State v. Alzaga

2015 UT App 133
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
CRISTIAN A. ALZAGA,
Defendant and Appellant.

Opinion
No. 20120742-CA
Filed May 29, 2015

Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 101401263

Samuel P. Newton, Attorney for Appellant

Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES GREGORY K. ORME and STEPHEN L. ROTH concurred.

VOROS, Judge:

¶1 Cristian A. Alzaga was convicted of murder, aggravated
assault, and aggravated robbery. All the crimes occurred in
connection with a drug deal under a bridge on the Jordan
Parkway. The State claimed that the victims were at the bridge to
sell marijuana; Alzaga claimed they were there to buy heroin.
On appeal Alzaga challenges certain of the trial court’s
evidentiary rulings, its instructions to the jury on self-defense,
and its denial of his motion for a new trial. He also contends that
his trial counsel rendered constitutionally ineffective assistance.
We affirm.
 State v. Alzaga

BACKGROUND1

The Drug Deal

¶2 Hannah and her boyfriend, Mark,2 lived together in a tent
near the Jordan River Parkway Trail in Midvale, Utah. The two
scraped by; each sold marijuana, while Mark received food
stamps and donated his blood plasma.

¶3 In May 2010, one of the couple’s regular customers
contacted Hannah to purchase an ounce of marijuana. Hannah
and Mark agreed to meet the customer for the sale at a spot
where they had met before, on a footbridge by the Jordan River
near 3900 South (the Footbridge). When Mark and Hannah
arrived for the sale, they crossed the Footbridge and spotted the
customer. With him was ‚a bigger guy‛ who acted as a lookout.
Mark also spotted a third man talking on a cell phone and
pacing back and forth on a larger bridge spanning the Jordan
River nearby (the Jordan River Bridge). Mark described this
third man, the defendant, as having spiked black hair, ‚kind of
crown shaped,‛ and wearing a white shirt. Mark did not
immediately connect Alzaga with the customer and the lookout.
However, Mark felt concerned that the lookout had
accompanied the customer to the drug deal; Mark and the
customer ‚had kind of an agreement that you didn’t bring
anybody with you when you came to buy marijuana,‛ because

1. ‚On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.‛ State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d
346 (citation and internal quotation marks omitted).

2. We use pseudonyms to protect the privacy of the victims and
their families.

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 State v. Alzaga

‚anything could happen when you meet new people.‛ But
Hannah felt comfortable because she had known the customer
for ‚*p+retty much her entire life.‛

¶4 Mark and Hannah decided to go ahead with the deal. The
customer asked Mark and Hannah to weigh the marijuana, and
Hannah climbed down onto a ledge under the Footbridge to do
so. The customer stood against a post above Hannah, and the
lookout made ‚sure that nobody was coming while *Hannah+
weighed the marijuana.‛ Alzaga approached, still talking on his
cell phone. When he and the customer argued briefly, Alzaga
pulled what appeared to be a gun and pointed it at the customer.
The customer looked under the Footbridge at Hannah; Alzaga
then pointed the gun at her and said, ‚You give me all your
shit.‛

The Stabbings

¶5 Hannah backed up under the Footbridge. Alzaga jumped
down after her, and Mark followed. Mark saw that Alzaga and
Hannah ‚were kind of close together‛ and saw Hannah jump
back from Alzaga ‚like she was trying to get away from
something.‛ Mark then grabbed Alzaga by the shoulder from
behind. Alzaga wheeled around, pointed the gun at Mark, and
said, ‚You can give me all your shit, too.‛ Mark thought that the
gun looked fake and batted it away from Alzaga.3 But Alzaga
also had a knife. Alzaga slashed at Mark, who jumped back and
yelled at Hannah to run. Hannah walked slowly up the hill and
said that she had been stabbed. Both Alzaga and Mark ran
toward Hannah. Mark then heard the customer yell, ‚Forget it.
It’s done. Let’s go. Let’s go. Let’s go.‛ The customer and the
lookout fled the scene toward 3900 South.

3. Police later found the gun in some brush by the path that
crossed the Footbridge. It was in fact a toy gun.

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¶6 Alzaga reached Hannah before Mark did and began
pulling at her purse. Mark caught up to Hannah and Alzaga and
stepped between them to shield Hannah from Alzaga. Mark told
Hannah to let go of the purse. As Mark and Alzaga ‚struggled
over the purse‛ Alzaga slashed at Mark and struck him in the
eye. Alzaga had wounded both Mark and Hannah; Mark’s eye
was swollen shut, and Hannah told Mark that she could not
breathe. Mark then relinquished the purse to help Hannah, and
Alzaga took off running. Hannah threw away the marijuana she
had in her pocket and lay down on the ground, struggling to
breathe. Mark grabbed Hannah’s phone and dialed 911. Hannah,
eighteen years old, died at the hospital of a stab wound to the
abdomen.

