State v. Martinez

2015 UT App 193

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
CHACHI ADRIAN MARTINEZ,
Defendant and Appellant.

Opinion
No. 20130819-CA
Filed August 6, 2015

Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 111906147

Craig L. Pankratz and David M. Corbett, Attorneys
for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee

JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGE
STEPHEN L. ROTH concurred. JUDGE MICHELE M. CHRISTIANSEN
concurred, with opinion.

PEARCE, Judge:

¶1 Chachi Adrian Martinez appeals from his convictions for
aggravated assault and witness tampering. He argues that the
trial court abused its discretion by refusing to strike prior-bad-
acts evidence or declare a mistrial after defense counsel elicited
such evidence from a witness during cross-examination. He also
argues that the State’s evidence was insufficient to support his
conviction for aggravated assault because, in his view, the force
he used was neither intended nor likely to cause serious bodily
injury. We affirm.
 State v. Martinez

BACKGROUND

¶2 We recite the evidence in the light most favorable to the
jury’s verdict and present conflicting evidence as necessary to
understand the issues raised on appeal. State v. Marchet, 2014 UT
App 147, ¶ 2 n.3, 330 P.3d 138.

¶3 Martinez, and his girlfriend A.V., attended a car show
and a party. After Martinez left A.V. alone at the party, she
became upset. The couple began to argue. During the argument,
Martinez slapped A.V.’s left ear, pulled her to the ground by her
hair, and told her to ‚shut the ‘f’ up.‛ They were then asked to
leave.

¶4 As they walked away from the party, Martinez and A.V.
continued to argue. Martinez slapped A.V.’s other ear, leaving
her unable to hear properly from either side. She grabbed his
shirt, breaking the chain of a necklace he was wearing. Martinez
yelled at her about the broken necklace and punched her with a
closed fist, hitting the left side of her jaw. She fell to the ground,
spitting blood. Martinez continued to punch and kick A.V. while
yelling at her about the broken necklace.

¶5 A.V. eventually returned to the house, where some men
attending the party saw her injured face and asked, ‚Did
[Martinez+ do this?‛ She responded that Martinez had. The men
began to chase after Martinez, but A.V. asked them to stop
because she ‚felt bad‛ for him.

¶6 Martinez then called A.V.’s mother, reporting that he and
A.V. had argued, that he had hit her, and that he could not find
her. Later that evening, A.V. found Martinez hiding in a
backyard. He agreed to take her to the hospital. During the drive
to the hospital, Martinez instructed her to report that a group of
girls had ‚jumped‛ her. A.V. recited this version of events to
hospital staff and to a police officer who investigated her
injuries. The officer asked her to fill out a witness statement.

20130819-CA 2 2015 UT App 193
 State v. Martinez

Because she was in pain, A.V. allowed Martinez to fill it out.
A.V. signed the statement without reading it.1

¶7 After leaving the hospital, A.V. went to her mother’s
house and fell asleep. The next day, Martinez knocked on A.V.’s
mother’s bedroom door and asked for A.V.’s medical insurance
card. A.V.’s mother then checked on A.V., who started to explain
her injuries to her mother by saying that ‚she had been jumped
by a bunch of girls.‛ Her mother interrupted A.V., telling her
that ‚*Martinez+ already told me who hit you.‛ Martinez, who
was in the room, said, ‚I told your mom that I hit you.‛

¶8 A.V. then returned to the hospital, where she was
scheduled for surgery to repair her jaw fractures. Surgeons
attached titanium plates to A.V.’s jaw to return her teeth to their
proper positions. A.V. suffers from long-term problems
stemming from the injury.

¶9 After A.V. was released from the hospital, she asked her
mother if she could stay at her mother’s house. Her mother told
A.V. that she could if she broke up with Martinez. A.V. refused,
and the couple went to a hotel. However, shortly after arriving,
they began arguing again. Martinez broke up with A.V. She then
called her mother, who picked her up, took her home, and
encouraged her to call the police. A.V. then filled out a second
witness statement about the post-party incident.

¶10 Before trial, Martinez filed a motion in limine, seeking to
exclude evidence of prior domestic violence against A.V. The
prosecutor stated that he did not ‚expect to make the history of
violence between the two a part of [his] case‛ and that he had

1. In the written statement, A.V. claimed that several girls at the
party who she did not recognize had been ‚talking bad about me
and the way I looked.‛ She claimed that they had confronted
and hit her and that she had blacked out.

