State v. Ayala

2022 UT App 1

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JULIO AYALA,
Appellant.

Opinion
No. 20170928-CA
Filed January 6, 2022

Second District Court, Ogden Department
The Honorable Noel S. Hyde
No. 151901249

Cherise M. Bacalski and Emily Adams, Attorneys
for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGE JILL M. POHLMAN and SENIOR JUDGE KATE APPLEBY
concurred. 1

MORTENSEN, Judge:

¶1 From 2010 to 2013, Julio Ayala was involved in multiple
automobile accidents while driving his truck and trailer. Ayala
filed claims with several insurance companies, and those
insurers paid for, among other things, numerous chiropractic
treatments and property damage claims. Ayala later admitted to
a private investigator that he had not been injured in the
accidents but nonetheless believed he had a right to receive

1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
 State v. Ayala

insurance benefits. After Ayala was criminally charged, the case
was tried to the bench, and the court convicted Ayala on one
count of a pattern of unlawful activity and one count of felony
insurance fraud. Ayala appeals, claiming (1) that the trial court
committed plain error when it convicted him based on
insufficient evidence that his crime met the threshold for a third-
degree felony and (2) that his counsel was ineffective for failing
to call an expert witness to opine on interpretation errors in
Ayala’s interview with the private investigator. We affirm.

BACKGROUND

¶2 Between January 2010 and July 2012, Ayala was involved
in five automobile accidents. In each accident, he was rear-ended
by another vehicle. For three of those accidents—the first in
January 2010, the second in December 2010, and the third in
April 2012—Ayala filed claims with his insurance company,
which in turn paid for chiropractic care for him and damage to
his vehicle and trailer.

¶3 In March 2013, Ayala had another similar accident. When
he again sought insurance benefits for alleged damage to his
trailer, the insurance company sent a private investigator to
interview him. Because Ayala speaks primarily Spanish, the
private investigator provided an interpreter (Interpreter) to relay
questions to Ayala and his attorney. Ayala’s attorney, who was
present during the interview, spoke English and Spanish and
interjected several times to aid in and clarify the interpretation of
the questions the investigator asked Ayala.

¶4 During the interview, Ayala admitted that he had not
been injured in any of the accidents but still had submitted
claims for chiropractic care, which his insurer then paid. Ayala
stated that his insurance coverage entitled him to chiropractic
treatments following the accidents, even if he had not been

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 State v. Ayala

injured. Ayala agreed with the private investigator that he had
“received treatment for no reason” and added, “[S]ince I am
covered because of my insurance and that’s my right.” At the
end of the interview, Ayala affirmed that he had understood all
the investigator’s questions.

¶5 A complaint was made with the Insurance Fraud Division
of the Utah Insurance Department, and the State charged Ayala
with one count of a pattern of unlawful activity and two counts
of insurance fraud. The pattern of unlawful activity count was
connected to Ayala’s insurance claims after the January 2010
accident, the December 2010 accident, and the April 2012
accident. The first insurance fraud count against Ayala—a third-
degree felony—was related to his insurance claim for
chiropractic care following the April 2012 accident. The second
fraud count—a class-A misdemeanor—was related to Ayala’s
insurance claim for damage to his trailer following the March
2013 accident.

¶6 At a bench trial, where Ayala was represented by a
different attorney, one of his arguments was that Interpreter
“did not properly interpret during the interview,” which
resulted in Ayala “seeming to say that he had never been
injured.” But “[i]nstead of hiring an expert interpreter to testify
about the problems with the interpretation,” Ayala’s trial
counsel (Counsel) “chose to cross-examine” Interpreter.

¶7 The court convicted Ayala of engaging in a pattern of
unlawful activity. Specifically, it concluded that Ayala had filed
claims for chiropractic treatment following the January 2010
accident, the December 2010 accident, and the April 2012
accident, despite the fact that he had not been injured in those
accidents. The court noted that when the private investigator
asked Ayala about these three accidents, Ayala admitted—
according to Interpreter—that he had not been injured and

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believed it was his right to pursue insurance benefits even if he
had not been injured.

¶8 The trial court also convicted Ayala on the felony
insurance fraud count. The court again relied on the fact that
Ayala had claimed and received insurance benefits following the
April 2012 accident, despite having not been injured in that
accident. Included in evidence relevant to this charge were claim
forms showing that Ayala’s chiropractor billed Ayala’s insurer
more than $1,900 for treatment.

¶9 The court, however, acquitted Ayala on the misdemeanor
insurance fraud count. Although the State presented evidence
that Ayala received multiple insurance payments for what
appeared to be the same damage to his trailer, the court
concluded that the State did not present evidence sufficient to
convict him.