Alzaga’s Version of Events

¶7 Alzaga described quite a different encounter. He
maintained that he did not kill Hannah and that he stabbed
Mark in self-defense. Alzaga testified that he, the customer, and
the lookout agreed to meet Mark and Hannah at the Footbridge
to sell them a large amount—fifty-two grams—of heroin. The
three drove together to the Jordan River Parkway Trail, walked
to the Footbridge, and after meeting up with Mark and Hannah,
Alzaga weighed a plastic-wrapped package of heroin the size of
a tennis ball and worth $6,000. After Alzaga confirmed its
weight, he claimed that Mark suddenly ‚just grab*bed+ the ball
of heroin‛ and handed it to Hannah, who ‚start*ed+ running.‛

¶8 Alzaga then testified that Mark began punching him on
the left side of his face and neck. As Mark assaulted him, Alzaga
observed the customer running across the Footbridge and
‚noticed *the lookout+ chasing after *Hannah+.‛ Alzaga told the
jury that he was ‚high on *e+cstasy‛ and ‚just felt terrified‛ by
Mark’s assault. Alzaga absorbed Mark’s punches for a time but
then started to fall over, and ‚that’s when‛ Alzaga ‚felt the
knife‛ in his pocket. Alzaga then pulled the knife out of his
pocket, and as Mark punched him, he ‚countered back with a

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 State v. Alzaga

right hook‛ and slashed Mark in the eye. Mark backed away
while the lookout returned with Hannah’s purse in hand. The
lookout gave the purse to Alzaga, and both fled the scene.

¶9 Alzaga was convicted of murder, a first-degree felony,
Utah Code Ann. § 76-5-203(3) (LexisNexis Supp. 2010);
aggravated robbery, a first-degree felony, id. § 76-6-302
(LexisNexis 2008); and aggravated assault, a second-degree
felony, id. § 76-5-103. He appeals.

ISSUES

¶10 First, Alzaga contends that the trial court erroneously
admitted Mark’s testimony that Hannah had a life philosophy of
peace and nonviolence and that she consumed no drugs other
than marijuana.

¶11 Second, Alzaga contends that the trial court erroneously
excluded evidence pertaining to the details of Mark’s prior drug
convictions.

¶12 Third, Alzaga contends that the trial court erroneously
admitted a prison recording of a conversation between Alzaga
and his girlfriend during which he made derogatory remarks
about Hannah and did not deny killing her.

¶13 Fourth, Alzaga contends that the trial court erroneously
admitted photographs of the crime scene taken in February 2012
that did not accurately reflect the view of the scene when the
crimes occurred in May 2010.

¶14 Fifth, Alzaga contends that the trial court erroneously
instructed the jury on the standard for self-defense.

¶15 Sixth, Alzaga contends that his trial counsel ineffectively
failed to present expert testimony challenging Mark’s eyewitness
identification of him.

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 State v. Alzaga

¶16 Finally, Alzaga contends that the trial court erroneously
denied his motion for a new trial, which he made on the basis of
newly discovered exculpatory evidence.

ANALYSIS

I. Hannah’s Character for Peacefulness

¶17 Alzaga contends that the trial court ‚abused its discretion
when it admitted evidence of *Hannah’s+ character for
peacefulness and aversion to serious drugs.‛ Alzaga argues that
this evidence was inadmissible character evidence under rules
404 and 405 of the Utah Rules of Evidence. In the alternative,
Alzaga contends that the trial court plainly erred in admitting
the evidence. The State counters that Alzaga inadequately
briefed his plain error claim and that, in any event, he fails to
carry the burden of persuasion because the error, if any, was
neither obvious nor prejudicial.

¶18 ‚Evidence of a person’s character or character trait is not
admissible to prove that on a particular occasion the person
acted in conformity with the character or trait.‛ Utah R. Evid.
404(a)(1). Rule 404(a)(2) sets out exceptions to this general
prohibition that apply to defendants and alleged victims in
criminal cases:

(A) a defendant may offer evidence of the
defendant’s pertinent trait, and if the evidence
is admitted, the prosecutor may offer evidence
to rebut it;
(B) subject to the limitations in Rule 412, a
defendant may offer evidence of an alleged
victim’s pertinent trait, and if the evidence is
admitted, the prosecutor may:
i. offer evidence to rebut it; and

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 State v. Alzaga

ii. offer evidence of the defendant’s same
trait; and
(C) in a homicide case, the prosecutor may offer
evidence of the alleged victim’s trait of
peacefulness to rebut evidence that the victim
was the first aggressor.

