State v. Cruz

2020 UT App 157

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
LEE DONALD CRUZ,
Appellant.

Opinion
No. 20190230-CA
Filed November 19, 2020

Second District Court, Ogden Department
The Honorable Joseph M. Bean
No. 171902757

Emily Adams and Cherise M. Bacalski, Attorneys
for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY
concurred.

MORTENSEN, Judge:

¶1 Lee Donald Cruz appeals his conviction for aggravated
kidnapping. He contends his trial counsel provided ineffective
assistance by failing to move for a directed verdict and by failing
to object to the prosecution’s introduction of allegedly false
evidence to support his conviction. He also contends the district
court erred at sentencing by failing to resolve his objections to
the presentence investigation report on the record. We affirm the
conviction but remand the issue of Cruz’s objections to the
presentence investigation report.
 State v. Cruz

BACKGROUND 1

¶2 Cruz and the victim (Victim) started dating in 2015 or
2016 shortly before he served a prison sentence in Arizona.
When Cruz was released from prison in early December 2017,
Victim picked him up and the two stayed with Victim’s uncle in
Brigham City, Utah. But Victim quickly decided she no longer
wanted to be involved with Cruz, and when she told him so, he
became “really, really crazy.” Victim pled with Cruz to “just let
[her] be” and to allow her to “get on with [her] life.” Cruz
instead threatened to physically assault her, began following
her, and even went to her children’s house.

¶3 On December 14, 2017, Victim drove to her friend’s
(Friend) apartment to hide from Cruz. Friend shared the
apartment with Friend’s son, son’s wife (Daughter-in-law), and
their two-year-old son. Victim fell asleep on a couch in the living
room while Friend lay awake on a nearby bed with her eyes
closed. At approximately 11:30 p.m., Cruz broke into the
apartment. Friend opened her eyes and saw Cruz standing over
Victim with a gun in his hand.

¶4 Cruz immediately pointed the loaded gun at Victim’s face
and began yelling and demanding that she leave with him.
Victim emphatically and repeatedly told Cruz that she did not
want to go anywhere with him, but Cruz continued to point the
gun at her face while calling her a “bitch” and demanding that
she “get the fuck up off the couch” and “get the fuck in the car

1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts
accordingly.” State v. Liti, 2015 UT App 186, ¶ 3 n.2, 355 P.3d
1078 (cleaned up). “We present conflicting evidence only when
necessary to understand issues raised on appeal.” State v. Vallejo,
2019 UT 38, ¶ 2 n.1, 449 P.3d 39 (cleaned up).

20190230-CA 2 2020 UT App 157
 State v. Cruz

and . . . go.” Cruz threatened that he would “blast in [the
apartment]” if she did not leave with him.

¶5 Friend watched all of this from the side of her bed. When
she got up from the bed, Cruz waved his gun around and
demanded to know whose apartment he had entered. As
Daughter-in-law entered the living room after hearing the
“ruckus” from her room, Friend retreated to a room in the back
of the apartment and called the police.

¶6 Meanwhile in the living room, Daughter-in-law expressed
her concern that her child was in the apartment. When Victim
reiterated this concern, Cruz responded, “I didn’t fucking gun at
the kids. Get your fucking shit and go.” After Daughter-in-law
insisted that Cruz leave, he eventually exited the apartment
through the front door, shutting it behind him. Daughter-in-law
held the door handle and told Victim to “get [her] shit and get
out” because “he’s crazy . . . waving his gun around in the
middle of the apartment.” Victim put on her shoes, gathered her
bag and car keys, and left minutes later.

¶7 When Victim left the apartment, Cruz was still outside,
standing between the apartment complex and a gate leading to
the parking lot. Victim then left the apartment complex with
Cruz in his car. Once in the car, Cruz told Victim, “[Y]ou’re
staying with me.” Victim protested, indicating that she wanted
to go back to her uncle’s house in Brigham City to sleep. Cruz
instead struck Victim on the back of her head, insisted that she
wanted to perform sex acts on him, and took her to the basement
of a duplex in Ogden, Utah.

