2016 UT App 234
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ABELARDO CRUZ,
Appellant.
Opinion
No. 20140994-CA
Filed December 1, 2016
Eighth District Court, Vernal Department
The Honorable Clark A. McClellan
No. 131800746
Jeremy M. Delicino, Hakeem Ishola, and Carlos
Navarro, Attorneys for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES KATE A. TOOMEY and JILL M. POHLMAN concurred.
VOROS, Judge:
¶1 Abelardo Cruz appeals his conviction for two counts of
sodomy upon a child, a first degree felony. We affirm.
BACKGROUND
¶2 Cruz resided with Mother and her six-year-old daughter
(Child). On November 9, 2013 Cruz returned home on his lunch
break and went upstairs to ‚get some rest‛ in the bedroom.
Child also went upstairs. Later, Mother walked upstairs ‚very
softly‛ to get her phone. When Mother opened the bedroom
door, Cruz was lying on the bed, his pants were ‚wide open,‛
State v. Cruz
‚unbuttoned, and the zipper was down,‛ and he looked scared.
Child was lying on the bed next to Cruz ‚near his hips.‛
¶3 Mother took Child into the adjacent bathroom and asked
her what had happened. Child appeared shaky and pale and
initially responded that nothing had happened. When Mother
asked again, Child responded that Cruz ‚put his tito in *her+
mouth.‛1 Although Cruz denied the incident, Mother left the
family home the following week and moved with her children to
another city.
¶4 Mother took Child to a hospital to determine if Child
sustained any injuries from the November 9 incident. The
examining doctor found no sign of injury. After examining
Child, the hospital called the police to report allegations of
sexual abuse.
¶5 A police detective interviewed Child at a Children’s
Justice Center (the first CJC interview). The detective conducted
the interview in both English and Spanish. During the interview,
Child told the detective that on the day of the alleged abuse,
Child followed Cruz upstairs to the bedroom. Child explained
that once she entered the room, Cruz put his hand on the door,
and ‚he didn’t let [her] out.‛ Child told police that Cruz
unzipped his pants, that she ‚was trying to get out,‛ and that
Cruz then ‚did something bad.‛ The detective asked Child why
Cruz wouldn’t let her out of the room; she responded, ‚I didn’t
want to do it, but he made me do it. He made me put my mouth
on his [tito].‛2 Later in the interview, Child repeated that Cruz
‚put his tito in my mouth.‛
1. At trial, Mother explained that ‚tito‛ is a ‚family word for
penis.‛ Child explained in her interview at the Children’s Justice
Center that, to her, ‚tito‛ means ‚nuts.‛
2. This portion of the interview was conducted in Spanish;
translators translated ‚tito‛ as ‚weewee.‛
20140994-CA 2 2016 UT App 234
State v. Cruz
¶6 The following week a police officer conducted a second
interview with Child at a separate Children’s Justice Center (the
second CJC interview). The officer conducted the interview
mainly in Spanish. In the interview, Child explained that Cruz
‚put [her] up on the bed . . . on [her] knees‛ while his pants were
unzipped. Child told the officer that Cruz ‚took his tito out‛ and
told her not to tell anybody and ‚not to bite his tito.‛ Child
explained that Cruz directed her to suck his penis ‚like a
popsicle.‛ She reiterated that Cruz ‚put his tito in my mouth‛
and then her mother ‚walked in the door and she saw.‛
¶7 Before trial, the State moved for the admission of out-of-
court statements by Child for presentation to the jury, and that
the testimony of Child at trial be taken outside of the courtroom
setting. The State sought to admit only the interview from the
second CJC interview. Cruz opposed the State’s motion and
argued in the alternative that the court should show both
interviews to the jury. The trial court ruled that the testimony
was sufficiently reliable and trustworthy under rule 15.5 of the
Utah Rules of Criminal Procedure and admitted both interviews
into evidence. The State requested that the jury be allowed to
take the videotaped interviews into the jury room during
deliberations. Cruz objected, but the court allowed the video
recordings into the jury room.