Id. R. 404(a)(2). Evidence of a person’s character may be
introduced by opinion or reputation testimony:

When evidence of a person’s character or character
trait is admissible, it may be proved by testimony
about the person’s reputation or by testimony in
the form of an opinion. On cross-examination of
the character witness, the court may allow an
inquiry into relevant specific instances of the
person’s conduct.

Id. R. 405(a).

¶19 At trial, Mark testified that Hannah was ‚just like kind of
a modern-day hippie‛; that she ‚smoked weed, yes, but that’s
the only drug she did‛; and that she did not ‚even want to try
anything else like hallucinogens, nothing else like that.‛ Mark
also testified that Hannah ‚loved the peace sign‛ and that she
believed in the philosophy of ‚PLUR . . . peace, love, unity, and
respect.‛ Mark added that he had a peace-sign tattoo on his
shoulder and that ‚*e+very time *he+ would find something with
a peace sign on it, *he+ would buy it for her.‛

¶20 Alzaga argues that Mark’s testimony violated rule
404(a)(1) because it constituted evidence of Hannah’s character
trait offered to prove that she acted in conformity with that trait.
Alzaga further argues that Mark’s testimony violated rule
404(a)(2) because ‚*Mark+ was the first witness to testify, and . . .
Alzaga’s opening statement could not open the door to the
introduction of positive character evidence.‛ Because opening

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 State v. Alzaga

statements ‚do not constitute evidence and cannot open the door
to character evidence,‛ State v. Leber, 2009 UT 59, ¶ 16, 216 P.3d
964, Alzaga maintains that the trial court erred in admitting
rehabilitative character evidence before Hannah’s character was
attacked. Alzaga further argues that Mark’s testimony violated
rule 405(a) because ‚the State did not offer reputation or opinion
testimony, but rather, specific instances of . . . *Hannah’s+
conduct.‛

¶21 The State responds that Alzaga failed to preserve this
claim in the trial court. To preserve an issue for appeal, ‚the
issue must be presented to the trial court in such a way that the
trial court has an opportunity to rule on that issue.‛ 438 Main St.
v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (citation and
internal quotation marks omitted). ‚*I+f a party makes an
objection at trial based on one ground, this objection does not
preserve for appeal any alterative grounds for objection.‛ State v.
Low, 2008 UT 58, ¶ 17, 192 P.3d 867. Counsel objected to Mark’s
testimony on relevance grounds, but Alzaga does not argue
relevance on appeal.4 He instead argues that his relevance
objection was sufficient to preserve his rule 404 and rule 405
claims and that, in any event, the trial court plainly erred in
admitting the character evidence.

¶22 We agree with the State that Alzaga’s objection on
relevance grounds did not preserve his appellate claim. His
objection did not convey to the trial court that Alzaga believed
the testimony, though relevant, constituted improper character
evidence. Accordingly, we analyze his rule 404 and rule 405
claims under the plain error standard.

4. In fact, the reply brief acknowledges that if, as Mark testified,
Hannah did not use hard drugs, ‚then she was less likely to have
arranged a heroin transaction, as Mr. Alzaga testified.‛

20120742-CA 8 2015 UT App 133
 State v. Alzaga

¶23 To demonstrate plain error, a defendant must establish
that (1) the trial court committed error, (2) the error should have
been obvious to the court, and (3) the error was harmful. State v.
Dunn, 850 P.2d 1201, 1208 (Utah 1993). ‚To establish that the
error should have been obvious to the trial court, [an appellant]
must show that the law governing the error was clear at the time
the alleged error was made.‛ State v. Dean, 2004 UT 63, ¶ 16, 95
P.3d 276; State v. Ross, 951 P.2d 236, 239 (Utah Ct. App. 1997).
Thus, an obvious error is one that contravenes ‚settled appellate
law,‛ Ross, 951 P.2d at 239, or ‚the plain language of the relevant
statute,‛ Low, 2008 UT 58, ¶ 41. An error is prejudicial if ‚absent
the error, there is a reasonable likelihood of a more favorable
outcome for the appellant, or phrased differently, our confidence
in the verdict is undermined.‛ Dunn, 850 P.2d at 1208–09
(footnote omitted).

