State v. Torres

2018 UT App 113

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
LUIS A. TORRES JR.,
Appellant.

Opinion
No. 20160879-CA
Filed June 14, 2018

Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 161900917

Peter A. Daines, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

HAGEN, Judge:

¶1 A jury convicted Luis A. Torres Jr. of one count of
aggravated assault (Count 1), a felony, and one count of assault
(Count 2), a misdemeanor, stemming from violent acts that he
committed during an argument with the victim, his then-
girlfriend. Torres appeals his conviction on Count 1, arguing that
he received constitutionally ineffective assistance of counsel
because his trial counsel did not move for a directed verdict and
did not object to the admission of instant messages in which
Torres admitted to prior acts of abuse against the victim. Because
the State produced sufficient evidence to justify submitting the
case to the jury, trial counsel did not perform deficiently in
failing to raise a futile motion. In addition, given the strong
evidence of guilt, any error in admitting the contested messages
at trial did not prejudice the defense. Accordingly, we affirm.
 State v. Torres

BACKGROUND

¶2 Torres and the victim had been involved in an on-again-
off-again relationship for several years. Late one evening, the
victim planned to spend the night with Torres at his father’s
apartment, but the couple began arguing. Torres eventually
“tossed” his cell phone at the victim, hitting her in the chin. After
exchanging “fuck you[s],” Torres told the victim to leave.

¶3 As the victim gathered her belongings, Torres punched
her in “the back of [the] head.” The victim began crying and told
Torres not to hit her. In response, Torres said, “Stop fucking
crying, I didn’t hit you that hard.” The argument moved into the
kitchen where Torres hit the victim with his hand “next to her
left eye” before he walked out of the apartment. According to the
victim, although Torres’s father, sister, and the sister’s children
were asleep in the apartment at the time, no one stirred during
the argument.

¶4 After the victim finished gathering her belongings, she
walked out to the parking lot where she noticed Torres crouched
down next to the rear passenger tire of her vehicle. Assuming
that Torres was letting air out of her tire, the victim yelled,
“[W]hy are you doing this?”

¶5 The victim moved toward the driver’s side of her vehicle,
but Torres blocked the door and refused to budge. The victim
went around to the rear passenger door and crawled through
her car to the driver’s seat while Torres climbed into the
passenger seat beside her. She begged Torres to let her leave, but
he responded, “[F]uck you bitch.” When the victim then
attempted to start the ignition, Torres grabbed her keys, got out
of her car, and got into his own.

¶6 In response, the victim walked to the driver’s side of
Torres’s vehicle and asked him to return her keys and to “just
leave her alone.” Torres refused and started his vehicle. To
prevent Torres from leaving with her keys, the victim stood in

20160879-CA 2 2018 UT App 113
 State v. Torres

front of his vehicle. Undeterred, Torres shifted his vehicle into
drive and, without accelerating, let it roll forward. The victim
began moving backward, but Torres’s vehicle hit the top of her
legs several times. Torres then told the victim that “[she was]
going to fuckin’ die tonight.”

¶7 The victim repeatedly yelled at Torres to return her keys.
Instead of complying, Torres slowly accelerated his vehicle,
hitting the victim and causing her to fall backward. The victim
testified that Torres’s vehicle rolled over her until its front
bumper was positioned just below her chest. At trial, Torres
argued that it would have been physically impossible for his
vehicle to roll over the victim in the manner that she described
without causing significant injury because the vehicle, which
was equipped with a customized air suspension system, was
lowered and sat a mere seven-and-a-half inches off the ground.

¶8 When the victim stood up, she was “hysterical,” yelling at
Torres to return her keys and let her leave. However, Torres
accelerated and hit the victim again, sending her onto the hood
of his vehicle. After the victim rolled off hood and landed on the
ground, Torres said, “Fuck you bitch,” threw her keys to her,
and drove off. At trial, Torres’s sister testified that she had
looked through her bedroom window and had seen the couple
arguing face-to-face. And, according to his sister, when the
victim asked for her keys, Torres threw them into the air, got
into his car, and drove off.

¶9 The victim contacted police later that afternoon to report
the altercation. During the 911 call, the victim told the dispatcher
that Torres hit her with his vehicle, but she did not say that the
vehicle had rolled over her. According to the victim, she “was
just trying to be . . . short and simple” during the 911 call
because she knew that she would go into more detail with an
officer when she made a full report.