¶8 Police eventually identified the location of the two and
arrived at the basement at approximately 1:00 a.m. One of the
officers asked Victim, “What’s going on tonight?” Victim
immediately responded, “I don’t know how the hell he found
me.” Victim told the officer that she did not want to leave
Friend’s apartment with Cruz, but she left with him because she
was “fearful . . . for [her] safety” and concerned for the children

20190230-CA 3 2020 UT App 157
 State v. Cruz

in the apartment. Victim further informed the officer, “I left
because [Cruz] was like, ‘Bitch, I’m going to blast in here.’”
Victim also told the officer that she “didn’t want to leave” with
Cruz because even before this incident she “ha[d] to really watch
[her]self” because of Cruz’s “crazy” behavior. Throughout her
explanation, Victim continued to express her disbelief that Cruz
was able to find her that night. This interaction was recorded on
the officer’s body camera.

¶9 After Cruz was taken into custody, Victim was threatened
by numerous individuals who thought she may cooperate with
the State in the criminal case against Cruz. On one occasion,
someone claiming to be Cruz’s best friend told Victim to “watch
[her] ass” if she was “ratting” on Cruz and that it would be crazy
if Cruz “[went] down for [Victim].” Victim decided not to
pursue charges and told the State that she would not “testify on
[Cruz].”

¶10 Cruz also directly contacted Victim about how she should
testify. During the initial stages of the criminal proceedings, the
district court placed a no-contact order between Cruz and
Victim. Despite this order, Cruz called Victim more than 130
times. In these calls, Cruz discussed trial strategy with Victim
and directed her that she needed to testify at trial, “say that none
of this ever happened” and be “decisive” that he “never forced
anybody to do anything.”

¶11 Perhaps unsurprisingly, Victim’s testimony at trial
described a dramatically different version of events than what
she told police had transpired on the night of December 14, 2017.
At trial, she testified that she was not at Friend’s apartment to
hide from Cruz; rather, she claimed that she had been with him
throughout the entire day of December 14 and that they had
planned to drive back to Brigham City together that night.
Victim further testified that she had gone to Friend’s house with
the intent of briefly picking up some items, but accidentally fell
asleep there. Victim also denied that Cruz had a gun, denied that

20190230-CA 4 2020 UT App 157
 State v. Cruz

he had threatened to “blast” in the apartment, and claimed she
left with Cruz willingly after he simply asked her to because he
had to go to work the next morning. Finally, Victim testified that
they went to the basement in Ogden because they were too tired
to drive to Brigham City.

¶12 The State countered Victim’s new version of events by
playing audio and video recordings of contradictory statements
she made to police and other individuals about what had
happened that night. To explain why Victim was testifying to a
contradictory version of events, the State also presented
evidence that Victim had been threatened over the possibility of
her testifying for the State and had been directly contacted by
Cruz as to how she was to testify favorably for him.

¶13 It was in this context that the State asked whether Victim
“ma[d]e comments” that she “didn’t want contact with [Cruz],
and [she] wanted a no-contact order.” Victim denied she ever
said anything to that effect and asked the State to show her an
instance when she did. The State then played the following
recording of Victim stating to a friend:

So anyways, so listen. So there’s a no-contact order
between me and him, okay? I put it there. I don’t
want nothing to do with him. I don’t want to
contact him. I don’t want him to contact me,
whatever. As far as that goes, like I told the cops,
hey, I want that information.

The State then played a second recording in which Victim also
told a friend:

[Cruz] probably followed me around. He is psycho
in that extent. I do want to put a restraining order,
and I want a no-contact order between me and
him. And I want to keep that in place, and I’m
going to make sure it stays in place.

20190230-CA 5 2020 UT App 157
 State v. Cruz

This was the extent of the State’s questions about whether Victim
wanted a no-contact order. After hearing all the evidence, the
jury convicted Cruz of aggravated kidnapping. 2

¶14 The district court later held a sentencing hearing, during
which Cruz identified three errors in the presentence
investigation report (PSI). Cruz conceded that the suggested
corrections would not affect his sentence. The district court did
not make any oral findings as to whether it accepted Cruz’s
proposed corrections to the PSI. But in its written final judgment,
it did indicate that Cruz made objections to the PSI, listed what
they were, and noted that “[t]he corrections d[id] not change”
Cruz’s sentence.

ISSUES AND STANDARDS OF REVIEW

¶15 Cruz contends his trial counsel provided him with
ineffective assistance in two respects. First, Cruz contends
counsel was ineffective for not moving for a directed verdict on
the aggravated kidnapping count. Second, Cruz contends
counsel was ineffective for not objecting to the State playing the
first audio recording, which he asserts amounted to the State
introducing false evidence. “An ineffective assistance of counsel
claim raised for the first time on appeal presents a question of
law.” State v. Abelon, 2016 UT App 22, ¶ 11, 369 P.3d 113 (cleaned
up).

