State v. Sanchez

2016 UT App 189

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JAMES RAPHAEL SANCHEZ,
Appellant.

Opinion
No. 20140749-CA
Filed September 1, 2016

Third District Court, Salt Lake Department
The Honorable Denise P. Lindberg
No. 111903659

John B. Plimpton, Ralph W. Dellapiana, and Teresa
L. Welch, Attorneys for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN concurred. SENIOR JUDGE
RUSSELL W. BENCH concurred except as to Part I, in which he
concurred in the result, with opinion.1

VOROS, Judge:

¶1 James Raphael Sanchez appeals his convictions for
murder, a first degree felony, and obstruction of justice, a second
degree felony. Sanchez beat his girlfriend (Victim) for hours
before strangling her. He then attempted to clean the apartment
before asking a friend to pick him up. His principal claim on
appeal is that the court incorrectly excluded out-of-court

1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
 State v. Sanchez

statements that supported his mitigation theory of extreme
emotional distress. He also claims that the evidence was
insufficient to support his conviction for obstruction of justice.
We affirm.

BACKGROUND

¶2 On the morning of May 5, 2011, Sanchez called 911. He
refused to identify himself, but told dispatch ‚there’s a woman
here, not breathing‛ at Victim’s apartment. When the
paramedics arrived at the apartment, they found Victim ‚badly
beaten, [not] breathing, and [with] obvious signs of rigor
mortis.‛ Diffuse ‚deep red, purple‛ bruising and swelling
covered Victim’s face. Her nose was fractured. ‚There was blood
in the whites of both of her eyes.‛ The ‚inner surfaces of her
lips‛ were torn, ‚as if the lip had been pulled away from the
gum.‛ Her neck was bruised, consistent with strangulation.
Victim’s torso, abdomen, legs, arms, hands, and buttocks also
displayed ‚extensive‛ bruises ‚too numerous to count.‛ Eight of
her ribs were fractured. Possible bite marks were found on
Victim’s back and buttocks. Police also found blood throughout
the apartment. Some of the blood looked diluted or as if
someone had tried to wipe it away.

¶3 Victim’s neighbor had been kept awake by ‚muffled
yelling, some grunting, and then some running around here and
there, and then . . . a lot of crying, . . . like despair.‛ The sounds
continued for at least five hours, but when the neighbor left for
work at 8:15 a.m. ‚it was dead silent.‛ Sanchez told police that
he ‚got into a fight with‛ Victim that lasted all night. He said
‚that he slapped her, thumped her, and then he called the cops.‛
When asked to elaborate, he described punching, slapping,
kicking, stomping, grabbing, and finally strangling Victim.
Sanchez ‚said that she lost consciousness and that he attempted
to revive her on a couple of occasions by breathing for her.‛ He
also put Victim’s head under running water in an attempt to

20140749-CA 2 2016 UT App 189
 State v. Sanchez

revive her. When she lost consciousness for the last time, he lay
down next to her and took a nap. When Sanchez woke up and
Victim did not, he called a friend, then called 911. He left the
apartment, leaving the door open for paramedics and police. His
friend drove Sanchez to a convenience store, where Sanchez
again called 911. They then went to the friend’s house, where
Sanchez took off his bloody pants and socks and took a nap.

¶4 At trial, the State introduced an interview between
Sanchez and a police detective through the detective’s testimony.
The interview was audio-recorded and transcribed. In the
interview, Sanchez admitted to assaulting Victim. On cross-
examination of the detective, Sanchez attempted to elicit
testimony that would explain the reason for the assault—that
‚he started fighting with *Victim+ because he thought she was
cheating on him with his brother,‛ that ‚she admitted it and she
kept saying it,‛ that ‚she wouldn’t tell [him] that‛ she would
stop the affair, and that Victim’s statement ‚hurt *his+ feelings.‛
The trial court excluded the testimony, stating, ‚If you’re seeking
to introduce . . . hearsay, unless you can give me an exception,
it’s not coming in.‛ Sanchez argued, among other things, that the
court was required to admit the testimony under rule 106 of the
Utah Rules of Evidence. The court determined that rule 106 did
not require the court to admit the testimony. Sanchez did not
testify at trial.

¶5 Sanchez also moved for a directed verdict on the
obstruction-of-justice charge, arguing that the evidence failed to
show that he acted with the requisite intent. The trial court
denied the motion.

