IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20100626‐CA
)
v. ) FILED
) (July 6, 2012)
Jose Hector de la Cruz‐Diaz, )
) 2012 UT App 179
Defendant and Appellant. )
‐‐‐‐‐
Fourth District, Provo Department, 091400620
The Honorable David N. Mortensen
Attorneys: Ann P. Boyle and Michael D. Esplin, Provo, for Appellant
Mark L. Shurtleff and Andrew F. Peterson, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges Orme, Roth, and Christiansen.
CHRISTIANSEN, Judge:
¶1 Defendant Jose Hector de la Cruz‐Diaz appeals his jury convictions of two counts
of sodomy upon a child, first degree felonies. See generally Utah Code Ann. § 76‐5‐403.1
(2008). He raises several claims of ineffective assistance of counsel. We affirm.
¶2 “An ineffective assistance of counsel claim raised for the first time on appeal
presents a question of law.” State v. Perry, 2009 UT App 51, ¶ 9, 204 P.3d 880 (internal
quotation marks omitted). To prevail on an ineffective assistance claim, “the defendant
bears the heavy burden of satisfying both of the following prongs: ‘First, the defendant
must show that counsel’s performance was deficient,’” State v. Lenkart, 2011 UT 27, ¶ 25,
262 P.3d 1 (quoting State v. Templin, 805 P.2d 182, 186 (Utah 1990)); and “‘[s]econd, the
defendant must show that the deficient performance prejudiced the [outcome of his
case],’” id. (second alteration in original) (quoting Strickland v. Washington, 466 U.S. 668,
687 (1984)).
¶3 De la Cruz‐Diaz first claims that his trial counsel was ineffective because he
failed to properly investigate and prepare the case. De la Cruz‐Diaz maintains that, had
his counsel reviewed the victim’s medical records and the Children’s Justice Center’s
(CJC) evaluation, he would not have improperly promised the jury, in opening
statements, that de la Cruz‐Diaz’s innocence would be demonstrated by a lack of
physical evidence. More specifically, he asserts that counsel should not have assured
the jury that the State’s expert witness would testify that child sexual abuse cases
typically present physical manifestations. De la Cruz‐Diaz cites State v. Lenkart, 2011 UT
27, 262 P.3d 1, to support his claim that counsel’s failure to adequately investigate the
evidence and prepare the case constituted deficient performance. See id. ¶¶ 36, 44
(concluding that counsel’s failure to adequately investigate and present exculpatory
evidence was deficient and that “there is a reasonable probability that the outcome of
the trial would have been different” had the exculpatory evidence been presented).
¶4 “In establishing both deficient performance and prejudice, the ‘defendant bears
the burden of assuring [that] the record is adequate.’” Perry, 2009 UT App 51, ¶ 13
(quoting State v. Litherland, 2000 UT 76, ¶ 16, 12 P.3d 92). And where the record is
inadequate as to either prong, we construe any deficiencies “‘in favor of a finding that
counsel performed effectively.’” Id. (quoting Litherland, 2000 UT 76, ¶ 17). De la Cruz‐
Diaz does not point us to any place in the record that demonstrates where counsel failed
to adequately investigate or review the medical records and CJC evaluation.
Significantly, in his motion for remand pursuant to rule 23B of the Utah Rules of
Appellate Procedure, de la Cruz‐Diaz did not claim that counsel failed to properly
investigate and prepare the case. See Utah R. App. P. 23B(b) (“The motion shall include
or be accompanied by affidavits alleging facts not fully appearing in the record on
appeal that show the claimed deficient performance of the attorney.”); State v. Johnston,
2000 UT App 290, ¶ 8, 13 P.3d 175 (“[R]ule [23B] is a means to supplement the record
with facts now known, even though not previously elicited in the record.”). As a result
20100626‐CA 2
of the inadequate record, we presume that counsel performed effectively.1 See
Litherland, 2000 UT 76, ¶¶ 16‐17; Perry, 2009 UT App 51, ¶ 13.
¶5 De la Cruz‐Diaz next argues that his trial counsel performed ineffectively when
he failed to consult with and call an expert witness to testify about “the scientific
research [pertaining to] . . . the dangers of leading interviews or the susceptibility of
young children to suggestion which could have explained why [the victim] would
testify that he was abused by de la Cruz‐Diaz.” De la Cruz‐Diaz complains that a nurse
who interviewed the victim at the hospital “used potentially coercive investigative
questioning and techniques . . . [that could have] potentially induced false or faulty
memories . . . in [the victim’s] mind by asking him if de la Cruz‐Diaz ‘placed his penis
in the butt.’” An expert witness, he argues, would have given the jury the information
it needed to reach a reliable verdict.
