic-origin.html [https://perma.cc/6JUF-3V27] ("Hispanic origin can be viewed as the heritage, nationality, lineage, or country of birth of the person or the person's parents or ancestors before arriving in the United States. People who identify as Hispanic, Latino, or Spanish may be any race."). From a constitutional standpoint, "it matters not whether [a] reference is to race, ancestry or ethnic background." United States v. Doe , 903 F.2d 16, 25 (D.C. Cir. 1990).

      While the State takes issue with Graves's count of the number of times "Puerto Rico" was mentioned, and pegs the total number at fifty-one rather than fifty-seven, there is no doubt that Puerto Rico was discussed often during the trial.

      As further indication of the State's evidence-based (rather than emotion-based) reasons for asking about Puerto Rico, it is worth noting that the prosecution resisted any temptation to ask Brother, Neighbor, or Trooper about Graves's alleged statement, even though it might have had valid grounds to do so.

      We also note that repeated comments or questions quickly lose their probative value, and would be ripe for an objection-pursuant to rule 403 of the Utah Rules of Evidence -that the comments are cumulative, are a waste of time, or have little probative value compared to their potentially prejudicial effect. In this case, however, Graves lodged no such objection.


author: APPLEBY, Judge:

text:
    Darnell GHIDOTTI and Greg Ghidotti, Appellants, v. Melodie WALDRON and Re/Max Metro, Appellees.
    No. 20180045-CA
    Court of Appeals of Utah.
    Filed May 2, 2019
    Lincoln W. Hobbs and Sarah H. Orme, Salt Lake City, Attorneys for Appellants
    Stuart H. Schultz and Nicholas E. Dudoich, Salt Lake City, Attorneys for Appellees
    Judge Kate Appleby authored this Opinion, in which Judges Michele M. Christiansen Forster and David N. Mortensen concurred.
    Opinion
   APPLEBY, Judge:

¶1 Darnell and Greg Ghidotti appeal the district court's grant of summary judgment in favor of Melodie Waldron and Re/Max Metro (collectively, Re/Max). The court ruled that the Ghidottis were unable to prove their damages with the requisite degree of certainty and had not properly disclosed Darnell as an expert witness prior to trial. We affirm.

BACKGROUND

¶2 The Ghidottis were looking to purchase a house where they could live and operate a dog training and boarding business. They specifically wanted to find one in a community that was not controlled by a homeowners' association (HOA) because they anticipated an HOA would not allow them to operate this type of business from their home. One of the listings the Ghidottis reviewed with their real estate agent was for a property (Property) that apparently was not subject to an HOA: the listing left "blank[s]" after "HOA contact," "HOA phone," and "HOA remarks,"

and the section identifying "Restrictions on the property" was marked "No."

¶3 The Ghidottis signed a real estate purchase contract for the Property in May 2014. The contract required the sellers (Sellers) to make various disclosures including providing "a copy of any restrictive covenants (CC&Rs) [and] rules and regulations affecting the property." In their disclosures, the Sellers represented the Property was not "part of a condominium or other [HOA]." The Ghidottis allege they were never provided copies of any CC&Rs or rules and regulations affecting the Property. Based on the representations in the real estate purchase contract and the Sellers' disclosures that the Property was not subject to an HOA, the Ghidottis closed the deal on the Property.

¶4 After purchasing the Property, the Ghidottis applied for a conditional use permit, which they needed for keeping dogs on the Property. After becoming aware of the permit application, members of the Country Lane Ranchette's Homeowners' Association objected to its issuance, asserting that the Property was subject to CC&Rs. Further research revealed the Property was in fact subject to CC&Rs, which prohibited the Ghidottis from keeping their own dogs on the Property and precluded them from operating a training and kennel business there.

¶5 The Ghidottis filed a lawsuit in 2015 against the Sellers, Re/Max, and their real estate agent and broker. In March 2015, the Ghidottis served their initial disclosures. The disclosures designated Darnell as a fact witness who potentially would testify about the Ghidottis' desire to purchase property not subject to an HOA, their efforts to ensure the Property was not subject to an HOA, the information provided to them about the Property, and how they discovered it was subject to an HOA. Neither Ghidotti was identified as an individual who would testify about damages. Darnell was mentioned among the "individuals who the plaintiffs may call in their case in chief" along with the phrase, "See summary of expected testimony above." The "computation of damages" section stated that the Ghidottis had "not yet had an opportunity to ascertain their damages." Further, it stated that the damages calculation would "depend upon if and when the [Ghidottis were] able to sell their Property" and "upon the expenses [the Ghidottis were] forced to incur in defending the action brought against them by their neighbors who [were] seeking to enforce the [CC&Rs]."

