State v. Heyen

2020 UT App 147

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
LEE ERVIN HEYEN,
Appellant.

Opinion
No. 20180804-CA
Filed October 29, 2020

Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 151911025

Brett J. DelPorto, Attorney for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and JILL M. POHLMAN
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Lee Ervin Heyen was convicted on multiple counts of
raping two fifteen-year-old girls. Heyen argues that he would
not have been convicted had his trial counsel (Counsel) insisted
that tattoos on his face and neck be covered or at least requested
a cautionary jury instruction about them. We conclude that
Heyen’s ineffective assistance of counsel claim fails and affirm
his convictions.
 State v. Heyen

BACKGROUND 1

¶2 Heyen sold or gave marijuana to two fifteen-year-old
girls, S.W. and C.W. He also employed these two girls to sell
marijuana. And on separate occasions, he raped them multiple
times.

¶3 The first victim, S.W., had asked around her school for
someone to sell her marijuana. In response, Heyen’s son (Son)
introduced her to Heyen. S.W. became friends with Heyen, and
the two would “[s]moke [marijuana] and listen to music” at
Heyen’s apartment. On one occasion at his apartment, Heyen
asked S.W. “why [she] hung out with him” and expressed that
“he thought that there was a reason that [she] hung out with him
other than buying marijuana from him.” Heyen then insisted
that she sit next to him on the couch. S.W. recalled being afraid
of Heyen because he had told her that he had been “involved in
some sort of a shooting when he was younger,” he had been in
prison, and he had “been part of a gang.” She also revealed that
she was scared because of his “prison tattoos and gang tattoos.”
Heyen then raped and forcibly sodomized S.W., ignoring her
pleas to stop. After the rape, Heyen told S.W. “to stop crying”
and that if she “did anything to upset him, there would be
consequences.” S.W. recalled being worried not only about her
own well-being but also that of her family and friends.

¶4 Over the next few weeks, S.W. continued to visit Heyen
because she “felt like [she] didn’t have a choice.” He would pick
up S.W. in his car and ask her if she “knew anybody who would

1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d
346 (quotation simplified).

20180804-CA 2 2020 UT App 147
 State v. Heyen

want to buy [drugs] from him.” On two separate occasions,
Heyen took S.W. to his apartment where she said that he raped
her in similar fashion to the first sexual assault. S.W. also alleged
that Heyen forced her to perform oral sex on him on two
separate occasions while in his car in a public parking lot.

¶5 The other victim, C.W., became acquainted with Heyen
when she asked Son “if he knew anywhere that [she] could get a
tattoo at 14 years old, and he told [her] his dad was doing
tattoos.” Without obtaining her parents’ permission, C.W.
received five tattoos from Heyen over time. In addition to
getting tattooed, C.W. began to “hang out” with Heyen more
frequently: “We would just kind of smoke weed together, drink
together, have parties, sell.” In January 2015, she left her father’s
house, where she had been living, dropped out of school, and
moved to Heyen’s apartment. About that same time, C.W. heard
a rumor from a friend that she and Heyen were sexually
involved. She was upset about the rumor and told Heyen, who
responded that they “might as well just make it true.” C.W.
recalled feeling “terrified” that Heyen was proposing a sexual
relationship.

¶6 A few weeks later, after having made threats implying
harm to C.W.’s family, Heyen pushed C.W. into his bedroom
and raped her. She recalled being “terrified” and “shocked” as
Heyen sexually assaulted her. C.W. testified that Heyen sexually
assaulted her “multiple times for the next four months,” alleging
that he raped her about three times a week during this period.

¶7 Heyen was charged with seven counts of rape—four for
raping C.W. and three for raping S.W.—that occurred between
January and May 2015. He was also charged with three counts of
distributing or arranging to distribute a controlled substance,
one with respect to C.W. and two with respect to S.W.

¶8 Heyen’s defense at trial was that while he may have been
involved in drug dealing and practiced questionable parenting,

20180804-CA 3 2020 UT App 147
 State v. Heyen

he did not rape the two victims. Noting that there was no DNA
evidence, no photographs, no video, no third-party witnesses,
and no text messages to corroborate the victims’ allegations of
sexual assault, Heyen argued that the accusations of rape were
based on “just the words of teenage girls.” Thus, challenging the
credibility of the two victims was critical to his defense, which is
the context in which Heyen’s tattoos came into play. Heyen
wanted to introduce evidence of a spiderweb tattoo “on [his]
penis—a hard-to-miss tattoo that neither alleged victim reported
seeing—without opening the door for the state to introduce
other tattoo evidence.”