¶6 The jury convicted Sanchez of murder, a first degree
felony, and obstruction of justice, a second degree felony.
Sanchez appeals.

20140749-CA 3 2016 UT App 189
 State v. Sanchez

ISSUES ON APPEAL

¶7 Sanchez contends that under rule 106 of the Utah Rules of
Evidence, the trial court was required to admit the part of his
police interview in which he explained why he assaulted Victim,
because it was necessary to qualify, explain, or place into context
the part of the statement in which he confessed to the assault.

¶8 Sanchez also contends that the evidence was insufficient
to support his conviction for obstructing justice.

ANALYSIS

I. Utah Rule of Evidence 106

¶9 Sanchez contends that under rule 106 of the Utah Rules of
Evidence, the trial court was required to admit the part of his
police interview in which he explained why he assaulted Victim,
because it was necessary to qualify, explain, or place into context
the part of the statement in which he confessed to the assault.
Sanchez attempted to introduce the part of his statement in
which he told police that ‚he started fighting with [Victim]
because he thought she was cheating on him with . . . his
brother.‛ He said ‚this enraged him,‛ that Victim ‚admitted it
and she kept saying it,‛ and that it ‚hurt *his+ feelings.‛

¶10 Rule 106 of the Utah Rules of Evidence ‚permits
introduction of an otherwise inadmissible statement if the
opposing party introduces a portion of the statement.‛ State v.
Jones, 2015 UT 19, ¶ 40, 345 P.3d 1195.

If a party introduces all or part of a writing or
recorded statement, an adverse party may require
the introduction, at that time, of any other part—or
any other writing or recorded statement—that in
fairness ought to be considered at the same time.

20140749-CA 4 2016 UT App 189
 State v. Sanchez

Utah R. Evid. 106. The rule ‚serves a protective function to
prevent a misleading impression created by taking matters out
of context.‛ Jones, 2015 UT 19, ¶ 40 (citation and internal
quotation marks omitted).

¶11 We ‚review a trial court’s decision to admit or exclude
specific evidence for an abuse of discretion.‛ Id. ¶ 12 (citation
and internal quotation marks omitted). ‚In circumstances where
evidence should have been admitted, it is reviewed for harmless
error.‛ State v. Colwell, 2000 UT 8, ¶ 26, 994 P.2d 177. ‚If it is
reasonably likely a different outcome would result with the
introduction of the evidence and confidence in the verdict is
undermined, then exclusion is harmful.‛ Id.

¶12 We first consider whether the trial court erred when it
excluded Sanchez’s statement under the fairness standard of rule
106. Because we conclude that the court exceeded its discretion
when it excluded the statement under the fairness standard, we
then consider whether Sanchez’s statement was hearsay and, if
so, whether rule 106 creates a hearsay exception. And because
we conclude that rule 106 does create a hearsay exception, we
then consider whether the erroneous exclusion of the statement
was harmless.

A. The Fairness Standard

¶13 Rule 106 allows a party to admit the balance of a written
or recorded statement ‚that in fairness ought to be considered at
the same time‛ as the rest of the statement. Utah R. Evid. 106.
The rule ‚establishes a fairness standard that requires admission
of those things that are relevant and necessary to qualify,
explain, or place into context the portion already introduced.‛
Jones, 2015 UT 19, ¶ 40 (citation and internal quotation marks
omitted). ‚It thus serves a protective function to prevent a
misleading impression created by taking matters out of context.‛
Id. (citation and internal quotation marks omitted). ‚The trial
court has considerable discretion in determining issues of

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 State v. Sanchez

fairness . . . .‛ State v. Leleae, 1999 UT App 368, ¶ 45, 993 P.2d 232.
‚In determining whether a disputed portion of a statement must
be admitted [under the federal version of rule 106], the trial
court should consider whether (1) it explains the admitted
evidence, (2) places the admitted evidence in context, (3) avoids
misleading the jury, and (4) insures fair and impartial
understanding of the evidence.‛ United States v. Lopez-Medina,
596 F.3d 716, 735 (10th Cir. 2010) (citation and internal quotation
marks omitted).2