¶6 As fact discovery progressed, Darnell testified in her deposition about her calculation of damages resulting from their inability to run the business out of their home. Darnell acknowledged this was a new business operation. She also testified there were no other businesses in the area that offered similar services. After Darnell's deposition the Ghidottis filed their first supplemental disclosures, which included financial documents "the [Ghidottis] may offer in their case-in-chief." The documents were labeled but no explanation was provided along with them. The Ghidottis filed their second supplemental disclosures, which provided the following damages calculation:

The [Ghidottis] have computed their damages based on the difference in revenue their business ... would have earned, had they been able to operate the business as originally planned, and what it will earn in light of the required changes to its business plan. Because the [Property] ... is in the Country Lane Ranchette's Homeowners' Association and is subject to restrictive covenants-a fact that was concealed from and thus unbeknownst to [the Ghidottis] at the time of their purchase, despite their efforts to avoid purchasing a property in a homeowners association-[the Ghidottis] cannot operate the business on their property, as originally intended, but will have to operate the business at an off-site location. Operating at an off-site facility changes the services [the Ghidottis] can offer and increases operation costs. The [Ghidottis] calculate that the total damages, over the 20 years that [they]
intend to run their business, will be $2,784,159.[ ]

The Ghidottis did not disclose any expert witnesses and acknowledge they never intended to do so.

¶7 In late 2015, the Ghidottis' real estate agent and broker filed a motion for summary judgment arguing the Ghidottis were unable to prove their damages with reasonable certainty. The district court granted the motion and dismissed the Ghidottis' claims against their real estate agent and broker as well as Re/Max. The court ruled that the Ghidottis could not prove their damages with the requisite degree of certainty because they did "not have an expert to testify on profit potential." And although the Ghidottis suggested that "Darnell planned to offer expert testimony at trial," they did not properly disclose her as an expert witness under the Utah Rules of Civil Procedure. The Ghidottis appeal.

ISSUE AND STANDARD OF REVIEW

¶8 The Ghidottis argue the district court erred in granting summary judgment on the grounds that Darnell was not properly disclosed as an expert witness under the Utah Rules of Civil Procedure and therefore they failed to prove their damages with the requisite degree of certainty. "Interpretation of the Utah Rules of Civil Procedure is a question of law that we review for correctness." Pete v. Youngblood , 2006 UT App 303, ¶ 7, 141 P.3d 629. This court also "reviews a [district] court's entry of summary judgment for correctness and gives its conclusions of law no deference." Utah Farm Bureau Ins. Co. v. Crook , 1999 UT 47, ¶ 3, 980 P.2d 685. Further, "in reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." GLFP, Ltd. v. CL Mgmt., Ltd. , 2007 UT App 131, ¶ 5, 163 P.3d 636 (quotation simplified).

ANALYSIS

¶9 The Ghidottis challenge the district court's finding that they failed to timely disclose their intent to rely on Darnell as a non-retained expert witness. They acknowledge they did not properly disclose her as a retained expert but argue they "implicitly and sufficiently identified [Darnell] as an unretained expert witness to testify regarding the Ghidottis' damages." The Ghidottis argue that Darnell was properly disclosed as a non-retained expert when they listed her as a potential fact witness in their initial disclosures, when she testified about their damages during her deposition, and when they disclosed their financial documents in their first supplemental disclosures. The Ghidottis argue summary judgment was improper because these disclosures gave Re/Max "ample notice" that they intended to have Darnell testify about their damages as an expert at trial. We disagree.

¶10 Summary judgment is appropriate when "the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(a). The district court "should not weigh disputed evidence" and must view "the facts and all reasonable inferences to be drawn therefrom in a light most favorable to the nonmoving party." Pigs Gun Club, Inc. v. Sanpete County , 2002 UT 17, ¶ 24, 42 P.3d 379 (quotation simplified).