¶10 That same day, the victim met with an officer, who
interviewed her and took photos of her injuries: bruising to both

20160879-CA 3 2018 UT App 113
 State v. Torres

legs and her left eye. Ten hours after that initial interview, the
officer drafted a report, which indicated that the victim said that
she had been standing behind Torres’s vehicle, not in front of it.
This report differed from the victim’s statement to the 911
dispatcher. It also differed from a written statement that she
filled out several days after the altercation in which she reported
that she had been standing in front of Torres’s vehicle.

¶11 Approximately one week later, Torres and the victim
exchanged a series of Facebook instant messages. In those
messages, Torres said that he was “really sorry,” that the way he
treated the victim was “uncalled for,” and that he wanted to turn
himself in. In addition to expressing remorse about the
altercation, in several of the messages, Torres acknowledged that
he had previously abused the victim. Specifically, the messages
included statements, such as “I beat you every day . . . I’m such
a[n] abusive person,” “all I do is beat u,” and “sorry for all the
hurt and abuse.” The district court admitted all of the messages
at trial without objection from Torres’s counsel.

¶12 A jury convicted Torres of one count of aggravated
assault, a third degree felony, see Utah Code Ann. § 76-5-103(1)
(LexisNexis 2017), and one count of assault, a class A
misdemeanor, see id. § 76-5-102. Prior to jury deliberation, Torres
did not move for a directed verdict or otherwise challenge the
sufficiency of the evidence supporting his conviction for
aggravated assault. Torres timely appeals, asking this court to
reverse his conviction on Count 1 and remand for a new trial.

ISSUES AND STANDARD OF REVIEW

¶13 Torres raises two issues on appeal. First, he contends that
“the State presented insufficient evidence to establish beyond a
reasonable doubt that [he] assaulted [the victim] with his car.”
Recognizing that this claim is unpreserved, Torres asks that we
review this issue under the ineffective-assistance-of-counsel
exception to the preservation requirement. Second, Torres

20160879-CA 4 2018 UT App 113
 State v. Torres

contends that “[c]ounsel rendered ineffective assistance of
counsel by failing to object to the admission of Facebook
messages, which contained inadmissible and prejudicial
character evidence.” “We review claims of ineffective assistance
of counsel raised for the first time on appeal for correctness.”
State v. Jaramillo, 2016 UT App 70, ¶ 24, 372 P.3d 34 (quotation
simplified).

ANALYSIS

¶14 To prevail on an ineffective assistance of counsel claim, a
defendant must establish both that “counsel’s performance was
deficient” and that “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Because failure to establish either prong of the test is fatal to an
ineffective assistance of counsel claim, we are free to address [a
defendant’s] claims under either prong.” Honie v. State, 2014 UT
19, ¶ 31, 342 P.3d 182. In this case, we review the first issue
under the deficiency prong and the second issue under the
prejudice prong. We ultimately conclude that Torres did not
receive ineffective assistance of counsel.

I. Sufficiency of the Evidence

¶15 Torres first contends that trial counsel rendered
constitutionally ineffective assistance by failing to move for a
directed verdict or otherwise challenge the sufficiency of the
evidence supporting his aggravated assault charge. In particular,
Torres argues that “the State offered only inconclusive and
inherently improbable testimony that, when viewed in the light
most favorable to the State, did not establish that he assaulted
[the victim] with [his vehicle].” Because we conclude a motion
for directed verdict based on the sufficiency of the evidence
would have been futile, counsel’s performance was not
objectively deficient. See State v. Millerberg, 2018 UT App 32, ¶ 12,
414 P.3d 1106 (per curiam) (concluding that the defendant could
not establish ineffective assistance where “[a] motion for

20160879-CA 5 2018 UT App 113
 State v. Torres

directed verdict would have been futile given the evidence
presented”), petition for cert. filed, Apr. 26, 2018 (No. 20180314).

¶16 In evaluating counsel’s performance under Strickland’s
deficiency prong, we “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland v. Washington, 466 U.S. 668,
689 (1984). To rebut that presumption, a defendant “must
identify specific acts or omissions demonstrating that counsel’s
representation failed to meet an objective standard of
reasonableness.” State v. Montoya, 2004 UT 5, ¶ 24, 84 P.3d 1183
(quotation simplified). In other words, a defendant must
establish “that the challenged actions cannot be considered
sound strategy under the circumstances.” State v. Calvert, 2017
UT App 212, ¶ 22, 407 P.3d 1098 (quotation simplified). Because
“the decision not to pursue a futile motion is almost always a
sound trial strategy, counsel’s failure to make a motion that
would be futile if raised does not constitute deficient
performance.” Id. (quotation simplified).