¶10 Ayala appealed. As part of his appeal, Ayala submitted a
motion under rule 23B of the Utah Rules of Appellate Procedure
in which he requested remand for entry of findings of facts to
support his claim that Counsel was ineffective for “failing to call
expert witnesses” who “would have testified about the
numerous” interpretation errors in Ayala’s interview. After this
court granted that motion, both parties submitted supplemental
briefing to the trial court, which in turn conducted a hearing and
entered supplemental findings. The supplemental findings were
based on (1) the testimony of Counsel and (2) the testimonies
and report of two experts regarding interpretation issues
surrounding the insurance investigator’s interview with Ayala.

¶11 With regard to Counsel’s awareness of the interpretation
issues, the court found the following on remand:

• Counsel was aware of the deficiencies with the
interpretation but believed he could rely on his

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own fluency in Spanish to address any of its
problems through cross-examination rather than
calling on an expert to testify.
• Counsel believed that the testimonies from several
chiropractors would objectively establish that
Ayala was injured, and he considered the problems
with the interpretation a “side-issue.”
• In retrospect, Counsel wished he had called an
expert to testify about issues with the
interpretation.

¶12 About the testimonies of the two experts, the court made
the following findings:

• The two expert interpreters’ evaluations of the
interview were based solely on the transcripts, and
they did not listen to an audio recording of the
interview.
• The first expert interpreter “acknowledged that a
good portion of language is non-verbal. Vocal tone,
eye contact, body language, and gestures do not
come across in written translation, and an
interpreter sitting next to the individual for whom
they are interpreting may more easily be able to
determine if the individual is understanding the
interpretation.”
• The second expert interpreter conceded that “he
[was] missing some context and nuances that
[could] not be ascertained solely from reviewing
the transcript.”
• The expert interpreters pointed out some words in
the interpretation that could have been substituted
with more accurate terms. The first expert noted
that for the English word “injury,” the Interpreter
used Spanish language that typically refers “to
hurt feelings or actual physical injury, depending

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on the context.” The expert explained that it would
have been more accurate to employ different
Spanish language that is “commonly used to
describe a more serious injury.”
• The second expert interpreter noted that when
Ayala talked about his “right” to receive insurance
benefits, a more accurate interpretation would
have conveyed that Ayala believed he was
“deserving” of receiving the benefits.
• Although the two expert interpreters “were
credible” and their “expertise unquestioned[,] . . .
many of the objections to the quality of [the]
interpretation were more technical than practical.”
• “The hearing testimony and report of the experts
did not persuade the court that [the] interpretation
was misunderstood by [Ayala] to any substantial
degree, or that [Ayala’s] responses during the
insurance investigation were so misperceived and
misstated as to obscure their essential meaning.”

¶13 The court also made findings relevant to deficient
performance and prejudice:

• Counsel was familiar with the facts of the case and
could weigh the strengths and weaknesses of “the
State’s case as a basis for his conclusion that he
could effectively cross-examine [Interpreter]
instead of hiring an expert interpreter.”
• Although testimony Counsel elicited from
Interpreter on cross-examination was “not as
technical and detailed” as the testimonies provided
by the expert interpreters, it was nevertheless
“comparable.”
• The testimony Counsel elicited from Interpreter
“mirror[ed]” the deficiencies of the interpretation

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that were identified by the two expert interpreters,
including the correct word for injury.

¶14 Although the court characterized them as findings of fact,
it also made a number of determinations that are more akin to
conclusions of law, 2 including the following:

• “There [was] insufficient evidence to establish that
by not having an expert interpreter testify at trial,
[Counsel’s] performance as trial counsel fell below
an objective standard of reasonableness.”
• Counsel reasonably concluded that the case turned
on the testimonies of the chiropractors that Ayala
was injured because if Ayala was in fact injured,
“then any misinterpreted statements during the
interview were irrelevant.”
• The testimonies of the two expert interpreters did
“not significantly enhance the evidence presented
at trial as to the weakness of the interpretation of

2. On the rule 23B remand, we asked the trial court to limit itself
to making findings of fact. But of its own accord, the trial court
expanded this mandate to encompass making legal conclusions.
We clarify that the purpose of a rule 23B remand is for a trial
court to “conduct hearings and take evidence as necessary to
enter the findings of fact necessary to determine the claim of
ineffective assistance of counsel. . . . The trial court will enter
written findings of fact concerning the claimed deficient
performance by counsel and the claimed prejudice suffered by
appellant as a result, in accordance with the order of remand.”
See Utah R. App. P. 23B(e). Once the trial court completes these
supplemental proceedings under a rule 23B remand, its findings
of fact are transmitted to the appellate court, see id. R. 23B(f),
which in turn makes legal conclusions about the “determination
of a claim of ineffective assistance of counsel,” see id. R. 23B(a).