¶11 In this case, Re/Max argued the Ghidottis were unable to prove damages with the requisite degree of certainty and therefore their claims should be dismissed on summary judgment. To recover damages, a plaintiff must prove both the fact of damages and the amount of damages. Atkin, Wright & Miles v. Mountain States Tel. & Tel. Co. , 709 P.2d 330, 336 (Utah 1985). "The level of persuasiveness required to establish the fact of loss is generally higher than that required to establish the amount of a loss." Id. (quotation simplified). But "there still must be evidence that rises above speculation and provides a reasonable, even though not necessarily precise, estimate of damages." Id.

¶12 The Ghidottis sought damages in the form of lost profits, which "must be established with ... sufficient certainty that reasonable minds might believe from a preponderance of the evidence that the damages were actually suffered." Kilpatrick v. Wiley, Rein & Fielding , 2001 UT 107, ¶ 76, 37 P.3d 1130 (quotation simplified). In particular, new businesses, such as the Ghidottis', "lack an actual record of past earnings, which decreases the certainty with which one could predict future profits." Id. (quotation simplified). But this does not "automatically preclude new businesses from recovering lost profits" and "new businesses should be allowed to try to prove lost profits up to a reasonable level of certainty by other means." Id. (quotation simplified). "Alternative means of establishing the certainty of lost profits include expert testimony of profit potential, evidence of the actual profits of similar businesses, and evidence of subsequent earnings of the business claiming lost profits." Cook Assocs., Inc. v. Warnick , 664 P.2d 1161, 1166 n.4 (Utah 1983).

¶13 In this case, the Ghidottis desired to start a new business. Because they did not have any record of past earnings they needed to prove their damages through other means. See id. It also was undisputed that the Ghidottis did not retain an expert to testify about profit potential. In its ruling the district court noted that during the hearing on the motion for summary judgment the Ghidottis "seemed to suggest that [Darnell] planned to offer expert testimony on profit potential at trial." But as the district court ruled, the Ghidottis never properly disclosed Darnell as a non-retained expert under rule 26(a)(4)(E) of the Utah Rules of Civil Procedure, which provides,

If a party intends to present evidence at trial under Rule 702 of the Utah Rules of Evidence from any person other than an expert witness who is retained or specially employed to provide testimony ... that party must serve on the other parties a written summary of the facts and opinions to which the witness is expected to testify.

¶14 The Ghidottis argue they adequately disclosed "a written summary of the facts and opinions to which [Darnell was] expected to testify." Utah R. Civ. P. 26(a)(4)(E). But contrary to this argument, such a disclosure is not enough. This court has consistently held that disclosing a witness as a fact witness, by itself, is insufficient to allow that witness to also present expert testimony. See Solis v. Burningham Enters. Inc. , 2015 UT App 11, ¶ 19, 342 P.3d 812 (explaining that disclosing a witness as a fact witness but omitting the witness from the expert witness list "did not fairly inform [the opposing parties] that opinion testimony may be offered from [the witness]" (quotation simplified)); Hansen v. Harper Excavating, Inc. , 2014 UT App 180, ¶ 17, 332 P.3d 969 ("[A party's] disclosure of his intent to call treating physicians as fact witnesses is not sufficient to allow the admission of their expert opinions."); Ladd v. Bowers Trucking, Inc. , 2011 UT App 355, ¶ 13, 264 P.3d 752 ("Without an expert witness designation, [the plaintiff] cannot establish causation."); Pete v. Youngblood , 2006 UT App 303, ¶¶ 15-16, 141 P.3d 629 (determining that the plaintiff was required to "identify [a witness] as a person who may be used at trial to present expert testimony" despite the plaintiff's argument that she "substantially complied with the requirements of [the expert witness disclosure rule] because [the witness] was named as a fact witness"). Here, the Ghidottis produced a summary of what Darnell was expected to testify about as a fact witness, not as an expert. We conclude that this was insufficient to disclose Darnell as a non-retained expert witness under rule 26(a)(4)(E).

¶15 The Ghidottis also argue that they implicitly disclosed Darnell as an expert witness and the substance of her potential testimony was properly disclosed through her deposition and financial documents. This argument is contrary to our precedent. In Solis , this court held that implicit disclosures are insufficient to qualify a fact witness as an expert witness. 2015 UT App 11, ¶ 19, 342 P.3d 812. The plaintiff in Solis claimed she adequately notified the defendants of her intent to use a designated fact witness as an expert witness because her initial disclosures included diagrams she expected the witness to testify about. Id . ¶ 18. Relying on Pete , this court determined that designating a fact witness and also providing supplemental records or diagrams is insufficient to designate that witness as an expert. Id. Ultimately, if a party designates a fact witness but fails to include that witness on an expert witness list, that party fails to satisfy the expert disclosure requirements under rule 26. Id. ¶ 19. Here, the Ghidottis failed to include Darnell as an expert in their disclosures. Thus, their "implicit" disclosure through other means did not comply with rule 26.