¶17 Here, trial counsel could have reasonably concluded that
a motion for directed verdict would have been futile. “[W]hen
conflicting or disputed evidence is presented at a jury trial, the
jury serves as the exclusive judge of both the credibility of the
witnesses and the weight to be given particular evidence.” State
v. Prater, 2017 UT 13, ¶ 31, 392 P.3d 398 (quotation simplified).
On “a motion for a directed verdict[,] the court is not free to
weigh the evidence and thus invade the province of the jury,
whose prerogative it is to judge the facts.” Montoya, 2004 UT 5,
¶ 32 (quotation simplified). Rather, viewing the evidence in the
light most favorable to the State, the court must “determine
whether the state has produced ‘believable evidence’ on each
element of the crime from which a jury, acting reasonably, could
convict the defendant.” Id. “If there is any evidence, however
slight or circumstantial, which tends to show guilt of the crime
charged,” the court must submit the case to the jury. Id. ¶ 33
(quotation simplified).

20160879-CA 6 2018 UT App 113
 State v. Torres

¶18 Torres argues that the allegation that his vehicle rolled
over the victim to her mid-torso formed the basis of the State’s
theory at trial and that the victim’s testimony on this point was
“too dubious to believe.” Although the trial court “must
ordinarily accept the jury’s determination of witness credibility,
when the witness’s testimony is inherently improbable, the court
may choose to disregard it.” State v. Robbins, 2009 UT 23, ¶ 16,
210 P.3d 288. This limited exception applies only when “(1) there
are material inconsistencies in the testimony and (2) there is no
other circumstantial or direct evidence of the defendant’s guilt.”
Id. ¶ 19. Thus, a trial court may disregard a witness’s testimony
and direct the verdict in favor of a defendant only if the evidence
“is sufficiently inconclusive or inherently improbable [such] that
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime of which he or she was
convicted.” State v. Yazzie, 2017 UT App 138, ¶ 9, 402 P.3d 165
(quotation simplified); see also Robbins, 2009 UT 23, ¶ 18
(explaining that a witness’s testimony is “inherently
improbable” if it includes “circumstances [that are] incredibly
dubious and, as such, apparently false”).

¶19 We need not determine whether it was “inherently
improbable” for Torres’s vehicle to roll over the victim. Even if
we were to disregard the victim’s testimony on this point as
inherently improbable, there is sufficient independent evidence
to sustain Torres’s conviction. To convict Torres of aggravated
assault, the jury had to find beyond a reasonable doubt that
Torres intentionally, knowingly, or recklessly used a dangerous
weapon 1 to engage in conduct that qualified as one of the
following:

1. Torres concedes that a car may be considered a “dangerous
weapon” under Utah Code section 76-1-601. See Mackin v. State,
2016 UT 47, ¶¶ 29–31, 387 P.3d 986.

20160879-CA 7 2018 UT App 113
 State v. Torres

i. an attempt, with unlawful force or violence, to
do bodily injury to another;

ii. a threat, accompanied by a show of immediate
force or violence, to do bodily injury to another;
or

iii. an act, committed with unlawful force or
violence, that causes bodily injury to another or
creates a substantial risk of bodily injury to
another.

Utah Code Ann. § 76-5-103(1)(a) (LexisNexis 2017); see also id.
§ 76-2-102 (stating that “when the definition of the offense does
not specify a culpable mental state and the offense does not
involve strict liability, intent, knowledge, or recklessness shall
suffice to establish criminal responsibility”).

¶20 Even setting aside the victim’s testimony that the vehicle
knocked her down and rolled over her to mid-torso, Torres’s
other acts were sufficient to establish the elements of aggravated
assault. Torres initially rolled his vehicle into the victim’s legs
several times, warning her that “[she was] going to fuckin’ die
tonight.” This act, standing alone, constitutes “a threat,
accompanied by a show of immediate force or violence,” to do
bodily injury to the victim using the vehicle as a dangerous
weapon. See id. § 76-5-103(1)(a)(ii). In addition, the victim
testified that after the vehicle rolled over her and she regained
her footing, Torres accelerated into her a second time, sending
her onto the hood of the vehicle until she rolled onto the ground.
To corroborate the victim’s testimony, the State presented
photographic evidence to the jury, depicting the victim’s bruised
legs. A jury could have reasonably found that this separate act
constituted either an attempt to do bodily harm with the vehicle
or a completed act. See id. § 76-5-103(1)(a)(i), (iii). Because “[t]he
jury is free to believe or disbelieve all or part of any witness’s
testimony,” State v. Hayes, 860 P.2d 968, 972 (Utah Ct. App. 1993),
it could have believed the victim’s testimony on these points

20160879-CA 8 2018 UT App 113
 State v. Torres

while disregarding the allegation that the vehicle had rolled over
her body to mid-torso.