20130819-CA 3 2015 UT App 193
 State v. Martinez

warned A.V. and her mother not to testify to that history. The
trial court stated that it was ‚nice‛ of the prosecutor to make
such a stipulation but noted that the court ‚probably would
allow‛ such evidence to the extent that it showed that ‚the same
sort of thing [had] happened to this victim within the last couple
of years.‛ The court also observed that Martinez could still open
the door to the introduction of prior-bad-acts evidence if he
testified and denied assaulting A.V. The trial court did not
further address Martinez’s motion before trial.

¶11 During the course of the trial, the State did not present
prior-bad-acts evidence. However, while cross-examining a
police officer, Martinez’s trial counsel inadvertently elicited such
evidence twice.2 Trial counsel asked the officer how he had
responded after finding out that A.V. had checked into the hotel
with Martinez on the day after the party.

Q. Okay. And did you confront her about that?
A. I did.
Q. And what did she have to say?
A. She broke down, started crying, told me that
. . . *t+here’d been a history of violence with
him and she was afraid of him.

¶12 Trial counsel did not immediately object or move to strike
this testimony. Instead, trial counsel moved on to other
questions. One of the other questions related to A.V.’s post-
attack telephone contacts with Martinez.

Q. Okay. And did you confront her with the
evidence of the phone calls?
A. I did.
Q. And what was her reaction?
A. I confronted her about the phone calls. She
had told me that—she broke down and

2. Martinez is represented by new counsel on appeal.

20130819-CA 4 2015 UT App 193
 State v. Martinez

started crying and told me that she—it was
hard not to talk to—to [Martinez]. She had
told me that they had a history of violence
between her and [Martinez] and, at that
point, also told me she wanted him
prosecuted.

¶13 Trial counsel did not immediately object or move to strike
this testimony either.3 Instead, after the officer and the jury were
excused, trial counsel moved for a mistrial. The trial court
denied the motion, stating that the two ‚mentions of a history of
violence‛ did not necessitate a mistrial.

¶14 The jury convicted Martinez of aggravated assault and
witness tampering, second-degree and third-degree felonies
respectively. Martinez appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Martinez first contends that the prior-bad-acts evidence
was inadmissible and that the trial court should therefore have
declared a mistrial. The decision to grant or deny a mistrial rests
within the sound discretion of the trial court and will not be
disturbed absent an abuse of that discretion. State v. Calliham,
2002 UT 86, ¶ 42, 55 P.3d 573.

¶16 Martinez further contends that the evidence presented to
the jury was insufficient to sustain his conviction for aggravated
assault. He argues that the State was required to present
evidence that he used means or force likely to produce death or
serious bodily injury and that the State failed to do so. ‚Issues

3. Trial counsel later explained that objecting or moving to strike
the testimony in front of the jury would have risked ‚draw*ing+
more attention to it.‛

20130819-CA 5 2015 UT App 193
 State v. Martinez

that are not raised at trial are usually deemed waived.‛ 438 Main
St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801.

¶17 Martinez also contends that his trial counsel should have
asked the trial court to reduce his conviction to simple assault
because the evidence was insufficient to sustain his aggravated-
assault conviction. ‚When a claim of ineffective assistance of
counsel is raised for the first time on appeal, there is no lower
court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as
a matter of law.‛ State v. Beckering, 2015 UT App 53, ¶ 18, 346
P.3d 672 (brackets, citation, and internal quotation marks
omitted).

ANALYSIS

I. Rule 404(b) Evidence

¶18 Martinez contends that the officer’s mentions of a ‚history
of violence‛ were improper under rule 404(b) of the Utah Rules
of Evidence and that the trial court should therefore have
granted Martinez’s motion for a mistrial.