¶9 While Heyen wanted the penis tattoo evidence admitted,
he argued that the “probative value of [his] prior gang affiliation
and [other] gang-affiliated tattoos [was] substantially
outweighed by the danger of unfair prejudice.” These tattoos
were associated with the white supremacy movement: “SAC” 2
written on his forehead, a swastika 3 on his stomach, a broken
sun cross 4 on his neck, “Supreme White Power” 5 written under

2. “Soldiers of Aryan Culture (SAC) is a large Utah-based white
supremacist prison gang.” Soldiers of Aryan Culture, Anti-
Defamation League, https://www.adl.org/education/references/
hate-symbols/soldiers-of-aryan-culture [https://perma.cc/ZC6R-
937C].

3. “Since 1945, the swastika has served as the most significant
and notorious of hate symbols, anti-Semitism and white
supremacy . . . . In the United States, the swastika is
overwhelmingly viewed as a hate symbol.” Swastika, Anti-
Defamation League, https://www.adl.org/education/references
/hate-symbols/swastika [https://perma.cc/A2Q3-NZVF].

4. “The white supremacist version of the Celtic Cross,
which consists of a square cross interlocking with or
(continued…)

20180804-CA 4 2020 UT App 147
 State v. Heyen

his neck, and “88” 6 written on the top of his head. In contrast,
the State wanted to introduce evidence of the totality of Heyen’s
tattoos for two reasons. First, the State argued that the “whole
picture in context” served to rebut the fabrication claim by
showing that it would have been unlikely that S.W. and C.W.
would notice the penis tattoo among the many tattoos all over
Heyen’s body. Second, the State believed that the tattoos, “in
conjunction with evidence of Heyen’s statements to the victims
that he was a member of a gang and had been to prison,” would
have given credence to the claims that he had threatened S.W.
and C.W. and that they took the threats as credible.

¶10 Counsel stipulated to the admission of a number of
photographs showing Heyen’s tattoos on his face, neck, arms,
and hands, but he specifically asked the court to exclude
“testimony or pictures of [the] swastika [tattoo] because it didn’t
have an effect on” C.W. or S.W. The district court essentially

(…continued)
surrounded by a circle, is one of the most important
and commonly used white supremacist symbols. . . . It is
the short ‘sun cross’ version of the Celtic Cross, surrounded
by a circle, that is more commonly used by white
supremacists . . . .” Celtic Cross, Anti-Defamation League,
https://www.adl.org/education/references/hate-symbols/celtic-
cross [https://perma.cc/6HFR-TK47].

5. “Supreme White Power” is a common prison tattoo. SWP,
Anti-Defamation League, https://www.adl.org/education/
references/hate-symbols/swp [https://perma.cc/YHZ6-ZBWD].

6. “88 is a white supremacist numerical code for ‘Heil Hitler.’ H
is the eighth letter of the alphabet, so 88 = HH = Heil Hitler.”
88, Anti-Defamation League, https://www.adl.org/education/
references/hate-symbols/88 [https://perma.cc/JTT6-ZFDP].

20180804-CA 5 2020 UT App 147
 State v. Heyen

agreed with Counsel in making the following rulings: First, there
was a “significant risk” in exposing the jury to “tattoos that
obviously symbolize white supremacist content” because the
“content of the tattoos“ could be “used in a way that would
detract the jury’s attention away from the facts of this case.”
Second, the victims could testify that they felt “threatened”
because Heyen had told them that his tattoos were “gang
tattoos.” Third, “the defense’s introduction of the evidence of the
penis tattoo [would] not open the door to the State being able to
introduce evidence of the other tattoos.” But the district court
cautioned, “[T]here may be other ways in which [the] defense
may open the door and it, obviously, needs to proceed carefully,
but the mere introduction of that [penis tattoo] evidence
wouldn’t do it.”

¶11 Although Heyen had grown out his facial hair and hair on
his head and wore a shirt and tie for trial, some of the tattoos on
his forehead, face, neck, and hands remained visible to members
of the jury.

¶12 During voir dire, the prospective jurors were asked about
the tattoos visible on Heyen’s body. None of the eight
individuals who were ultimately selected to sit on the jury
expressed that they knew the meaning of those tattoos. Six of the
eight jurors were expressly asked by Counsel if they knew the
meanings of the visible tattoos, and they all denied they did. The
remaining two jurors, while not explicitly asked about the
meaning of the tattoos in question, both expressed that the
tattoos would not impact their judgment: one said the tattoos
were in no way “troubling,” and the other said that she had
tattoos and had “no problem” with Heyen’s tattoos.