¶6 De la Cruz‐Diaz, however, fails to provide support in the record for his claim
that counsel did not consult with an expert. We previously denied de la Cruz‐Diaz’s
motion for remand on this claim, pursuant to rule 23B of the Utah Rules of Appellate
Procedure, stating, “[T]here is no support for . . . [de la Cruz‐Diaz’s] allegation” “that
trial counsel failed to investigate the possibility of calling an expert witness” because
“[t]rial counsel did not provide an affidavit regarding the scope of his investigation or
trial choices. As a result, [de la Cruz‐Diaz’s] motion is not sufficiently supported to
permit review.” On appeal, de la Cruz‐Diaz does not challenge our denial of his rule
23B motion. As explained above, we presume that counsel performed effectively where
the record does not demonstrate otherwise. See Litherland, 2000 UT 76, ¶¶ 16‐17; Perry,
2009 UT App 51, ¶ 13. Therefore, we are unwilling to conclude that counsel performed
ineffectively by allegedly failing to call and consult with an expert witness.
1
De la Cruz‐Diaz also fails to point to any evidence of prejudice and instead
merely states in one sentence that counsel’s alleged deficiencies “prejudiced [him] as he
was unable to present an adequate defense to the jury.” We decline to address any
issue that has been inadequately briefed. “Implicitly, rule 24(a)(9) [of the Utah Rules of
Civil Procedure] requires not just bald citation to authority but development of that
authority and reasoned analysis based on that authority. . . . [T]his court is not a
depository in which the appealing party may dump the burden of argument and
research.” State v. Thomas, 961 P.2d 299, 305 (Utah 1998) (internal quotation marks
omitted); see also Utah R. App. P. 24(a)(9) (requiring an appellant’s “argument [to]
contain the contentions and reasons . . . with respect to the issues presented”).
20100626‐CA 3
¶7 Even if we assumed that counsel’s performance was deficient by not calling an
expert witness to rebut the State’s case, de la Cruz‐Diaz has not convinced us that
“counsel’s errors ‘actually had an adverse effect on the defense’ and that ‘there is a
reasonable probability that, but for counselʹs unprofessional errors, the result of the
proceeding would have been different.’” See State v. Santana‐Ruiz, 2007 UT 59, ¶ 20, 167
P.3d 1038 (quoting Strickland v. Washington, 466 U.S. 668, 693‐94 (1984)). De la Cruz‐
Diaz claims that his counsel’s failure to call an expert witness impacted the verdict
because “[t]he failure to have the evidence reviewed by a defense expert deprived the
jury of key information needed for them to make a reliable determination of the facts
and resulted in an unreliable verdict.” However, during his CJC interview and through
his own testimony at trial, the victim testified about instances of abuse in far greater
detail than could have been suggested to him in the form of leading questions by the
nurse. Essentially, de la Cruz‐Diaz requests that we speculate as to the effect a rebuttal
witness would have had on the jury. “[P]roof of ineffective assistance of counsel cannot
be a speculative matter but must be a demonstrable reality.” Fernandez v. Cook, 870 P.2d
870, 877 (Utah 1993). De la Cruz‐Diaz’s ineffective assistance claim thus fails on this
ground.
¶8 Next, de la Cruz‐Diaz claims that his trial counsel performed ineffectively by
failing to require the State to prove that de la Cruz‐Diaz was the requisite age for
purposes of the district court’s jurisdiction, i.e., by proving that he committed the
crimes as an adult. At trial, de la Cruz‐Diaz testified that he was born in January of
1991, but the criminal information states that he was born in January of 1990. De la
Cruz‐Diaz also testified at trial that he could not remember whether he told the court at
his arraignment that he was born in 1990 or 1991. However, we do not consider this
evidence because the transcript of the arraignment is not part of the record on appeal.