¶19 After Martinez moved for a mistrial, the court noted, ‚As
I said when this started, if they are [instances] that occurred with
this victim, they’re incidences of violence and they happened
within a couple of years’ time, I am likely to allow them to be
admitted as 404(b) evidence in order to explain . . . the victim’s
behavior in not reporting this afterwards.‛4 However, the trial

4. Martinez argues that the ‚history of violence‛ testimony did
not explain A.V.’s ‚initial, inconsistent statement to police,‛
because A.V. did not claim that ‚her initial statement derived
from fear stemming from historical incidents.‛ This argument
assumes that the only possible inference from a history of
violence is residual fear. However, we have recognized that it is
(continued…)

20130819-CA 6 2015 UT App 193
 State v. Martinez

court did not directly determine whether the specific prior-bad-
acts evidence elicited was admissible. Instead, the trial court
agreed with the State that the challenged statements were brief
and nonspecific, stating, ‚I do think the mention of the prior
domestic violence was brief . . . .‛ The court concluded, ‚I’m not
going to declare a mistrial at this time.‛

¶20 ‚A trial court judge is in an advantaged position to
determine the impact of courtroom events on the total
proceedings.‛ State v. Dalton, 2014 UT App 68, ¶ 34, 331 P.3d
1110 (citation and internal quotation marks omitted). We will not
reverse a trial court’s denial of a motion for mistrial unless the
trial court’s determination is ‚plainly wrong in that the incident
so likely influenced the jury that the defendant cannot be said to

(…continued)
not unusual for victims of persistent domestic violence to delay
reporting or to recant their earlier statements. See, e.g., State v.
Valdez, 2007 UT App 112U, paras. 2–3 (noting an expert’s
testimony that Battered Woman Syndrome ‚is a subcategory of
Post Traumatic Stress Disorder,‛ ‚involves a ‘cycle of violence’
and a ‘pattern of symptoms that women who are in abusive
relationships have been through,’‛ and ‚can help explain why
victims recant their testimony‛); see also Cynthia L. Barnes,
Annotation, Admissibility of Expert Testimony Concerning
Domestic-Violence Syndromes to Assist Jury in Evaluating Victim’s
Testimony or Behavior, 57 A.L.R. 5th 315, § 2 (1998) (collecting
cases and noting that victims in abusive relationships may be
‚reluctant to report the battering‛ due to economic dependence,
may recant their testimony, and may give conflicting accounts of
the source of their injuries); Njeri M. Rutledge, Turning A Blind
Eye: Perjury in Domestic Violence Cases, 39 N.M. L. Rev. 149, 149
(2009) (‚False statements in domestic violence cases are a
significant problem and considered an epidemic with an
estimated 40 to 90 percent of domestic violence victims
recanting.‛).

20130819-CA 7 2015 UT App 193
 State v. Martinez

have had a fair trial.‛ Id. (citation and internal quotation marks
omitted). Thus, ‚in order to obtain reversal, the defendant must
make some showing that the verdict was substantially
influenced by the challenged testimony.‛ State v. Milligan, 2012
UT App 47, ¶ 7, 287 P.3d 1 (citation and internal quotation marks
omitted).

¶21 Martinez asserts that ‚*w+hen the jury heard that there
was a ‘history of violence’ between *A.V. and Martinez+, it
became impossible for the jury to believe that *A.V.’s+ first
account of what happened to her jaw was true.‛ He argues that
the jury thus ‚concluded that *Martinez+ was a girlfriend beater
who should be convicted no matter what.‛ The State responds
that the two references to a ‚history of violence‛ were brief, did
not include any details, and were not referred to in closing
arguments.

¶22 Brevity, vagueness, and absence from closing arguments
are among the factors that militate in favor of a finding that
improperly admitted evidence did not substantially influence
the verdict. See State v. Allen, 2005 UT 11, ¶ 43, 108 P.3d 730
(holding that a mistrial was not necessary, because a witness’s
improper statement that the defendant had been asked to take a
lie detector test was brief, vague, and not intentionally elicited,
and because no further reference was made to it); State v.
Decorso, 1999 UT 57, ¶¶ 38–39, 993 P.2d 837 (holding that a
mistrial was not necessary, because a witness’s reference to the
defendant’s ‚other crimes‛ was vague and insignificant); State v.
Case, 547 P.2d 221, 223 (Utah 1976) (holding that a mistrial was
not necessary where a witness twice mentioned that the
defendant had been incarcerated for other crimes but neither the
court nor either counsel further referred to that fact).

¶23 We agree with the State that the ‚history of violence‛
statements Martinez’s trial counsel elicited were both brief and

20130819-CA 8 2015 UT App 193
 State v. Martinez

vague. The entirety of the prior-bad-acts evidence consumed
only four lines out of more than 175 pages transcribing two days
of trial.5 That testimony did not provide any details such as the
nature of the violence or whether the police had previously been
involved. Nor did either party refer to the ‚history of violence‛
testimony in closing arguments.

