State v. Salazar

2019 UT App 169

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
EDDIE A. SALAZAR,
Appellant.

Opinion
No. 20171019-CA
Filed October 18, 2019

Third District Court, Salt Lake Department
The Honorable Keith A. Kelly
No. 171901573

Andrea J. Garland, Attorney for Appellant
Sean D. Reyes, Nathan D. Anderson, and Lindsey L.
Wheeler, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES KATE APPLEBY and DIANA HAGEN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Eddie A. Salazar was convicted by a jury of burglary and
theft. He now appeals, seeking a new trial. We affirm.
 State v. Salazar

BACKGROUND 1

¶2 On July 6, 2015, Salazar and his wife (Wife) drove Steve
Young, whom they had just met that day, to a house in
Cottonwood Heights, Utah. When they arrived at the house,
Young got out of the car and knocked on the front door. When
no one answered, Young climbed over the fence to the backyard
and kicked in the basement door. Once inside, Young stole
sunglasses, a money clip, a microcassette recorder, jewelry, and
some medication that he hoped to be painkillers. While Young
was inside the house, a witness (Witness) observed a car slowly
driving up and down the road in front of the house. Witness
noted that the driver had his seat leaning back and that the car
was not in the normal lane of traffic but was “against the curb.”
Young then ran from the side of the house, got in the car, and
“told [Salazar] to hurry up.”

¶3 Witness saw the car speed up to meet Young as he ran
from the house, noting that the car “sped off” once Young
“jumped in the car.” Witness followed the car in his truck and
called the police. Young noticed the truck, and he suspected that
Witness was “probably going to come and try to get [his]
property back.” Young first testified that he told Salazar and
Wife that he “stole some stuff,” but he later clarified that he told
Salazar and Wife, “[T]hese guys [in the truck] are going to come
beat me up because I got my stuff out of the house,” implying
that he had retrieved only his own property. 2 Witness described

1. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences in a light most favorable to the verdict,
reciting the facts accordingly. We present conflicting evidence
only when necessary to understand issues raised on appeal.”
State v. Heaps, 2000 UT 5, ¶ 2, 999 P.2d 565.

2. Young later contradicted himself, stating that he did not tell
Salazar and Wife that he stole items from the house but that he
(continued…)

20171019-CA 2 2019 UT App 169
 State v. Salazar

Salazar’s driving as “erratic” and “reckless,” and he eventually
stopped following the car because Salazar “was speeding . . .
faster than what [he] thought was safe.” 3

¶4 Salazar then pulled into a nearby gas station. Young
handed Wife the pills that he had just stolen and asked her to
throw them away. Young said he did not tell Wife that they were
stolen or the reason he wanted her to throw them away, just that
he “didn’t want them.” Surveillance footage from the gas station
showed Young reaching out of the car and handing something to
Wife as she got out of the car. The footage then showed Wife
walk to a trash can and throw something away. Later that same
day, the police recovered prescription pills—with the name of
the homeowner whose house Young burglarized—from the
same gas station trash can depicted in the surveillance video.

¶5 A detective, who heard a report of the burglary, observed
a vehicle with three occupants matching the description given by
dispatch. The detective stopped that vehicle, and Witness joined
the detective to confirm that the car and its three occupants were
those whom Witness had seen fleeing the burglarized house.
After advising them of their Miranda rights, 4 the detective
interviewed Salazar, Wife, and Young.

(…continued)
“told them [he] was getting [his] stuff and that [he] believe[d]
these people were going to harm [him] for stealing [his] stuff
back.”

3. Young testified that Salazar did not start driving faster when
they noticed they were being followed by the truck.

4. Miranda v. Arizona, 384 U.S. 436 (1966), outlines the warnings
police are required to give suspects subjected to custodial
interrogation. Id. at 479.

20171019-CA 3 2019 UT App 169
 State v. Salazar

¶6 Salazar told the detective that he drove Young to the
house, after which Young “exited the car and was gone for a few
minutes.” Salazar said that when Young returned he was
“carrying some items.” Salazar said he was unsure what Young
was doing in the house, but he “assumed that [Young] had
stolen something.” As they were driving away from the house,
Salazar said he “observed a vehicle that he believed was
following him or chasing him,” so “he then began to drive a little
faster in an attempt to lose the tailing vehicle.” Salazar said that
they then stopped at a gas station for fuel.

¶7 Wife’s account, with the addition of some details, largely
corroborated Salazar’s account. Wife referred to Young as their
“friend.” Wife confirmed that after arriving at the gas station,
Young handed her some pills, which she thought belonged to
the homeowner and which she discarded.

¶8 Young initially told the detective that Salazar and Wife
had just picked him up at the gas station, but after being
confronted with Salazar’s and Wife’s accounts of the event,
Young admitted to breaking into the house and “looking for
items to steal.” The State charged Salazar with one count of
burglary and one count of theft. Wife died before trial, and
therefore she did not have the opportunity to testify at trial.