¶21 In addition, “[t]he existence of any additional evidence
supporting the verdict prevents the judge from reconsidering the
witness’s credibility.” Robbins, 2009 UT 23, ¶ 19. Contrary to
Torres’s assertion that “there is no other circumstantial or direct
evidence of [his] guilt,” the victim’s account was corroborated by
other evidence, including the messages where Torres apologized
for “the way I was with you” and offered to turn himself into
authorities, the testimony from Torres’s sister that Torres and the
victim were engaged in an altercation outside by their vehicles
on the night in question, and the photographs of the victim’s
bruised legs. This additional evidence not only supported the
verdict but also prevented the judge from reevaluating the
victim’s credibility. See id. And although Torres’s sister’s
testimony partially contradicted the victim’s, “when the
evidence presented is conflicting or disputed, the jury serves as
the exclusive judge of both the credibility of witnesses and the
weight to be given particular evidence.” State v. Johnson, 2015 UT
App 312, ¶ 10, 365 P.3d 730 (quotation simplified). Accordingly,
the existence of conflicting evidence alone cannot justify taking
the case away from the jury. See State v. Garcia-Mejia, 2017 UT
App 129, ¶ 19, 402 P.3d 82 (explaining that “the existence of
contradictory evidence or of conflicting inferences does not
warrant disturbing the jury’s verdict” (quotation simplified)).

¶22 Torres contends that the remainder of the victim’s
testimony contained “‘material inconsistencies’ rendering it too
inconclusive to support a conviction beyond a reasonable doubt
that he committed any act, attempt, or threat with [his vehicle] to
do bodily injury.” (Quoting State v. Lomu, 2014 UT App 41, ¶ 14,
321 P.3d 243.) Torres has not identified any material
inconsistencies that would justify a directed verdict. A jury
could have reasonably concluded that the differences between
the victim’s prior statements and her testimony at trial were due
to the victim previously providing incomplete statements, the

20160879-CA 9 2018 UT App 113
 State v. Torres

officer misreporting her statement, or a simple
misunderstanding. 2

¶23 Even assuming that the victim’s prior statements were
inconsistent with her trial testimony, inconsistent statements
alone are insufficient for a trial court to reassess a witness’s
credibility because they “do not render [her] testimony
‘apparently false.’” See Prater, 2017 UT 13, ¶¶ 38–39. In Robbins,
for example, our supreme court held that a child’s testimony
about alleged sexual abuse “was so inherently improbable that
the trial court had discretion to disregard it when considering
whether sufficient evidence supported [Robbins’s] conviction.”
2009 UT 23, ¶ 13. But the multiple inconsistencies in the child’s
testimony, standing alone, were insufficient to invoke the
inherent improbability exception. See id. ¶ 22. Instead, “[i]t was
the inconsistencies in the child’s testimony plus the patently false
statements the child made plus the lack of any corroboration that
allowed [the] court to conclude that insufficient evidence
supported Robbins’s conviction.” Prater, 2017 UT 13, ¶ 38
(explaining the holding in Robbins). Unlike Robbins, the victim’s

2. Torres also claims that (1) the victim had an incentive to lie to
obtain housing based on her status as a domestic abuse victim
and (2) she admitted to previously lying to him about being
pregnant. Evidence suggesting that a witness is biased or has a
character for untruthfulness is insufficient to justify taking the
case from the jury. It was squarely within the province of the
jury to weigh this evidence in assessing the victim’s credibility.
See State v. Crespo, 2017 UT App 219, ¶¶ 32–33, 409 P.3d 99
(affirming denial of motion for a directed verdict despite claims
that codefendant had previously lied to police and had a motive
to fabricate testimony in exchange for a plea deal because it is
the “exclusive function of the jury to weigh the evidence and to
determine the credibility of the witnesses” (quotation
simplified)).

20160879-CA 10 2018 UT App 113
 State v. Torres

testimony here was not the only evidence that Torres had
committed aggravated assault.

¶24 Because there was sufficient evidence from which a
reasonable jury could have found Torres guilty beyond a
reasonable doubt, a motion for directed verdict would have been
futile. Therefore, trial counsel did not perform deficiently in
failing to move for a directed verdict.