¶24 In contrast, the overwhelming majority of the evidence
concerned the charged incident. A.V. testified that Martinez had
hit her jaw and broken it. She also testified that Martinez had
continued to hit her after she fell to the ground. A.V. testified
that when she returned to the party and was asked whether
Martinez had caused her injuries, she replied that he had,
motivating a number of partygoers to chase after Martinez
before A.V. stopped them. A.V.’s mother testified that Martinez
had twice admitted to hitting A.V., once over the phone
immediately after the incident and once when A.V. began
explaining her injuries to her mother as the result of being
‚jumped by a bunch of girls.‛

¶25 On appeal, Martinez has failed to demonstrate that the
challenged testimony substantially influenced the verdict. See
State v. Milligan, 2012 UT App 47, ¶ 7, 287 P.3d 1. Accordingly,
we cannot agree that ‚the trial court’s determination *was+
plainly wrong.‛ State v. Dalton, 2014 UT App 68, ¶ 34, 331 P.3d
1110 (citation and internal quotation marks omitted). We
therefore see no abuse of discretion in the trial court’s
determination that the ‚history of violence‛ statements did not
warrant a mistrial.

5. We recognize that the trial court denied Martinez’s mistrial
motion after the first day of trial. Accordingly, the court was
considering the four lines of testimony against 100 pages of
transcript, rather than against the total of 175 pages ultimately
heard by the jury.

20130819-CA 9 2015 UT App 193
 State v. Martinez

II. Sufficiency of the Evidence

¶26 Martinez next contends that ‚there was insufficient
evidence to convict *him+ of aggravated assault.‛ He notes that,
to secure an aggravated assault conviction, the State was
required to prove that he used ‚means or force likely to produce
death or serious bodily injury.‛ See Utah Code Ann. § 76-5-103
(LexisNexis 2012). He further notes that ‚a victim’s injury does
not determine the degree of an assault‛ and that it is the
defendant’s conduct, not the injury the victim actually suffers,
which controls that determination. He asserts that the only
evidence of the amount of force he used was the injuries suffered
by A.V. Consequently, he argues, the evidence was insufficient
to convict him of aggravated assault rather than simple assault.

¶27 We first consider whether this issue was properly
preserved for appeal. ‚Issues that are not raised at trial are
usually deemed waived.‛ 438 Main St. v. Easy Heat, Inc., 2004 UT
72, ¶ 51, 99 P.3d 801. An issue is preserved for appeal only if it
was presented to the trial court in such a way that the trial court
had an opportunity to rule on it. Wohnoutka v. Kelley, 2014 UT
App 154, ¶ 3, 330 P.3d 762. ‚The appellant must present the legal
basis for [a] claim to the trial court, not merely the underlying
facts or a tangentially related claim.‛ State v. Kennedy, 2015 UT
App 152, ¶ 21.

¶28 Martinez argues that his claim was preserved when he
moved for a directed verdict:

[The trial court]: All right. The State rests. Does
[the] defense have a motion?

[Trial counsel]: Your Honor, we’d make a motion
for a directed verdict and just simply argue that the
State has not met its burden on either of the two
charges.

20130819-CA 10 2015 UT App 193
 State v. Martinez

[The trial court]: Okay. I think there has been
successful evidence and I’ll deny the motion to
dismiss.

¶29 This brief exchange was inadequate to preserve
Martinez’s claim on appeal. Although the motion sought the
same ruling—that the evidence was insufficient—it did not
present the legal basis that Martinez now asserts on appeal. The
argument raised on appeal concerns the line between direct and
inferential evidence of the aggravating factor for one of the
charges. In contrast, the directed-verdict motion simply asserted
the more general proposition that the evidence presented for
both charges was deficient in some unspecified way. We cannot
conclude that the legal basis for Martinez’s appellate claim was
‚presented to the trial court in such a way that the trial court had
an opportunity to rule on it.‛ Wohnoutka, 2014 UT App 154, ¶ 4
(brackets, citation, and internal quotation marks omitted); see also
Kennedy, 2015 UT App 152, ¶ 21.