¶13 At trial, Counsel began his opening statement by
suggesting that his client was being unfairly targeted because of
his tattoos: “[Heyen] is a man who’s the easiest guy to blame.
Look at him. Tattoos on his face. Look at the tattoos on his arm,

20180804-CA 6 2020 UT App 147
 State v. Heyen

on his hands. He has tattoos up his sleeve. He’s the easiest man
to blame.” Both S.W. and C.W. testified that Heyen had tattoos
all over his body. And S.W. testified that Heyen had described
his tattoos as “prison tattoos and gang tattoos.” The State also
presented several photos of Heyen with his tattoos exposed—
including photographs of Heyen’s head that clearly showed his
SAC, broken cross, and 88 tattoos—that were admitted without
objection. Heyen then presented evidence of the penis tattoo,
specifically to make the point that it predated the rapes of C.W.
and S.W. And both victims testified that they did not see the
tattoo on Heyen’s penis.

¶14 The jury convicted Heyen on four counts of rape of C.W.,
one count of rape of S.W., and the three counts of distribution.
He was acquitted of the other charges. Heyen appeals. 7

ISSUE AND STANDARD OF REVIEW

¶15 The primary issue on appeal is whether Counsel was
constitutionally ineffective for not concealing Heyen’s tattoos
during trial. “A claim of ineffective assistance of counsel raised
for the first time on appeal presents a question of law, which we

7. While the notice of appeal does not distinguish between the
convictions for rape and distribution, it does not appear from
Heyen’s brief or the record that he is appealing the convictions
for distribution of a controlled substance. At trial, Heyen stated
that he “absolutely” believed that he “should be convicted of
selling marijuana.” And in his brief, Heyen states that he
“acknowledged in open court” that he was “guilty” of the
“crime . . . of distributing a controlled substance.” Furthermore,
Heyen’s brief states that “[t]his appeal is from a conviction for
rape.” Thus, because Heyen has not expressly challenged the
jury’s verdict on the distribution charges, we limit our analysis
to the five rape convictions.

20180804-CA 7 2020 UT App 147
 State v. Heyen

consider de novo.” State v. King, 2018 UT App 190, ¶ 11, 437 P.3d
425 (quotation simplified). 8

ANALYSIS

¶16 Heyen appeals his rape convictions, asserting that if
Counsel had advised or insisted that he cover the tattoos on his
face and neck, “there is a reasonable probability that . . . Heyen
would have been acquitted on tenuous allegations from
witnesses whose credibility was impeached.” Heyen specifically
argues that allowing him to appear “in court with his tattoos in
full view of jurors” “essentially nullified [the] victory” of the

8. Heyen also argues that he received ineffective assistance
because Counsel did not request a cautionary jury instruction
about the tattoos. But in the single paragraph in his appellate
brief in which he makes this argument, he provides no
explanation of what that instruction should have been. Without
this information, we cannot reach the conclusion that Heyen was
prejudiced. “To show prejudice in the ineffective assistance of
counsel context, the defendant bears the burden of proving that
counsel’s errors actually had an adverse effect on the
defense . . . . Proof of ineffective assistance of counsel cannot be a
speculative matter but must be a demonstrable reality.” State v.
Munguia, 2011 UT 5, ¶ 30, 253 P.3d 1082 (quotation simplified).
In short, by not providing us with a proposed cautionary
instruction, Heyen also cannot demonstrate what difference a
cautionary instruction would have made to the outcome of the
trial. See State v. Popp, 2019 UT App 173, ¶ 29, 453 P.3d 657 (“To
establish prejudice, [a defendant] must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (quotation simplified)).

20180804-CA 8 2020 UT App 147
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court’s ruling excluding his racist tattoos: “Instead of
shielding . . . Heyen from the prejudicial impact of the tattoos,
the defense paraded the racist imagery in front of jurors for four
days.” Thus, Heyen claims that Counsel “was ineffective in
usurping . . . Heyen’s right to prevent jurors from viewing the
racist tattoos.”

¶17 To succeed on a claim of ineffective assistance of counsel,
Heyen must demonstrate 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
[Heyen’s] claims under either prong.” See Honie v. State, 2014 UT
19, ¶ 31, 342 P.3d 182. Thus, we limit our analysis to Strickland’s
first prong because we conclude that Counsel’s performance was
not deficient.

¶18 To show deficient performance, Heyen must overcome
the presumption that Counsel’s decision not to cover the tattoos
“falls within the wide range of reasonable professional
assistance.” See Strickland, 466 U.S. at 689. “The court gives trial
counsel wide latitude in making tactical decisions and will not
question such decisions unless there is no reasonable basis
supporting them.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162
(quotation simplified). Moreover, “the question of deficient
performance is not whether some strategy other than the one
that counsel employed looks superior given the actual results of
trial. It is whether a reasonable, competent lawyer could have
chosen the strategy that was employed in the real-time context of
trial.” State v. Nelson, 2015 UT 62, ¶ 14, 355 P.3d 1031 (quotation
simplified). And “even where a court cannot conceive of a sound
strategic reason for counsel’s challenged conduct, it does not
automatically follow that counsel was deficient. . . . [T]he
ultimate question is always whether, considering all the
circumstances, counsel’s acts or omissions were objectively

20180804-CA 9 2020 UT App 147
 State v. Heyen

unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350;
accord State v. Ray, 2020 UT 12, ¶¶ 34–36, 469 P.3d 871.