¶16 Cruz further contends the district court erred by failing to
resolve his objections to the PSI on the record as required by
Utah Code section 77-18-1(6)(a). “Whether the district court
complied with its legal duties under section 77-18-1(6)(a) is a
question of law that we review for correctness.” Id. (cleaned up).

2. Cruz was also convicted of aggravated burglary. He does not
challenge this conviction, so we make no further reference to it.

20190230-CA 6 2020 UT App 157
 State v. Cruz

ANALYSIS

I. Ineffective Assistance of Counsel

¶17 Cruz contends his trial counsel provided him with
ineffective assistance. To prevail on an ineffective assistance of
counsel claim, the defendant “must demonstrate that (1) his
counsel’s performance was deficient in that it fell below an
objective standard of reasonableness and (2) the deficient
performance prejudiced the defense.” State v. Ray, 2020 UT 12,
¶ 24, 469 P.3d 871 (cleaned up). “A defendant’s inability to
establish either element defeats a claim for ineffective assistance
of counsel.” State v. Hatch, 2019 UT App 203, ¶ 29, 455 P.3d 1103
(cleaned up).

¶18 Counsel’s performance is deficient if, “considering all the
circumstances, counsel’s acts or omissions were objectively
unreasonable,” meaning “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed [the
defendant] by the Sixth Amendment.” State v. Scott, 2020 UT 13,
¶ 36, 462 P.3d 350 (cleaned up). Counsel’s performance is
prejudicial if there is “a reasonable probability that the outcome
of his or her case would have been different absent counsel’s
error.” Id. ¶ 43.

A. Directed Verdict

¶19 Cruz first contends that trial counsel provided ineffective
assistance by not moving for a directed verdict on the
aggravated kidnapping count. “In evaluating whether a motion
for directed verdict would be successful, this court reviews the
evidence and all reasonable inferences to be drawn therefrom,
and assesses whether some evidence exists from which a
reasonable jury could find that the elements of the crime had
been proven beyond a reasonable doubt.” Hatch, 2019 UT App
203, ¶ 48 (cleaned up). So long as “the State present[ed] some
evidence from which a reasonable jury could find all the
elements, trial counsel’s decision not to raise a futile motion for a

20190230-CA 7 2020 UT App 157
 State v. Cruz

directed verdict would not be deficient performance.” State v.
Baer, 2019 UT App 15, ¶ 7, 438 P.3d 979 (cleaned up).

¶20 To support the conviction for aggravated kidnapping, the
State had to demonstrate that Cruz attempted to commit “either
a kidnapping or an unlawful detention . . . in conjunction with
aggravating circumstances.” State v. Wilder, 2016 UT App 210,
¶ 18, 387 P.3d 512; see also Utah Code Ann. § 76-5-302(2)
(LexisNexis Supp. 2020) 3 (including “attempting to commit”
either predicate offense as sufficient to support a conviction for
aggravated kidnapping). 4 “As is relevant here, the Utah Code
defines kidnapping and unlawful detention as detaining or
restraining the victim intentionally or knowingly, without
authority of law, and against the will of the victim.” State v.
Wright, 2019 UT App 66, ¶ 37, 442 P.3d 1185 (cleaned up); see also
id. ¶ 38 (noting that detention or restraint occurs so long as the
defendant acted “however briefly, to impair the victim’s ability
to move freely” (cleaned up)). Accordingly, the State had “to
show that [Cruz] engaged in conduct constituting a substantial
step towards detaining or restraining [Victim] [that] strongly
corroborat[ed] his intent to detain or restrain her.” State v.
Fowers, 2013 UT App 212, ¶ 6, 309 P.3d 1156.

¶21 Cruz concedes that he “may have taken a ‘substantial
step’ towards detaining and restraining [Victim] when he had a
gun in his hand and told [her] to leave,” but he argues that “the
evidence [was] lacking that [his] intent was to commit
kidnapping or unlawful detention.” He asserts that if he had
“the intent to kidnap or unlawfully detain [Victim], he would

3. The statutory provisions in effect at the relevant time do not
differ from the current provisions in any way material to this
case. We therefore cite the current Utah Code for convenience.