¶8 At trial, the jury heard both interviews with concurrent
translation of the Spanish portions. In the first CJC interview the
detective asked Child whether the alleged abuse happened ‚one
time or more than one time,‛ and Child responded that it had
happened before ‚when *her+ mom would work.‛ When the
detective asked ‚Every time?‛ Child provided a nonverbal
response. The State requested that the record reflect ‚that when
he asks the question ‘every time,’ the nonverbal answer in the
video is a nod, an affirmative nod.‛ The court granted the State’s
request and ‚indicate*d+ for the record that the child moved her
head up and down.‛ When the detective asked if anything else
happened, the court paused the video and stated, ‚[W]e need to
reflect what happened.‛ At this point, Cruz objected and
20140994-CA 3 2016 UT App 234
State v. Cruz
requested a hearing outside of the presence of the jury. The court
finished playing the interview and excused the jury.
¶9 Cruz objected to the State’s motion on the ground that
‚the jury could see for themselves if *there was+ nodding.‛ After
the State presented its next witness, but before the court played
the second CJC interview, the court instructed the jury not to
consider its earlier statement about the head nod. The court
stated that it did not ‚want *the jury+ to consider *the court’s+
statement about the child moving her head up and down for any
purpose.‛ The court instructed the jury to ‚evaluate for *itself+
whether or not the child did anything and what purpose you are
going to apply if any to her conduct in response to that
question . . . . Consider only what you saw on the video.‛ Cruz
cross-examined Child after the court played both interviews.
¶10 After the jury had deliberated for about 18 hours, the trial
court gave a modified Allen instruction at the joint request of
defense counsel and the State. See State v. Ginter, 2013 UT App
92, ¶ 4 n.2, 300 P.3d 1278 (defining an Allen instruction as a
supplemental jury instructions to help a deadlocked jury reach a
unanimous verdict). The trial court then asked the jury whether
there was ‚any reasonable likelihood that continued deliberation
[would] result in a unanimous verdict on any counts that you
have not yet as a group been able to agree upon.‛ The court
asked the jury to return a response to the question ‚in a
relatively short period of time.‛ Thirty minutes later, the jury
returned and informed the court that it had reached a
unanimous verdict on some counts and that further
deliberations would not be productive on the others. The jury
convicted Cruz of two counts of sodomy on a child and
aggravated kidnapping. It reached no verdict on four of eight
counts and acquitted Cruz on one count.3
3. After trial, Cruz’s conviction for aggravated kidnapping
merged with his two counts of sodomy on a child.
20140994-CA 4 2016 UT App 234
State v. Cruz
ISSUES
¶11 Cruz raises five issues on appeal. First, he contends that
the trial court erred when it allowed the Children’s Justice
Center video recordings into the jury room during deliberations.
¶12 Second, Cruz contends that the trial court erred by
instructing the jury to assume that a non-verbal cue Child made
in the first CJC interview constituted an affirmative response.
¶13 Third, Cruz contends that the trial court erred in granting
the joint request of Cruz and the State to give the jury a modified
Allen charge after the jury deliberated for over 18 hours.
¶14 Fourth, Cruz contends that the State presented
insufficient evidence to convict Cruz of sodomy on a child.
¶15 Fifth, Cruz contends that the cumulative error doctrine
requires reversal.
ANALYSIS
I. CJC Video Recordings
¶16 Cruz ‚makes no wholesale constitutional attack on the
admission of *Child’s+ videotaped interviews.‛ Rather, he
‚primarily objects to . . . the district court’s determination that
*Child’s+ uncross-examined hearsay testimony in the videotapes
was so reliable and trustworthy that it should also be provided
to the jury in deliberation.‛ Cruz’s challenge to the video
recordings comprises three subpoints: (1) Child’s statements
were not reliable and trustworthy under rule 15.5 of the Utah
Rules of Criminal Procedure; (2) he could not cross-examine
Child until trial, over a year after the recorded interviews; and
(3) due to the interviews’ unreliability and Cruz’s inability to
cross-examine Child, the video recordings should not have
followed the jury into deliberations. Whether the trial court
correctly admitted the videotaped interviews into evidence
20140994-CA 5 2016 UT App 234
State v. Cruz
pursuant to rule 15.5 is a question of law that we review for
correctness. State v. Snyder, 932 P.2d 120, 125 (Utah Ct. App.
1997).