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 State v. Ayala

the insurance investigation interview by
[Interpreter].”
• “[T]here [was] insufficient evidence to conclude
that the outcome of the trial would have been
different had an expert interpreter testified at
trial.”

ISSUES AND STANDARDS OF REVIEW

¶15 Ayala raises two issues. He first asserts the trial court
plainly erred in ruling that the State’s insurance fraud charge
rose to the level of a third-degree felony. Ayala specifically
argues that the court erred because the State did not present
evidence sufficient to show that he received at least $1,500 in
fraudulent insurance benefits—the minimum threshold for a
third-degree felony. 3 Ayala, believing the issue is unpreserved,
asks that it be reviewed for plain error. But as our supreme court
recently clarified, challenges to sufficiency need not be expressly
preserved in a bench trial context because the trial court
necessarily determines sufficiency in making its conclusion as to
guilt. See State v. Jok, 2021 UT 35, ¶ 18, 493 P.3d 665 (“[U]nder
rule 52(a)(3) [of the Utah Rules of Civil Procedure], a defendant
is not required to make a motion to preserve a sufficiency of the
evidence claim at a bench trial. Moreover, a sufficiency of the
evidence claim is effectively preserved by the nature of a bench

3. In the issues section of his brief, Ayala argues that the court’s
error arose from its failure to make a factual finding that Ayala
received at least $1,500 in connection with insurance fraud. But
the substantive arguments under that section focus solely on the
sufficiency of the evidence. We therefore decline to address
whether the court was indeed required to make an explicit
factual finding that Ayala fraudulently received more than
$1,500 and instead focus on the sufficiency of the evidence.

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 State v. Ayala

trial and does not require making a specific motion.”). Therefore,
the lack of preservation is of no import here because we review a
claim of insufficient evidence at a bench trial for clear error—the
proper standard of review—by default. See State v. Titus, 2012
UT App 231, ¶ 2, 286 P.3d 941 (“Because we are asked to review
the results of a bench trial for sufficiency of evidence, we will
only reverse if the trial court’s findings were clearly erroneous.”
(cleaned up)). And “when reviewing a bench trial for sufficiency
of the evidence, we must sustain the trial court’s judgment
unless it is against the clear weight of the evidence, or if we
otherwise reach a definite and firm conviction that a mistake has
been made.” State v. Gordon, 2004 UT 2, ¶ 5, 84 P.3d 1167
(cleaned up). “An example of an obvious and fundamental
insufficiency is the case in which the State presents no evidence
to support an essential element of a criminal charge.” State v.
Prater, 2017 UT 13, ¶ 28, 392 P.3d 398 (cleaned up).

¶16 Second, Ayala contends that he received ineffective
assistance when Counsel did not call an expert to testify that the
interpretation provided during Ayala’s interview was unreliable.
“In ruling on an ineffective assistance of counsel claim following
a rule 23B hearing, we defer to the trial court’s findings of fact
. . . .” State v. King, 2017 UT App 43, ¶ 13, 392 P.3d 997 (cleaned
up).

ANALYSIS

I. Evidence Shows That Ayala Received
More Than $1,500 in Benefits

¶17 Ayala asks us to conclude that the trial court wrongly
convicted him of felony insurance fraud because the evidence
did not show that he received at least $1,500 in fraudulent
insurance benefits—the minimum threshold for a third-degree
felony. See Utah Code Ann. § 76-6-521(1)(b), (2)(b) (LexisNexis

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Supp. 2021); see also id. § 76-10-1801(1)(c) (2017). In other words,
Ayala contends that the court erred in convicting him of a third-
degree felony because the evidence showed at most he
benefitted less than $1,500 from the allegedly fraudulent
insurance claims.

¶18 In the context of a bench trial, when a defendant contends
the evidence was insufficient to support a conviction, we review
the court’s findings for clear error. State v. Briggs, 2008 UT 75,
¶ 10, 197 P.3d 628. And “even if evidence is insufficient, we will
not find plain error unless the insufficiency was obvious and
fundamental.” State v. Prater, 2017 UT 13, ¶ 28, 392 P.3d 398
(cleaned up). “While it is difficult for the court on appeal to
dictate when an evidentiary defect was apparent to the trial
court, there is a certain point at which an evidentiary
insufficiency is so obvious and fundamental that it would be
plain error for the trial court not to discharge the defendant.”
State v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346.