The record is also devoid of any evidence that would confirm his age. Thus, de la Cruz‐
Diaz fails to demonstrate that either the State or his counsel should have known that his
date of birth was possibly one year later than as stated in the information.2 Because the
2
Furthermore, de la Cruz‐Diaz can do little more than speculate that the abuse
did not occur after he turned eighteen. If de la Cruz‐Diaz was in fact born in January of
1991, then he committed the abuse during a period of at least a few weeks after he
turned eighteen in January of 2009, before the victim and his family moved to a
different apartment. The victim testified that the Defendant had abused him “[a]lmost
every day” up until the time his family moved into a different apartment, and the
(continued...)
20100626‐CA 4
record is inadequate, we are unable to evaluate whether counsel was deficient in failing
to pursue a challenge to the State’s claim that de la Cruz‐Diaz was eighteen years of age
or older at the time he committed the crimes, and we therefore assume that counsel
performed competently. See Litherland, 2000 UT 76, ¶ 17 (“Where the record appears
inadequate in any fashion, ambiguities or deficiencies resulting therefrom simply will
be construed in favor of a finding that counsel performed effectively.”).
¶9 De la Cruz‐Diaz also argues that his trial counsel performed deficiently when he
failed to object to certain out‐of‐court statements of the victim admitted through the
State’s direct examination of two nurses, which, he maintains, bolstered the victim’s
credibility. De la Cruz‐Diaz specifically argues that, pursuant to rule 801(d)(1)(B) of the
Utah Rules of Evidence, the nurses should not have been permitted to testify about the
victim’s prior statements before the victim had been cross‐examined about those
statements.3
¶10 Even assuming that those testimonies were inadmissible, in order to demonstrate
that his counsel’s performance was deficient, de la Cruz‐Diaz “must identify specific
‘acts or omissions’ which, under the circumstances, ‘show that counsel’s representation
fell below an objective standard of reasonableness.’” State v. Lenkart, 2011 UT 27, ¶ 27,
262 P.3d 1 (quoting Strickland, 466 U.S. at 690). “To determine whether a defendant has
met this substantial burden, we ‘must “eliminate the distorting effects of hindsight . . .
and . . . evaluate the conduct [complained of] from counsel’s perspective at the time [it
occurred].”’” State v. Charles, 2011 UT App 291, ¶ 29, 263 P.3d 469 (alterations and
omissions in original) (quoting Menzies v. Galetka, 2006 UT 81, ¶ 89, 150 P.3d 480
(quoting Strickland, 466 U.S. at 688)), cert. denied, 272 P.3d 168 (Utah 2012). Therefore,
“so long as ‘a rational basis for counsel’s performance can be articulated, we will
assume counsel acted competently,’” and “[b]efore we will reverse a conviction based
on ineffective assistance of counsel, we must be persuaded that there was no
2
(...continued)
victim’s mother testified that the family had moved to a different apartment around
mid‐February 2009.
3
De la Cruz‐Diaz also argues that the victim’s out‐of‐court statements were
excludable under rule 803(4) of the Utah Rules of Evidence because, rather than being
“for the purposes of medical diagnoses or treatment,” they were “testimonial in
nature.” See generally Utah R. Evid. 803(4) (providing the hearsay exception for a
“statement made for medical diagnosis or treatment”).
20100626‐CA 5
conceivable tactical basis for counsel’s actions.” Id. (quoting State v. King, 2010 UT App
396, ¶ 31, 248 P.3d 984).
¶11 The State has articulated a rational basis for counsel’s failure to object to any
potentially inadmissible statements from the two nurses. Both nurses’ testimony
permitted counsel, in his cross‐examinations and in his closing argument, to highlight
the inconsistencies of the victim’s allegations, most notably how often the abuse
occurred and how the victim’s description of the abuse differed from the medical
findings. The State has persuaded us that counsel made a tactical decision to allow the
nurses’ testimony so that counsel could later draw out the inconsistencies in the victim’s
allegations. We accordingly determine that counsel’s strategy meets an objective
standard of reasonableness.
¶12 Last, de la Cruz‐Diaz claims that the combination of errors in this case “was so
harmful that [his] conviction should be reversed under the cumulative error doctrine.”
“Because [de la Cruz‐Diaz] has failed to establish any errors of counsel that prejudiced
his right to a fair trial, the doctrine of cumulative error does not apply.” See Parsons v.
Barnes, 871 P.2d 516, 530 (Utah 1994).
¶13 Affirmed.
____________________________________
Michele M. Christiansen, Judge
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¶14 WE CONCUR:
____________________________________
Gregory K. Orme, Judge
____________________________________
Stephen L. Roth, Judge
20100626‐CA 6