A. Reliability of Child’s Testimony
¶17 Under rule 15.5 of the Utah Rules of Criminal Procedure,
an oral statement of a child or other witness younger than 14
years of age that was recorded before charges were filed, ‚upon
motion and for good cause shown,‛ is admissible in court if
eight enumerated conditions are met. Utah R. Crim. P. 15.5(a).
One of these conditions requires the court to view the recording
and determine ‚that it is sufficiently reliable and trustworthy
and that the interest of justice will best be served by admission
of the statement into evidence.‛ Id. R. 15.5(a)(8).
¶18 On appeal, Cruz contends that ‚the district court’s
findings on the reliability and trustworthiness of the videotapes
are truncated and should be reversed for clear error.‛ He
maintains that several factors weighed against reliability, such as
Child’s age and maturity; the ‚nature and duration of [the]
abuse,‛ including Child’s exposure to adult sexual conduct in
the home; lack of detail; and evidence of ‚coaching.‛
¶19 The State responds that in the trial court, Cruz invited the
error he now alleges on appeal, that Cruz fails to marshal the
evidence supporting the trial court’s determination, and that in
any event the trial court’s ruling finds support in the evidence.
¶20 Our supreme court held in State v. Winfield that ‚under
the doctrine of invited error, we have declined to engage in even
plain error review when counsel, either by statement or act,
affirmatively represented to the [trial] court that he or she had
no objection to the [proceedings+.‛ 2006 UT 4, ¶ 14, 128 P.3d 1171
(alterations in original) (citation and internal quotation marks
omitted); accord State v. Pinder, 2005 UT 15, ¶ 62, 114 P.3d 551;
State v. Geukgeuzian, 2004 UT 16, ¶ 9, 86 P.3d 742. The court
added a gloss to that rule in State v. McNeil, 2016 UT 3, 365 P.3d
699. There, after objecting to certain evidence on hearsay
20140994-CA 6 2016 UT App 234
State v. Cruz
grounds and discussing the issue with the trial court, counsel
acknowledged, ‚Okay, it’s not hearsay.‛ Id. ¶ 22. The supreme
court rejected the State’s invited error argument on the ground
that counsel had not conceded the evidence was not hearsay
‚until *after+ the trial court insisted that the detective’s testimony
was not hearsay.‛ Id. The trial court’s interpretation of the issue
thus ‚was not invited by‛ defense counsel. Id. ¶ 23 (citation and
internal quotation marks omitted). Reading Winfield and McNeil
together, we conclude that a party who withdraws an objection
in the face of the court’s insistence that the objection lacks merit,
and thereafter agrees with the court’s conclusion, does not invite
any resulting error; but a party who, without having objected to
a proposed course of action, affirmatively represents that they
have no objection to it, invites any resulting error.
¶21 Here, Cruz invited the alleged error. At no point did he
object on the ground he now asserts on appeal—that the court
erred in finding the recording ‚sufficiently reliable and
trustworthy.‛ Cruz lodged two objections below. First, he
objected to the supreme court’s interpretation of rule 15.5(a) in
State v. Nguyen, 2012 UT 80, 293 P.3d 236. He objected to the
supreme court’s inclusion of a ‚good cause‛ requirement in rule
15.5(a)—in his words, the court ‚just ignored the language and
interpreted it different.‛ See id. ¶ 11 (holding that a separate
showing of good cause to admit a recorded statement is not
required under rule 15.5, but that good cause is established
when the court considers all the factors in the rule and
determines that the recorded statement is accurate, reliable, and
trustworthy, and that its admission is in the interest of justice).
Cruz’s solution was to ‚go back and do the rule better so that we
all understand the same English and get rid of the good cause
showing.‛ Cruz does not renew this argument on appeal.
¶22 After discussing the good cause issue, the trial court
proposed to make findings on the eight conditions listed in rule
15.5, and Cruz stipulated to those conditions:
20140994-CA 7 2016 UT App 234
State v. Cruz
THE COURT: So let’s go through the
elements of 15.5 and see—
*DEFENSE COUNSEL+: I’ll stipulate to
those.
Nevertheless, the court made findings on each of the eight rule
15.5 conditions. After the court had devoted considerable time to
the findings, Cruz interrupted:
[DEFENSE COUNSEL+: Can I say this. I’m
not sure that you need to make all these temporary
findings, because I don’t agree with half the things
you’re saying.