4. Cruz does not contest that sufficient evidence was presented
to prove the “aggravating circumstances” element.

20190230-CA 8 2020 UT App 157
 State v. Cruz

have put up more of a fight [when Daughter-in-law demanded
that he leave], or he would have grabbed [Victim] on his way
out.” Cruz cites State v. Wright, 2019 UT App 66, 442 P.3d 1185,
for the proposition that his conduct in the apartment was
insufficient to show that his intent was to detain or restrain
Victim because his conduct was “assaultive rather than
restrictive.” Id. ¶ 40.

¶22 Cruz’s contention is unavailing. Breaking into the
apartment and repeatedly threatening Victim at gunpoint while
demanding that she leave with him was a substantial step
toward detaining Victim against her will that strongly
corroborated his intent to do so. And even if Cruz’s conduct
inside the apartment was somehow insufficient to corroborate
his intent, the jury was not required to view this conduct in
isolation. Evidence was also presented that Cruz knew Victim
wanted him to leave her alone, and that she went to Friend’s
apartment specifically to hide from him. Cruz’s awareness of
these facts further corroborated his intention to detain Victim
against her will when he broke into the apartment and
threatened her at gunpoint. Moreover, Cruz’s subsequent
conduct in the car corroborated his intent. Cruz insisted that
Victim was going to stay with him, and when she instead
requested that he take her to Brigham City, Cruz physically
assaulted her and took her to a basement in Ogden. Thus, the
jury could reasonably infer that Cruz intended to impair
Victim’s ability to move freely.

¶23 That Cruz left the apartment after Daughter-in-law
implored him to do so and did not physically drag Victim with
him does not negate the fact that the State presented “some
evidence” that corroborated his intent to detain Victim against
her will. Instead, Cruz simply points to possibly conflicting
evidence of his intent. But “the existence of conflicting evidence
alone cannot justify taking the case away from the jury.” State v.
Torres, 2018 UT App 113, ¶ 21, 427 P.3d 550. To the contrary,
“when the evidence presented is conflicting or disputed, the jury

20190230-CA 9 2020 UT App 157
 State v. Cruz

serves as the exclusive judge of both the credibility of witnesses
and the weight to be given particular evidence.” State v. Wall,
2020 UT App 36, ¶ 53, 460 P.3d 1058 (cleaned up).

¶24 Cruz’s reliance on State v. Wright is also misplaced. Wright
involved an argument between Wright and his mother in their
home about whether she was interfering with his prescription
medication and lying about him to other individuals. 2019 UT
App 66, ¶ 40. The mother eventually rose from her chair to walk
away, and Wright pushed her back into it and continued yelling
at her. Id. We held there was insufficient evidence to show that
Wright attempted to detain the mother against her will when he
pushed her into the chair, reasoning that the context of the push
itself was merely incident to the ongoing argument, and there
were “no other actions taken by [Wright] to suggest that he
intended to impair [his] [m]other’s ability to move.” Id.

¶25 We do not find any persuasive parallels between Wright
and this case. Importantly, the conduct at issue was not merely
incidental to some other argument—Cruz broke into the
apartment in which he knew Victim was hiding from him; did so
for the sole purpose of getting Victim to leave with him; and
pointed a loaded gun at her face to compel her to do so. It is not
difficult to infer from Cruz’s conduct that he intended to detain
Victim when he broke into the apartment. Furthermore, Wright
acknowledged the difficulty in inferring Wright’s intent to
detain his mother because nothing else he said or did
corroborated such an intent. But that is not the case here—Cruz
expressed his intent to detain Victim when he issued the
ultimatum that she leave with him or he would “blast” in the
apartment. The rationale expressed in Wright has no application
here.

¶26 Based on the foregoing, we conclude that sufficient
evidence was presented to allow a reasonable jury to find that
Cruz intended to detain or restrain Victim against her will.
Accordingly, trial counsel was not deficient in declining to move

20190230-CA 10 2020 UT App 157
 State v. Cruz

for a directed verdict on the aggravated kidnapping count
because it would have been rejected by the district court.