¶19 Here, Heyen argues that leaving his face and neck tattoos
exposed during trial was unreasonable and that “there was no
reason to allow jurors to see them.” We disagree. There were
several obvious reasons for leaving the tattoos uncovered,
leading to the conclusion that it was not “objectively
unreasonable” for Counsel to allow the jury to see them. See
Scott, 2020 UT 13, ¶ 36.

¶20 First, because the jury was going to see a good number of
the tattoos anyway through admissible photographic evidence,
see supra ¶ 10, Counsel could reasonably have concluded that
covering Heyen’s tattoos would have been counterproductive.
Covering the tattoos could have left the jury with the impression
or room to speculate that the tattoos bore a more significant and
offensive meaning than the jury might have otherwise
presumed. In addition, Counsel may have feared that any
attempt to conceal (e.g., through cosmetics) the tattoos may have
been obvious to the jury and caused the jury to regard Heyen
with skepticism, as being untrustworthy, or as literally trying to
hide something. Thus, considering the circumstances, it was not
unreasonable for Counsel to favor transparency concerning the
existence of Heyen’s tattoos when evidence of them would be
presented at trial anyway.

¶21 Second, Counsel attempted to use Heyen’s tattoos
strategically by suggesting that Heyen was an easy target for
prosecution because of his tattoos and not because of the
evidence: “Look at him. Tattoos on his face. Look at the tattoos
on his arm, on his hands. He has tattoos up his sleeve. He’s the
easiest man to blame.” Counsel went on to say, “When you look
at the evidence and when you judge [Heyen], judge him not on
the ink on his skin but on the content of the evidence.” A
significant theme of Counsel’s argument at trial was that

20180804-CA 10 2020 UT App 147
 State v. Heyen

Heyen’s tattoos made him an easy target for blame from the
victims and attack by the prosecution. And the only viable way
for Counsel to make this argument was to acknowledge the
presence of Heyen’s numerous tattoos. Moreover, Counsel used
the tattoo on Heyen’s penis in an effort to discredit the two
victims, and Counsel may have thought the jury would have
viewed concealing Heyen’s other tattoos as inconsistent. Thus,
Counsel could reasonably conclude that any attempt to cover or
disguise Heyen’s tattoos in light of such a defense could have
been perceived as, at the very least, disingenuous by the jury. By
avoiding a counterproductive move, Counsel’s decision not to
cover Heyen’s tattoos cannot be viewed as “objectively
unreasonable.” See Scott, 2020 UT 13, ¶ 36.

¶22 Being upfront about the existence of the tattoos—to the
point of allowing them to be visible during voir dire—also
allowed Counsel to screen the prospective jurors to eliminate
those who might bear an overt bias against tattooed persons. By
allowing the prospective jurors to see some of Heyen’s visible
tattoos that the jury was going to see photographic evidence of
during the trial, Counsel could reasonably conclude that he had
effectively desensitized the jury to the impact of Heyen’s tattoos
from the earliest stages of the trial. This strategy was reasonable
because it allowed Counsel to select jury members who would
be dispassionate about Heyen’s tattoos from the outset.

¶23 Transparency about the existence of the tattoos, along
with their strategic use to paint Heyen as an easy target, was a
reasonable decision and, under the circumstances, “might be
considered sound trial strategy.” See Strickland, 466 U.S. at 689
(quotation simplified). “We view Counsel’s trial decision as a
quintessential question of judgment and strategy. We easily
could imagine this appeal being before us under the alternative
scenario in which Counsel instead had advised” Heyen to
conceal his tattoos. See State v. Fleming, 2019 UT App 181, ¶ 12,
454 P.3d 862. Indeed, under that scenario, Heyen might well

20180804-CA 11 2020 UT App 147
 State v. Heyen

have complained that Counsel’s decision had caused him to
come across as guileful before the jury. Because Heyen does not
show that Counsel’s actions were unreasonable given the
circumstances, he has not established the first Strickland prong.
Therefore, his ineffective assistance of counsel claim is
unavailing.

CONCLUSION

¶24 We reject Heyen’s claim of ineffective assistance because
reasonable counsel could have had strategic reasons for leaving
Heyen’s tattoos exposed during trial, and thus it was not
objectively unreasonable for Counsel to do so.

¶25 Affirmed.

20180804-CA 12 2020 UT App 147