¶16 The Ghidottis argue that such a narrow interpretation of expert disclosure requirements is inconsistent with rule 1, which states that the rules of civil procedure "shall be liberally construed and applied to achieve the just, speedy, and inexpensive determination of every action." Utah R. Civ. P. 1. We recognize that " 'all [the disclosure rules] require is that a party fairly inform its opponent that opinion testimony may be offered from a particular witness.' " RJW Media Inc. v. Heath , 2017 UT App 34, ¶ 23, 392 P.3d 956 (quoting Utah R. Civ. P. 26 advisory committee notes). But the requirement to " 'fairly inform' ... includes 'that such witnesses be identified and the information about their anticipated testimony should include ... any opinion testimony that a party expects to elicit from them at trial.' " Id. ¶ 24 (quoting Utah R. Civ. P. 26 advisory committee notes). Importantly, "[a]long with the expert designation , there must be some disclosure of expected opinion and fact testimony." Id. (emphasis added). That did not happen here. Darnell was never designated as an expert and her opinions were not adequately disclosed. Adhering to the requirements of the disclosure rule is not, under these circumstances, inconsistent with rule 1.

¶17 As this court noted in RJW , disclosure requirements are "not merely a matter of form." Id. ¶ 25. The disclosure requirements "serve the beneficial purpose of ... giving the opposing party the confidence to not engage in further discovery. But this is only true if the potential for surprise is reduced by at least minimum compliance with the rule 26 disclosure requirements." Id. These minimal disclosure requirements are necessary so "parties can make better informed choices about the discovery they want to undertake or, just as important, what discovery they want to forgo." Id. Here, Re/Max relied on the Ghidottis' representation that they had no intention of using experts in not hiring any experts of their own. Such strategic decisions are a key aspect of discovery and must be carefully safeguarded by strictly following the disclosure requirements.

¶18 Finally, the district court ruled that the Ghidottis did not demonstrate that their failure to disclose Darnell as an expert was harmless or that there was good cause for the omission. See Utah R. Civ. P. 26(d)(4) ("If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure."). The court ruled that late disclosure of Darnell as an expert would be harmful because the time set for trial was approaching and none of the defendants had retained experts in reliance on the Ghidottis not disclosing any expert witnesses. We conclude the court did not abuse its discretion in making this determination. See Townhomes at Pointe Meadows Owners Ass'n v. Pointe Meadows Townhomes, LLC , 2014 UT App 52, ¶ 17, 329 P.3d 815 (holding that the district court did not abuse its discretion in finding the failure to disclose an expert was not harmless when "a substantial amount of discovery would need to be revisited or performed ... well after the deadline for completing these steps had passed"), superseded by rule as stated in Baumann v. Kroger Co. , 2016 UT App 165, 381 P.3d 1135. This finding also supports strict enforcement of the disclosure requirements because allowing parties to designate witnesses at this stage in the litigation would not promote a just, speedy, and inexpensive determination of an action as envisioned by rule 1 of the Utah Rules of Civil Procedure.

¶19 We conclude that Darnell's testimony about damages in her deposition, the financial exhibits, and the statement of damages in the supplemental disclosures are insufficient to support a conclusion that Darnell was properly disclosed as a non-retained expert witness under the Utah Rules of Civil Procedure.

CONCLUSION

¶20 The district court properly granted summary judgment in favor of Re/Max when the Ghidottis failed to prove their damages with the requisite degree of certainty by failing to properly disclose Darnell as an expert witness. Affirmed.

      As is our practice when parties share a last name, we sometimes refer to them by their first names with no disrespect intended by the apparent informality.

      The claims against the Sellers and the Ghidottis' agent and broker were resolved prior to this appeal.

      This is the entire damages calculation.

      Re/Max joined the motion.

      The Ghidottis challenge only the court's finding that they did not properly disclose Darnell as an expert witness. They do not argue that they should have been able to prove their damages through the other two means mentioned in Cook Assocs., Inc. v. Warnick , 664 P.2d 1161, 1166 n.4 (Utah 1983).