B. False Evidence

¶27 Cruz next contends that trial counsel provided ineffective
assistance by failing to object to the State’s use of the audio
recording in which Victim indicated that she “put” a no-contact
order between herself and Cruz, which he asserts amounted to
the State’s use of false evidence. The “[S]tate may not knowingly
use false evidence to obtain a conviction, even where the false
evidence goes only to the credibility of the witness.” State v.
Schnoor, 845 P.2d 947, 949 (Utah Ct. App. 1993). But to prevail on
his ineffective assistance claim, it is not enough for Cruz to
demonstrate that the State introduced false evidence. Cruz also
must show that not objecting to the State’s use of the recording
was objectively unreasonable. And Cruz must demonstrate there
is a reasonable probability that the objection would have been
sustained and the verdict would have been different as a result.
See State v. Edgar, 2017 UT App 54, ¶¶ 17–18, 397 P.3d 656; see
also State v. Doyle, 2010 UT App 351, ¶ 3, 245 P.3d 206 (“[W]e
affirm [the] conviction because there is not a reasonable
likelihood that the false testimony affected the jury’s ultimate
verdict.”).

¶28 Cruz argues that Victim’s statement that she “put” the
no-contact order on him was false, because it “implie[d]” that
Victim “request[ed] or instigate[d] the no-contact order,”
whereas “the State requested the no-contact order” at the initial
appearance and made no mention that Victim wanted it. Cruz
thus argues that the “State knew [the statement] was false
because it was the one who asked for the no-contact order.” As
to the issue of prejudice, Cruz asserts that “the evidence that [he]
kidnapped [Victim] was not strong” and “[w]ithout that
statement, the jury would not have believed [Victim] was afraid
of [him] and, by extent, did not leave the apartment against
her will.”

20190230-CA 11 2020 UT App 157
 State v. Cruz

¶29 Even assuming the State introduced false evidence,
counsel performed deficiently in failing to object, and the
objection would have been sustained, Cruz has not shown a
reasonable probability that the recording affected the jury’s
verdict. Cruz’s underlying premise that the evidence against him
was “not strong” is unconvincing. As discussed above, there was
sufficient evidence, absent this recording, to allow the jury to
find that Cruz intended to detain Victim against her will. We are
not persuaded that Victim’s desire for a no-contact order after
Cruz was detained—in a trial where the jury was well aware
that Cruz threatened Victim at gunpoint that if she did not leave
with him, he would “blast” in the apartment—was somehow the
State’s lynchpin to proving its case. Indeed, the State was not
even required to prove that Victim unwillingly left with Cruz.
As discussed above, the State had to demonstrate only that Cruz
attempted to detain Victim against her will, not that he actually
succeeded in doing so.

¶30 But even if we were to accept Cruz’s argument that the
State’s case depended on showing that Victim left with Cruz
against her will, and that “key to [Victim’s] alleged fear was the
no-contact order,” playing this statement to the jury was still
harmless. The State played two recordings in which Victim
expressed her desire for a no-contact order and Cruz fails to
acknowledge the second. See State v. Gordon, 886 P.2d 112, 116–17
(Utah Ct. App. 1994) (holding that false testimony about the
defendant’s presence at the crime scene was harmless because
“there was extensive independent evidence” presented to show
the same). In this second recording, Victim specifically indicated
that she wanted a no-contact order because Cruz was psychotic
and was adamant that she was going to make sure it stayed in
place. So irrespective of the statement with which Cruz takes
issue, it was still clear that Victim expressed that she wanted a
no-contact order. To the extent there is some material difference
between Victim wanting a no-contact order and requesting one,
Cruz fails to explain the distinction.

20190230-CA 12 2020 UT App 157
 State v. Cruz

¶31 Based on the foregoing, Cruz has not demonstrated a
reasonable probability that the State’s introduction of the
recording affected the jury’s verdict. As a result, Cruz cannot
prevail on his second claim of ineffective assistance of counsel.

II. Sentencing Error

¶32 Cruz finally contends that the district court erred by
failing to make findings about the accuracy of his objections to
the PSI at sentencing. He asserts that no findings were made
orally at the hearing and that the written judgment also failed to
do so—he argues the written judgment summarized only what
defense counsel argued were the errors without making any
specific findings as to their accuracy. As a remedy, Cruz seeks
only “a limited remand to allow the district court to make
findings on the inaccuracies in the PSI.” Because the State
concedes this point and jointly requests remand, we order a
limited remand for this purpose. See Utah Code Ann. § 77-18-
1(6)(a) (LexisNexis Supp. 2020).

CONCLUSION

¶33 Trial counsel did not provide Cruz with ineffective
assistance. We thus affirm his conviction for aggravated
kidnapping. Because there is no objection to a limited remand
for the district court to make specific findings regarding the
accuracy of Cruz’s objections to the PSI, we order limited
remand for this purpose.

¶34 Affirmed in part and remanded in part.

20190230-CA 13 2020 UT App 157