¶14 The trial court here ruled that ‚the fairness analysis does
not require the admission of *Sanchez’s+ statements offered to
explain the reasons for his brutal assault on the victim,‛ because
the explanation was ‚a self-serving, after-the-fact explanation.‛
The court also ruled that the fairness standard did not require
the admission of Sanchez’s explanation, because it was
‚temporally removed‛—separated by sixteen pages in the
transcript—from the confession introduced by the prosecution.
Sanchez argues that ‚neither of these reasons is valid for
excluding evidence offered under rule 106.‛

¶15 In ruling that the fairness standard did not require the
admission of a self-serving explanation, the trial court relied on
this court’s opinion in Leleae, 1999 UT App 368. In Leleae, the trial
court ruled that fairness did not require admission of a statement
where ‚the statement was merely self-serving.‛ Id. ¶ 45. We

2. Utah appellate courts have had little occasion to consider rule
106. See State v. Jones, 2015 UT 19, ¶¶ 40–42, 345 P.3d 1195; State
v. Leleae, 1999 UT App 368, ¶¶ 42–46, 993 P.2d 232; see also State
v. Cruz-Meza, 2003 UT 32, ¶¶ 9–14, 76 P.3d 1165 (comparing rule
106 to ‚the doctrine of oral completeness‛ under rule 611).
However, Utah Rule of Evidence 106 ‚is the federal rule,
verbatim,‛ Utah R. Evid. 106 advisory committee note, so ‚we
look to federal cases interpreting Rule 106 as persuasive but not
necessarily binding authority,‛ Leleae, 1999 UT App 368, ¶ 43 n.5.

20140749-CA 6 2016 UT App 189
 State v. Sanchez

concluded that the trial court had not abused its discretion, but
we did so noting that although the statement had been excluded,
‚the jury heard testimony that supported defendant’s version of
the incident and put the admitted portion of defendant’s
statement in context.‛ Id. The statement that the defendant
sought to admit under rule 106 was therefore not ‚necessary to
qualify, explain, or place into context the portion already
introduced,‛ Jones, 2015 UT 19, ¶ 40 (citation and internal
quotation marks omitted), because other admitted testimony
served to place the testimony into context. Leleae, 1999 UT App
368, ¶ 45.

¶16 That is not the case here. Because Sanchez did not testify,
no other testimony presented his explanation that ‚he started
fighting with [Victim] because he thought she was cheating on
him with . . . his brother.‛ Moreover, ‚*t+here is no legal
principle which excludes statements or conduct of a party solely
on the ground they are self-serving. If otherwise admissible, a
party has as much right to his own evidence as to the evidence of
any other witness.‛ State v. Johnson, 671 P.2d 215, 216 (Utah 1983)
(per curiam).3 But cf. Glauser Storage, LLC v. Smedley, 2001 UT
App 141, ¶ 24, 27 P.3d 565 (‚Even where testimony is
uncontroverted, a trial court is free to disregard such testimony
if it finds the evidence self-serving and not credible.‛ (citation
and internal quotation marks omitted)). Although the statement
was self-serving, fairness required that Sanchez be allowed ‚to
qualify, explain, or place into context‛ the portion of his
confession introduced by the detective’s testimony. See Jones,
2015 UT 19, ¶ 40 (citation and internal quotation marks omitted).

3. The trial court ruled that Victim’s statement was inadmissible
hearsay. But as we discuss below, see infra ¶ 21, Victim’s
statement was not offered for the truth of the matter asserted
and was therefore not hearsay.

20140749-CA 7 2016 UT App 189
 State v. Sanchez

¶17 The trial court also ruled that Sanchez’s statement ‚was
temporally removed from the inculpatory statements that had
been received without objection.‛ The court explained that it
believed rule 106 and the rule of completeness were implicated
‚when there is a fragment of a sentence, or a fragment of a
paragraph, that is being introduced, but in fairness, to get a full
context of that—of the import of that limited statement, the
whole statement should be read, then that’s when the Rule of
Completeness applies.‛ The court concluded with, ‚I do not
believe that it’s implicated when we are addressing parts of an
interview that are, as was represented to me, twenty or more
pages apart . . . .‛ Sanchez argues that ‚the touchstone of rule
106 is fairness without regard to the temporal proximity of the
pertinent parts of the statement.‛