II. Character Evidence

¶25 Torres contends that trial counsel “rendered ineffective
assistance of counsel by failing to object to the admission of
Facebook messages, which contained inadmissible and
prejudicial character evidence.” While Torres concedes that
“some components of the messages have relevance” because
they “describ[e] the incident at issue,” he maintains that
“[c]ounsel should have objected to [the messages’] admissibility
as a whole and should have sought to redact the improper
components that . . . describe prior acts of violence.” Specifically,
in some messages, Torres acknowledged that he “abuse[s]” the
victim and that he is “an abusive person.” He also stated, “[A]ll I
do is beat u,” “I beat you every day,” and “sorry for all the hurt
and abuse. At least I can’t beat u no more.” In response, the
victim said, “U do this every time you beat me up.” Torres
contends that these “messages were prejudicial . . . because they
instructed the jury to view the incident in the context of a
broader violent history between [the victim] and Torres,
prompting the jury to be more inclined to believe [the victim’s]
allegations at trial.”

¶26 As previously discussed, supra ¶ 14, because failure to
establish either prong is fatal to a defendant’s ineffective
assistance of counsel claim, “[w]e may choose not to consider the
adequacy of counsel’s performance if we determine that any
claimed error was not harmful.” State v. Dunn, 850 P.2d 1201,
1226 (Utah 1993). To establish that an error was harmful, “[a]
defendant must show that there is a reasonable probability that,

20160879-CA 11 2018 UT App 113
 State v. Torres

but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Washington,
466 U.S. 668, 694 (1984). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. Here, Torres has not established that there is a reasonable
probability that the jury would have acquitted him of
aggravated assault had trial counsel objected to the admission of
the messages.

¶27 The Utah Supreme Court has recognized that “evidence
of multiple acts of similar or identical abuse is unlikely to
prejudice a jury.” State v. Reed, 2000 UT 68, ¶ 31, 8 P.3d 1025. In
Reed, the defendant, who had been charged with aggravated
sexual assault, argued that Utah statutory law entitled him to a
bifurcated trial in which the State had to prove the underlying
offense before evidence of the aggravating offenses could be
presented to the jury. Id. ¶ 20. In determining whether evidence
of the aggravating offenses was admissible, the court weighed
the probative value of the evidence against the potential for
unfair prejudice. Id. ¶ 29; see also Utah R. Evid. 403. The court
concluded that the evidence was not unduly prejudicial,
reasoning that the offenses “were essentially interchangeable,
were of the same nature and character as the primary offense,
and were carried out on the same victim.” Reed, 2000 UT 68, ¶ 31.
Such evidence does not pose the same risk that “may result from
introduction of prior criminal acts committed against a number
of unrelated victims.” Id.

¶28 The same rationale can be extended to this case. Here,
Torres challenges the admission of several messages in which he
admits to previously abusing the victim. Even if defense counsel
should have moved to redact those admissions, the broad
statements that Torres had abused the same victim in the past
amounted to “evidence of multiple acts of similar or identical
abuse” that was unlikely to prejudice a jury. See id. Significantly,
the messages were not the only evidence before the jury that
painted Torres as an abusive partner. The State presented
indisputably admissible evidence in support of Count 2, the

20160879-CA 12 2018 UT App 113
 State v. Torres

misdemeanor assault count, that Torres hit the victim several
times while the couple argued inside the apartment. At trial,
Torres did not dispute these allegations nor does he seek
reversal of the assault conviction on appeal. 3 Because the
admissions of past abusive behavior toward the victim were of
“the same nature and character” as the undisputed conduct
giving rise to Count 2, the risk of undue prejudice was greatly
reduced.

¶29 The central issue at trial was whether Torres had
assaulted the victim with his vehicle, thereby committing
aggravated assault with a dangerous weapon as charged in
Count 1. None of the messages suggested that Torres had
previously assaulted the victim with a vehicle or any other
dangerous weapon. As a result, the messages had no potential to
bolster the victim’s credibility with respect to the disputed
issues. Because the messages did not suggest prior abuse that
was more serious than the abuse Torres acknowledged
committing, he has failed to establish a reasonable probability
that the jury would have acquitted had the messages been
redacted.

CONCLUSION

¶30 We conclude that it was sound trial strategy for counsel
not to challenge the sufficiency of the evidence in this case
because such a challenge would have been futile. Additionally,

3. In closing argument, defense counsel explained that Torres
was not contesting that he
threw a phone at her, punched her in the back of
the head and then he slapped her in the face or hit
her in the eye. . . . That is horrible that he was
abusive to her, that is horrible. We are not here to
justify that. That would be Count 2. We are here
talking about Count 1.

20160879-CA 13 2018 UT App 113
 State v. Torres

there is no reasonable probability that the jury would have
acquitted Torres of aggravated assault had the messages been
redacted because the prior acts of assault described in the
messages are no more egregious than those charged in the
primary offense and did not bolster the victim’s credibility
regarding the disputed issues.

¶31 Affirmed.

20160879-CA 14 2018 UT App 113