¶19 We conclude that the court did not commit error, because
there was evidence sufficient to show that Ayala received nearly
$2,000 in insurance benefits in connection with his fraudulent
insurance claim. Specifically, defense exhibit 5 (which Ayala
produced at trial) included six claim forms for chiropractic
treatments received from April 20 to May 18, 2012, in connection
with the April 2012 accident and claim. 4 Exhibit 5 showed that
Ayala’s chiropractor billed Ayala’s insurer for $368.50, $277.80,
$387.10, $387.10, $189.10, and $387.10—a total of $1,996.70.
Accordingly, we conclude there is sufficient evidence to support
Ayala’s third-degree-felony conviction.

4. Ayala introduced this exhibit at trial in an attempt to show
that these treatments were related to actual injuries sustained in
the April 2012 accident, an argument the trial court rejected.

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II. Rule 23B Remand

¶20 Next, Ayala contends that he received ineffective
assistance because Counsel did not call an expert witness on
Spanish-to-English interpretation to challenge the accuracy of
the interpretation at Ayala’s interview.

¶21 To establish ineffective assistance of counsel, Ayala “must
show 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.” See State v.
Wright, 2021 UT App 7, ¶ 52, 481 P.3d 479 (cleaned up). “Because
failure to establish either prong of the test is fatal to an
ineffective assistance of counsel claim, we are free to address
[Ayala’s] claims under either prong.” See Honie v. State, 2014 UT
19, ¶ 31, 342 P.3d 182.

¶22 Here, because we conclude that Ayala’s defense was not
prejudiced by Counsel’s alleged deficient performance, we limit
our analysis to the second prong. “Counsel’s performance is
prejudicial if the defendant can demonstrate that there is a
reasonable probability that the outcome of his or her case would
have been different absent counsel’s error. Accordingly, the
defendant must do more than simply show that the errors had
some conceivable effect on the outcome of the proceeding.”
Wright, 2021 UT App 7, ¶ 54 (cleaned up).

¶23 On rule 23B remand, the trial court found that Counsel
was familiar with the facts of the case and was confident in his
ability to cross-examine Interpreter on his own, and thus he
would not need to hire an expert. The trial court found that
Counsel did in fact cross-examine Interpreter about the very
deficiencies identified by the expert interpreters. Specifically, the
trial court found (1) that even though the testimony Counsel
elicited from Interpreter was “not as technical and detailed” as
the testimonies provided by the experts, it was nevertheless

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“comparable” and (2) that the testimony Counsel elicited from
Interpreter “mirror[ed]” the deficiencies identified by the two
experts. In other words, Counsel’s cross-examination of
Interpreter elicited the same information about the problematic
aspects of the interpretation as would have been offered by the
two experts. Thus, it is clear to us that the testimonies of the
experts about the quality of interpretation—had they been
included at trial—would not have had an impact on the
proceeding’s outcome for the simple reason that their
testimonies would have added nothing substantive to the
testimony about the interpretation deficiencies Counsel elicited
on his own.

¶24 Moreover, the problems with the interpretation (as
identified by the experts and revealed during Counsel’s cross-
examination of Interpreter) did not materially change the weight
of Ayala’s admissions. None of the alleged relevant errors or
technical defects in the interpretation shows that Ayala
misunderstood the questions asked of him such that they caused
him to mistakenly admit that he sought medical attention even
though he was not injured. As the trial court found on remand,
“many of the objections to the quality of [the] interpretation
were more technical than practical,” the interpretation was not
“misunderstood by [Ayala] to any substantial degree,” and
Ayala’s “responses during the insurance investigation were [not]
so misperceived and misstated as to obscure their essential
meaning.” For example, that a synonym was used for
“treatment” or “injury” or “right” does not change the overall
gist of Ayala’s statements that he sought chiropractic care
because he thought he had benefits coming to him under his
insurance policy even though he had not actually sustained
physical harm. So although it may be true that the interpretation
was inelegant in that it suffered from certain deficiencies and a
lack of nuance, any problems with it were not so profound as to
“undermine[] our confidence in the proceeding’s outcome.” See
State v. Mendoza, 2021 UT App 79, ¶ 18, 496 P.3d 275. Thus, we

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conclude that the expert interpreters’ testimonies do nothing to
change the conclusion that Ayala understood the essential
meaning of the questions he was asked by the insurance
investigator.

¶25 Our confidence in the verdict is not undermined, because
we conclude that there is not a reasonable probability that the
outcome of the case would have been different had the
interpretation experts testified during trial. Accordingly, Ayala’s
ineffective assistance claim fails.

CONCLUSION

¶26 The court did not err in convicting Ayala of felony
insurance fraud, because sufficient evidence was presented at
trial that Ayala received more than $1,500 in insurance benefits
in connection with the fraudulent claim related to that count.
Further, Ayala’s claim of ineffective assistance is unavailing
because any errors in the interpretation did not have a
substantive impact such that they undermine confidence about
whether the same verdict would have resulted.

¶27 Affirmed.

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