¶9 At Salazar’s trial, Young appeared as a witness for the
defense and provided additional details to the story. Young
testified that he met Salazar and Wife the same day that they
drove him to the house he burglarized. Young had been at his
sister’s house because he “got kicked out of the place [he] was
staying.” Young’s sister and Wife were friends, and Wife and
Salazar were visiting Young’s sister at her house the morning of
the theft and burglary. Young testified that he asked Wife for a
ride, telling her he “needed to go to a house that [he] was renting
. . . to get [his] stuff from there.” Young admitted that he asked
Wife to throw out the pills at the gas station, but he testified that
neither Salazar nor Wife knew anything about the burglary.

20171019-CA 4 2019 UT App 169
 State v. Salazar

¶10 At trial, the State sought to introduce the statements Wife
made to the detective. Salazar objected, arguing that the
evidence was inadmissible hearsay that violated his
constitutional right to confront the witnesses against him at trial.
The trial court admitted the evidence of Wife’s statements to the
detective, and the jury ultimately convicted Salazar as charged.
Salazar appeals.

ISSUE AND STANDARD OF REVIEW

¶11 Salazar contends that the trial court’s admission of Wife’s
statements to the detective violated the Confrontation Clause of
the Sixth Amendment. 5 “Whether a defendant’s confrontation
rights have been violated is a question of law, reviewed for
correctness.” State v. Garrido, 2013 UT App 245, ¶ 9, 314 P.3d
1014. However, we will not reverse a constitutional error if “we
find the error harmless beyond a reasonable doubt.” State v.
Calliham, 2002 UT 86, ¶ 45, 55 P.3d 573.

ANALYSIS

¶12 Salazar seeks a new trial, contending that the trial court
violated his right to confront and cross-examine a witness when
it allowed Wife’s hearsay statements to substitute for in-court
testimony. The Sixth Amendment to the United States
Constitution provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the

5. Salazar also argues that the admission of Wife’s statements to
the detective violated rule 804(b)(3) of the Utah Rules of
Evidence because they were hearsay. Because we conclude that
the error in admitting Wife’s statements in violation of the
Confrontation Clause was harmless beyond a reasonable doubt,
we do not address this alternative claim.

20171019-CA 5 2019 UT App 169
 State v. Salazar

witnesses against him.” U.S. Const. amend. VI. The State
concedes, and we agree, that the admission at trial of Wife’s
pretrial statements to the detective violated Salazar’s right to
confront Wife because her statements were testimonial in nature,
she did not appear at trial, and Salazar had no prior opportunity
for cross-examination. 6 See Crawford v. Washington, 541 U.S. 36,
68 (2004).

¶13 Even when, as here, a defendant demonstrates a
Confrontation Clause violation, the United States Supreme Court
has “repeatedly reaffirmed the principle that an otherwise valid
conviction should not be set aside if the reviewing court may
confidently say, on the whole record, that the constitutional error
was harmless beyond a reasonable doubt.” State v. Vigil, 2013 UT
App 167, ¶ 11, 306 P.3d 845 (quoting Delaware v. Van Arsdall, 475
U.S. 673, 681 (1986)). Whether an error was harmless beyond a
reasonable doubt depends on several factors, namely, “the
importance of the witness’ testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or absence
of evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the
prosecution’s case.” Van Arsdall, 475 U.S. at 684; accord State v.
Villarreal, 889 P.2d 419, 425–26 (Utah 1995). Salazar presents
three arguments to support his position that Wife’s pretrial
statements were important to the State’s case and that their
introduction at trial was therefore not harmless beyond a
reasonable doubt. We address each of Salazar’s harmfulness
arguments in turn.

6. Had Wife been available and able to testify at trial—for the
State or as a defense witness—both parties would have had the
opportunity to cross-examine her.