¶24 Alzaga has not established plain error. First, any possible
error in admitting testimony that Hannah smoked marijuana
was not obvious under rule 404(a)(1). Rule 404(a)(1) declares
evidence ‚of a person’s character or character trait‛ offered ‚to
prove that on a particular occasion the person acted in
conformity with the character or trait‛ inadmissible. Utah R.
Evid. 404(a)(1). Here, we do not think it obvious that testimony
that Hannah ‚smoked weed, yes, but that’s the only drug she
did‛ describes a ‚character trait.‛ And even if it did, the
obviously prohibited use would be to show that Hannah acted in
conformity with this character trait on this occasion. Acting in
conformity with the ‚character trait‛ of smoking marijuana
would be to smoke marijuana. But the State’s theory was not that
Hannah smoked marijuana on this or any other occasion but that
she went to the meeting place to sell marijuana. And it is not
obvious that selling marijuana constitutes acting in conformity
with the ‚character trait‛ of smoking it. See R. Collin Mangrum
& Dee Benson, Mangrum & Benson on Utah Evidence 191–92
(2014–2015 ed.). Accordingly, whether the State did or did not
‚offer evidence of an alleged victim’s pertinent trait‛ under rule
404(a)(2)(B) is of no moment.

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 State v. Alzaga

¶25 Even if admission of the testimony was obvious error,
Alzaga has not shown prejudice. At most, the testimony that
Hannah smoked marijuana corroborated more directly relevant
testimony. Mark testified without objection that he and Hannah
dealt marijuana and that they went to the rendezvous that day to
sell some to the customer. Given this direct evidence that
Hannah and Mark sold marijuana, the admission of additional
evidence that Hannah smoked marijuana, from which the jury
might infer that Hannah also sold marijuana, does not
undermine our confidence in the verdict. See Dunn, 850 P.2d at
1208–09.

¶26 The same is true for testimony that Hannah did not use
other drugs, i.e. heroin. It is far from obvious that not using
heroin is a ‚character trait‛ and that not arranging to buy heroin
constituted acting in conformity with that character trait on this
occasion. Nor has Alzaga demonstrated a reasonable likelihood
of a more favorable trial outcome absent testimony that Hannah
‚smoked weed, yes, but that’s the only drug she did.‛

¶27 Finally, we cannot agree that Mark’s testimony that
Hannah’s ‚philosophy of life was PLUR, . . . peace, love, unity
and respect‛ obviously violated rule 404(a). While this testimony
may well describe a character trait, Alzaga has not shown that
the State offered the testimony to prove that Hannah acted in
conformity with that character trait on a particular occasion.
While the defense argued that Mark attacked Alzaga, no one
claimed that Hannah acted other than peacefully throughout the
encounter.5

5. On appeal, Alzaga does not challenge Mark’s testimony that
he shared Hannah’s philosophy of life. Instead, Alzaga argues
that the trial court abused its discretion ‚when it admitted
evidence of *Hannah’s+ character for peacefulness and aversion
(continued...)

20120742-CA 10 2015 UT App 133
 State v. Alzaga

¶28 In sum, the challenged testimony was not obviously
inadmissible, but even if it had been, we cannot say that this
evidence undermines our confidence in the verdict. See id.

II. Mark’s Prior Drug Convictions

¶29 Alzaga contends that the trial court abused its discretion
by excluding the details of Mark’s prior drug convictions under
rule 609 of the Utah Rules of Evidence.

¶30 On direct examination, Mark admitted to three prior drug
convictions, two for possession and one for possession with
intent to distribute. After the prosecution rested, defense counsel
announced her intention to recall Mark as a witness.
Anticipating that defense counsel would inquire further into the
specifics of Mark’s prior drug convictions—in particular, which
drugs formed the bases for those convictions—the prosecutor
objected to the inquiry as impermissible under rule 609. Because
Mark had ‚not denied or tried to explain away those *drug+
convictions,‛ the prosecutor argued, any inquiry ‚should be
limited to the nature of the crime, the date of the conviction, and
the punishment.‛ Defense counsel countered that she wanted to
explore the specifics of the drug convictions to impeach Mark.

¶31 The trial court sustained the prosecutor’s objection,
reasoning that because Mark never testified that he used only
marijuana, rule 609 prohibited questions related to the details of
his prior drug convictions. Alzaga challenges this ruling on
appeal. We review a trial court’s evidentiary rulings for an abuse
of discretion. State v. Davis, 2013 UT App 228, ¶ 13, 311 P.3d 538.

(