¶30 Martinez also argues that the ineffective-assistance-of-
counsel exception to our preservation rule applies. ‚To succeed
on a claim of ineffective assistance of counsel, a defendant must
show that trial counsel’s performance was deficient and that the
defendant was prejudiced thereby.‛ State v. Hards, 2015 UT App
42, ¶ 18, 345 P.3d 769 (citing Strickland v. Washington, 466 U.S.
668, 687 (1984)).

¶31 According to Martinez, his trial counsel performed
deficiently ‚by failing to ask the trial court to modify his
conviction to simple assault.‛ He asserts that the conduct
underlying his conviction was not likely to produce death or
serious bodily injury:

Viewing the evidence in the light most favorable to
the verdict, [Martinez] slapped [A.V.] with an open
hand, pulled her to the ground by her hair, slapped
her again with an open hand, punched her in the
jaw with a closed fist, and hit and kicked her

20130819-CA 11 2015 UT App 193
 State v. Martinez

several times while she was on the ground. None
of this conduct was sufficient to convict [Martinez]
of aggravated assault.

¶32 We disagree. Not all punches are created equal. Yet
Martinez’s argument assumes that every punch is the same, no
matter the circumstances. So too for every slap and every kick.
But this is plainly not true. Because the force behind each blow
differs, a jury considering an aggravated assault charge may
infer from other evidence how much force a defendant actually
used and whether that force was likely to cause serious bodily
injury under the particular facts of the case. As the State phrases
it, ‚Whether force is likely to cause serious bodily injury is
quintessentially a jury question.‛ (Citing People v. Sargent, 970
P.2d 409, 419 (Cal. 1999) (‚Numerous cases have held that
whether the force used by the defendant was likely to produce
great bodily injury is a question for the trier of fact to decide.‛).)
And the extent and type of injuries the victim suffered are
among the types of evidence probative of that question. Cf. State
v. Leleae, 1999 UT App 368, ¶ 20, 993 P.2d 232 (concluding that
whether a broken jaw and the attendant difficulties it caused
amounted to ‚serious bodily injury‛ was a determination
‚properly put before the jury to decide‛). That a victim has
suffered a serious bodily injury does not by itself establish that
the defendant used force likely to cause that injury. But it is
within the province of the factfinder to infer from all of the
evidence—including the victim’s injuries—that a defendant used
such force.

¶33 It follows that a motion asking the trial court to modify
Martinez’s conviction from aggravated assault to simple assault
would have been futile because the inference the jury reached—
that Martinez used force likely to produce death or serious
bodily injury—was a reasonable one in light of the evidence
presented. Because ‚counsel’s performance at trial is not
deficient if counsel refrains from making futile objections,
motions, or requests,‛ we conclude that Martinez has not

20130819-CA 12 2015 UT App 193
 State v. Martinez

established the deficient-performance element of his ineffective-
assistance-of-counsel claim. See Layton City v. Carr, 2014 UT App
227, ¶ 19, 336 P.3d 587 (citation and internal quotation marks
omitted).

CONCLUSION

¶34 We affirm the trial court’s decision not to declare a
mistrial, because Martinez has not shown that the trial court
abused its discretion in determining that the prior-bad-acts
evidence did not prejudice Martinez’s defense. Martinez did not
preserve his contention that the evidence of the amount of force
he used was insufficient to sustain his conviction. Martinez has
also failed to demonstrate that his counsel performed deficiently
for neglecting to request a modification of his conviction on that
basis.

¶35 Affirmed.

CHRISTIANSEN, Judge (concurring):

¶36 I agree with the majority that given the evidence
presented in this case, the officer’s statements referencing a
‚history of violence‛ did not affect the outcome of Martinez’s
trial. I therefore concur fully in the majority opinion.

¶37 However, I write separately to note that this type of
evidence should generally be admissible in cases involving
domestic violence. Evidence of prior domestic violence is often
helpful to explain the behavior of victims in the wake of a
domestic-violence incident. See supra note 4. In my view,
introducing this type of evidence to explain a domestic-violence
victim’s behavior is therefore a proper noncharacter purpose
pursuant to rule 404(b).

20130819-CA 13 2015 UT App 193
 State v. Martinez

¶38 Thus, so long as the trial court undertakes the scrupulous
examination prescribed by State v. Lucero, 2014 UT 15, 328 P.3d
841, I believe evidence of a history of violence can be properly
placed before the jury.

20130819-CA 14 2015 UT App 193