¶18 We agree with Sanchez. Rule 106 allows a party to
introduce ‚any other part‛ of a recorded statement that qualifies,
explains, or places into context a statement introduced by the
opposing party. See Utah R. Evid. 106. The rule does not limit the
adverse party to ‚a fragment of a sentence‛ or ‚a fragment of a
paragraph.‛ ‚Underlying Rule 106 [of the Federal Rules of
Evidence] . . . is a principle of fairness requiring the introduction
of an entire or related document if necessary for the fair and
impartial understanding of the admitted portion or document.‛
Phoenix Assocs. III v. Stone, 60 F.3d 95, 102 (2d Cir. 1995) (citation
and internal quotation marks omitted). Determining what must
be admitted in fairness under rule 106 ‚becomes a line-drawing
exercise, to be conducted case by case.‛ United States v. Boylan,
898 F.2d 230, 256 (1st Cir. 1990) (applying the federal analogue of
our rule 106). We conclude that in this case, the trial court drew
that line unreasonably close to the portion of the record already
admitted. Sanchez’s explanation for the assault was part of the
same interview with the same detective and, even if it had been
given at a later point, qualified his confession.

¶19 Having concluded that the trial court exceeded its
discretion by not admitting Sanchez’s statement under rule 106’s

20140749-CA 8 2016 UT App 189
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fairness standard, we now turn to the question of whether that
same standard allows the admission of otherwise inadmissible
hearsay.

B. Hearsay Exception

¶20 Sanchez contends that the trial court erred when it
excluded his statement as ‚double hearsay,‛ or hearsay within
hearsay. Sanchez sought to admit his statement to police about
what Victim had said to him—that Victim ‚admitted‛ she was
cheating on him with his brother and that ‚she kept saying it.‛
He argues that his statement did not constitute double hearsay
because Victim’s statement is not hearsay. Victim’s statement is
not hearsay, he reasons, ‚because it was not offered for the truth
of the matter asserted in it.‛ ‚Whether a statement is offered for
the truth of the matter asserted is a question of law, which we
review under a correction of error standard.‛ State v. Haltom,
2005 UT App 348, ¶ 8, 121 P.3d 42 (citation and internal
quotation marks omitted). He further argues that his statement
was admissible hearsay under rule 106 of the Utah Rules of
Evidence. We ‚review a trial court’s decision to admit or exclude
specific evidence for an abuse of discretion.‛ State v. Jones, 2015
UT 19, ¶ 12, 345 P.3d 1195 (citation and internal quotation marks
omitted).

¶21 Hearsay, as defined by the Utah Rules of Evidence, is ‚a
statement that: (1) the declarant does not make while testifying
at the current trial or hearing; and (2) a party offers in evidence
to prove the truth of the matter asserted in the statement.‛ Utah
R. Evid. 801(c). ‚However, if an out-of-court statement is offered
simply to prove that it was made, without regard to whether it is
true, such testimony is not proscribed by the hearsay rule.‛ State
v. Olsen, 860 P.2d 332, 335 (Utah 1993) (citation and internal
quotation marks omitted). ‚Often statements of this type merely
reveal people’s motives for later actions.‛ State v. McNeil, 2013
UT App 134, ¶ 48, 302 P.3d 844, aff’d, 2016 UT 3, ¶ 46, 365 P.3d
699. Sanchez argues, and we agree, that he attempted to offer

20140749-CA 9 2016 UT App 189
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Victim’s statement ‚simply to prove that it was made,‛ see Olsen,
860 P.2d at 335 (citations and internal quotation marks omitted),
and not to prove that Victim was in fact cheating on Sanchez
with his brother. Accordingly, the trial court erred when it ruled
that Victim’s statement to Sanchez—the statement within
Sanchez’s own hearsay statement—was hearsay.

¶22 Sanchez concedes that his statement to police was
hearsay, but argues that it was ‚admissible hearsay under Rule
106.‛ In other words, Sanchez contends that a portion of a
recorded statement that ‚in fairness ought to be considered‛
under rule 106 need not also satisfy the hearsay rule. See Utah R.
Evid. 106. Although this is not the first time the question has
been presented to a Utah appellate court, no Utah court has
decided it. See Jones, 2015 UT 19, ¶ 41. We now conclude that rule
106 allows the admission of otherwise inadmissible hearsay if
under the fairness standard the evidence should be considered.