THE COURT: Well, you don’t have to agree
with anything I’m saying.
*DEFENSE COUNSEL+: I don’t, but what
I’m saying—
THE COURT: [Counsel], let me make my
findings.
[DEFENSE COUNSEL]: Let me ask—but I
don’t think you have to be that detailed about—
because you’re almost saying that in the long run
it’s going to be the jury that decides if there’s
something inconsistent. So I think all you need to
determine—I don’t think you need to get into that.
But the court continued making its findings. At one point, Cruz’s
defense counsel stated that he did not agree with the court’s
finding that Child’s testimony did not contain inconsistencies,
‚but,‛ he continued, ‚I don’t think that you need to go there to
be able to make it admissible.‛ The court continued to make
detailed findings based on the specifics of Child’s statements.
When the court finished, defense counsel stated, ‚Let me tell
20140994-CA 8 2016 UT App 234
State v. Cruz
you, I don’t really care about the video coming in, and I don’t
care whether it’s close*d circuit live testimony+ or *a recording
played] in court. So I’m not going to object to that.‛
¶23 But he added, ‚Okay, let me just tell you what my issues
are.‛ He first expressed concern that the supreme court had
ignored rule 15.5’s ‚good cause‛ requirement in Nguyen. Then
he insisted that the prosecutor ‚only get[s] one shot‛: ‚If you
play the video, you can’t put the victim up there and ask her all
the things that you already got in the video, because the video’s
your one shot.‛ With that proviso, he stated, ‚I have no problem
with the video coming in.‛
¶24 We agree with the State that Cruz invited the error he
alleges on appeal. He never objected on the ground he now
asserts on appeal and he repeatedly assured the trial court that
he did not object to the CJC video recordings being played at
trial. And although he now describes the court’s findings as
‚truncated,‛ in the trial court he argued that they were
unnecessarily detailed.4
4. In any event, the trial court’s findings are sufficient. The judge
explained that he had viewed the videos twice and that he
himself speaks Spanish. He found that the detective explained to
Child the importance of telling the truth; that Child understood
that she could answer ‚I don’t know‛ to any question; that the
detective explained to Child that she ‚could say good or bad
things‛; that the detective employed open-ended questions
except to summarize or recap; that the detective ‚didn’t plant
anything in the child’s mind except to ask a question in the
alternative, such as ‘Were you kneeling or were you laying or
some other form on the floor or on the bed?’‛; that the detective
‚didn’t put words in her mouth‛; that Child ‚on her own‛
described the charged conduct; that ‚there was internal
consistency in her statements‛; that Child’s testimony was
‚linear and logical‛; that Child used verbal formulations that a
(continued<)
20140994-CA 9 2016 UT App 234
State v. Cruz
B. Cruz’s Rights to Cross-Examination and Confrontation
¶25 On appeal, Cruz argues that the trial court’s decision to
provide the video recordings to the jury for deliberation
‚essentially denied Cruz both the rights of confrontation and fair
trial.‛ At trial Cruz noted that the recordings were made nearly a
year earlier and that the delay between Child’s statement and
trial limited his ability to cross-examine her. Because a child’s
‚understanding of time is difficult,‛ he argued, it is ‚extremely
difficult to cross-examine a child that’s five or six years old about
something that happened a year ago.‛ The prosecutor responded
that, although counsel’s concern applied with greater force to
children, his contention was ‚true for every human witness
where a statement is recorded sometime in advance, shortly after
events occur, but well in advance of trial.‛ The court stated that
it would proceed as provided in rule 15.5 of the Utah Rules of
Criminal Procedure, ‚applying *rule 15.5+ as I believe the law
requires me to.‛
¶26 First, to the extent Cruz relies on the Confrontation
Clause, his argument fails. As we have observed, the Supreme
Court made clear ‚that there is no Confrontation Clause
violation when the declarant appears for cross-examination at
trial.‛ State v. Rhinehart, 2006 UT App 517, ¶ 26 n.7, 153 P.3d 830
(citing Crawford v. Washington, 541 U.S. 36 (2004)). The
Confrontation Clause places no constraints at all on the use of a
prior testimonial statement ‚‘so long as the declarant is present
(