20171019-CA 6 2019 UT App 169
 State v. Salazar

I. Wife’s Reference to Young as a Friend

¶14 First, Salazar contends that Wife referring to Young as
Salazar’s and her “friend suggested an affiliation between Young
and the Salazars that was found nowhere else in the record.” He
asserts that the use of the word “friend” was “evidence of
association, [was] probative of the couple’s relationship with
Young, and implied collusion between the three of them.”
However, the jury could have relied on other evidence presented
at trial to conclude that Salazar and Wife had an affiliation with
Young. For example, Young testified that his sister was
“good friends” with Wife. Additionally, contrary to Salazar’s
assertion, it is unlikely that the jury gave much weight to the use
of the word “friend,” because its meaning can vary depending
on its context. It can denote “one attached to another by affection
or esteem,” an “acquaintance,” or even “one that is not hostile.”
See Friend, Merriam-Webster.com, https://www.merriam-
webster.com/dictionary/friend [https://perma.cc/Z7CU-WPTQ];
see also Ware v. Rodale Press, Inc., No. COV/A/95-5870, 1998 WL
409014, at *2 (E.D. Pa. June 23, 1998) (“One recognizes that the
term ‘good friends’ is susceptible to various gradations of
meaning.”); Law Offices of Herssein & Herssein, PA v. United
Services Auto. Ass'n, 271 So. 3d 889, 894 (Fla. 2018) (“In the
traditional sense, a friend is a person attached to another person
by feelings of affection or esteem. But friendship in the
traditional sense of the word does not necessarily signify a close
relationship. It is commonly understood that friendship exists on
a broad spectrum: some friendships are close and others are not.
Thus the mere existence of a friendship, in and of itself, does not
inherently reveal the degree or intensity of the friendship.”
(quotation simplified)).

¶15 Furthermore, even if the reference to Young as a “friend”
is not cumulative or corroborated, any friendship between the
Salazars and Young is not the critical analysis here, because
friendship is not an element of burglary or necessarily indicative
of being an accomplice. Salazar argues that his “relationship to

20171019-CA 7 2019 UT App 169
 State v. Salazar

Young as a party to the charged offenses was an element of both
crimes.” But improperly admitted “factual statements” are
“harmless beyond a reasonable doubt” if they are “either
unnecessary to prove the elements of the crimes charged or were
supported by other evidence at trial.” State v. Farnworth, 2018 UT
App 23, ¶ 26, 414 P.3d 1053. Simply put, Salazar having a
friendship with Young is not an element of burglary, and the
burglary conviction was supported by other evidence at trial. In
regard to accomplice liability, Utah law does not require a
friendship in order for an accomplice to be convicted for the
same offense. See State v. Comish, 560 P.2d 1134, 1136 (Utah 1977)
(“[A]n ‘accomplice’ is one who participates in a crime in such a
way that he could be charged and tried for the same offense.”).
While a friendship between two persons may be probative of the
intent of an accomplice, certainly two persons may be
accomplices in the absence of friendship. Wife’s reference to
Young as a “friend” did not go “to the heart of what the jury was
being asked to decide,” because the relationship between Salazar
and Young is not an element of the crime. See State v. Larrabee,
2013 UT 70, ¶ 36, 321 P.3d 1136. The jury was asked to decide if
Salazar was “a party to the offense,” and there was ample
admissible evidence presented to the jury that suggested that
Salazar was “a party to the offense.” See infra Part III.
Accordingly, we determine that the trial court’s admission of
Wife’s testimony referring to Young as Salazar’s and her friend
was harmless beyond a reasonable doubt.

II. Wife’s Statement About the Pills

¶16 Second, Salazar contends that Wife’s statement to the
detective that “Young provided her a bag of prescription pills
and directed her to discard the pills in the garbage can at [the
gas station]” “invited the jury to base inferences of Salazar’s
knowledge on [Wife]’s actions.” Additionally, Salazar argues
that this evidence was important to the State’s case because it
was referenced in the State’s closing argument. “Where evidence
admitted in violation of defendant’s right to confrontation is

20171019-CA 8 2019 UT App 169
 State v. Salazar

merely cumulative, it may be deemed harmless beyond a
reasonable doubt.” State v. Calliham, 2002 UT 86, ¶ 46, 55 P.3d
573. Evidence is “merely cumulative” if “others also testified to
essentially the same facts.” State v. Oniskor, 510 P.2d 929, 931
(Utah 1973). For example, in Oniskor the defendant killed a
woman and stole some of her belongings, including a unique
ring and keys. Id. at 930. A few days later, the defendant was
arrested with the ring and keys on his person. Id. At a
preliminary hearing, one witness testified that he observed the
defendant wearing the ring before he was arrested and another
witness—a medical examiner—expressed his opinion as to the
cause of death. Id. At trial, because the two witnesses were out of
the state, the court permitted the jury to hear the testimony of
the witnesses from the preliminary hearing. Id. On appeal, the
defendant argued that his right to confrontation was violated. Id.
The court concluded that to permit the jury to hear the evidence
was a harmless error, observing that the testimony “was merely
cumulative since others also testified to essentially the same
facts.” Id. at 931.

¶17 Here, Wife’s testimony that Young directed her to throw
out the pills was cumulative of other evidence in the record. At
trial, Young testified that he asked Wife to throw out the pills
and that Wife did indeed throw out the pills. Additionally,
surveillance footage showed Young reach out from inside a car
and hand something to Wife, which she took and placed in a
trash can. Later that same day, the police recovered the pills,
prescribed to the homeowner whose house Young burglarized,
from the same gas station trash can. In light of Young’s
testimony, the surveillance footage, and the police’s recovery of
the pills, we conclude that Wife’s testimony on this matter was
cumulative and was harmless beyond a reasonable doubt.