¶23 The state and federal rule 106 is at minimum a rule of
timing. See Fed. R. Evid. 106 advisory committee note (‚The rule
is based on two considerations . . . . The second is the inadequacy
of repair work when delayed to a point later in the trial.‛). See,
e.g., United States v. Adams, 722 F.3d 788, 826 (6th Cir. 2013);
United States v. Sutton, 801 F.2d 1346, 1368 (D.C. Cir. 1986); Sipary
v. State, 91 P.3d 296, 300 (Alaska Ct. App. 2004). ‚Because
admitting the curative evidence later in the trial may not be
adequate to remedy the effect of the misleading impression, Rule
106 authorizes a party to interrupt the proceedings to have the
curative evidence introduced immediately.‛ United States v.
Holden, 557 F.3d 698, 705 (6th Cir. 2009). Courts that read rule
106 solely as a rule of timing focus on the final provision of the
rule that allows the adverse party to complete a statement or
place a statement into context ‚at the same time‛ as the original
evidence. See, e.g., United States v. Costner, 684 F.2d 370, 373 (6th
Cir. 1982) (‚Rule 106 is intended to eliminate the misleading
impression created by taking a statement out of context. The rule

20140749-CA 10 2016 UT App 189
 State v. Sanchez

covers an order of proof problem; it is not designed to make
something admissible that should be excluded.‛).

¶24 We now consider whether Utah’s version of rule 106 is
also a rule of admissibility; that is, whether it can ‚overcome rule
802’s prohibition against hearsay.‛ Jones, 2015 UT 19, ¶ 41.
Courts are about equally divided on whether rule 106 operates
to admit otherwise inadmissible hearsay. See id. ¶ 41 n.56.4

4. By our count, four federal circuit courts of appeals read rule
106 to admit otherwise inadmissible hearsay. See, e.g., United
States v. Harry, 816 F.3d 1268, 1279–80 (10th Cir. 2016); United
States v. Bucci, 525 F.3d 116, 133 (1st Cir. 2008); United States v.
Johnson, 507 F.3d 793, 796 (2d Cir. 2007); United States v. Sutton,
801 F.2d 1346, 1368 (D.C. Cir. 1986). Five circuits do not read rule
106 to admit otherwise inadmissible hearsay. See, e.g., United
States v. Hassan, 742 F.3d 104, 134 (4th Cir. 2014); United States v.
Vargas, 689 F.3d 867, 876 (7th Cir. 2012); United States v. Ramos-
Caraballo, 375 F.3d 797, 803 (8th Cir. 2004); United States v.
Collicott, 92 F.3d 973, 983 (9th Cir. 1996); United States v. Costner,
684 F.2d 370, 373 (6th Cir. 1982). Of the five circuits that have
appeared to hold that the rule of completeness does not trump
other restrictions on the admissibility of evidence, at least four
have done so only in dicta. Michael A. Hardin, This Space
Intentionally Left Blank: What To Do When Hearsay and Rule 106
Completeness Collide, 82 Fordham L. Rev. 1283, 1312 (2013) (‚A
particular pattern emerges in these cases. Courts of this view
often state that Rule 106 cannot render inadmissible remainders
admissible, but then go on to find other reasons not to admit the
remainder*.+‛). ‚The Supreme Court *has+ ducked this issue by
holding that whether or not it was usable under Rule 106 [of the
Federal Rules of Evidence], a party could introduce the
remainder of a truncated letter as part of his own case under the
common law completeness doctrine.‛ Charles Alan Wright and
Kenneth W. Graham, Jr., 21A Federal Practice and Procedure
(continued<)

20140749-CA 11 2016 UT App 189
 State v. Sanchez

¶25 We begin with the language of the rule. See State v. Vessey,
957 P.2d 1239, 1240 (Utah Ct. App. 1998) (per curiam) (‚When
the language of a rule or statute is unambiguous, Utah courts
have consistently held the rule’s plain language must be
followed.‛).The rule states that ‚*i+f a party introduces all or part
of a writing or recorded statement, an adverse party may require
the introduction, at that time, of any other part—or any other
writing or recorded statement—that in fairness ought to be
considered at the same time.‛ Utah R. Evid. 106. The key term is
introduction. Does the adverse party’s right to require the
introduction of the omitted evidence mean that the adverse party
has a right to insist that it merely be offered into evidence, or
that it also be admitted into evidence? In context, we read the
term introduce as synonymous with admit. Black’s Law
Dictionary defines ‚introduce into evidence‛ as ‚*t+o have (a fact

(