III. The Strength of the State’s Case

¶18 Third, Salazar argues that the overall strength of the
State’s case was not so overwhelming as to make the

20171019-CA 9 2019 UT App 169
 State v. Salazar

constitutional error harmless beyond a reasonable doubt.
Wrongfully admitted evidence is harmless beyond a reasonable
doubt if it is “cumulative and . . . the untainted proof of the
defendant’s guilt [is] overwhelming.” Delaware v. Van Arsdall,
475 U.S. 673, 682 n.5 (1986); see also State v. Oniskor, 510 P.2d 929,
931 (Utah 1973) (stating that when “other evidence against
defendant [is] overwhelming[,] . . . this court is compelled to
conclude beyond a reasonable doubt that the denial of
defendant’s rights constituted harmless error”). “To show that a
defendant is guilty under accomplice liability, the State must
show that an individual acted with both the intent that the
underlying offense be committed and the intent to aid the
principal actor in the offense.” State v. Briggs, 2008 UT 75, ¶ 13,
197 P.3d 628. “[I]t is not necessary for the accomplice to have the
same [mental state 7] that the principal actor possessed as long as
the accomplice intended that [the underlying] offense be
committed.” Id. ¶ 14. Criminal intent “may be inferred from
circumstances such as presence, companionship, and conduct
before and after the offense.” Id. ¶ 13 (quotation simplified).

¶19 Here, Salazar contends that without Wife’s statements to
the detective, the State’s case was insufficient to prove that he
had the requisite intent to commit burglary or theft, maintaining
that he did not know Young’s true intentions. Salazar supports
this contention by pointing to Young’s testimony that “not only
was Salazar unaware that Young had [burglarized] the home but
Young provided Salazar a reasonable explanation for Witness

7. The original language in State v. Briggs, 2008 UT 75, 197 P.3d
628, uses the word “intent” as opposed to “mental state.” See id.
¶ 14. Our supreme court has clarified that “‘intent,’ as used in
this context, is a legal term of art that means the state of mind
accompanying an act. It should not be confused with the mental
state designated as ‘intentionally.’” State v. Jeffs, 2010 UT 49, ¶ 43,
243 P.3d 1250 (quotation simplified).

20171019-CA 10 2019 UT App 169
 State v. Salazar

following them” when he said, “I think these guys are going to
come beat me up because I got my stuff out of the house.”
Additionally, Salazar argues that the State’s case was insufficient
because the detective “did not observe Salazar committing any
crime, including speeding or reckless driving.”

¶20 Contrary to Salazar’s contention, the State did not need
Wife’s statements to demonstrate to the jury that Salazar had the
requisite intent to commit burglary or theft. The evidence that
Salazar was “a party to the offense,” even absent Wife’s
statements, was substantial. Young admitted that he committed
both burglary and theft. Salazar did not dispute that he drove
Young to and from the house where Young committed these
crimes. While Young was in the house, Witness observed Salazar
driving slowly up and down the road outside the normal lane of
traffic and with his seat leaning back. When Young came
running to the road from the backyard, Witness testified that
Salazar sped up to meet Young and that Salazar “sped off” after
Young “jumped in the car.” When Salazar noticed Witness
following them, he sped up, and his driving was described as
“erratic” and “reckless.” Salazar also admitted that he drove
“faster in an attempt to lose the tailing vehicle.” While Young
testified that Salazar did not know his true intentions, when the
detective asked Salazar if he knew what Young was doing in the
house, Salazar said that he “assumed that [Young] had stolen
something.”

¶21 Given Salazar’s presence at the scene of the crime; his
conduct before and after the offenses; his association with
Young, who admitted to burglary and theft; and his admission
that he was operating under the assumption that a theft
occurred, sufficient evidence apart from Wife’s statements was
presented at trial which allowed the jury to infer that Salazar
had the requisite criminal intent. See id. ¶¶ 13–14. Accordingly,
we determine that the admission of Wife’s statements to the
detective in violation of the Confrontation Clause was harmless
beyond a reasonable doubt.

20171019-CA 11 2019 UT App 169
 State v. Salazar

CONCLUSION

¶22 We conclude that (1) Wife’s pretrial statements to the
detective were not necessary to prove the elements of the crimes
for which Salazar was charged, (2) Wife’s statements were
cumulative of other evidence presented to the jury, and (3) the
State presented sufficient evidence, apart from Wife’s statements
to the detective, allowing the jury to infer that Salazar had the
requisite criminal intent to commit the crimes for which he was
charged. In light of these determinations, we conclude beyond a
reasonable doubt that Salazar was not prejudiced by the
admission of Wife’s statements.

¶23 Affirmed.

20171019-CA 12 2019 UT App 169