State v. Bran

2021 UT App 62

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
GABRIEL RODOLFO BRAN,
Appellant.

Opinion
No. 20200318-CA
Filed June 10, 2021

Third District Court, Salt Lake Department
The Honorable Amber M. Mettler
No. 181902692

Hakeem Ishola and Carlos Navarro, Attorneys
for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellee

SENIOR JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred. 1

APPLEBY, Senior Judge:

¶1 Gabriel Rodolfo Bran appeals his conviction of object
rape, in connection with the inappropriate touching of one of his
massage therapy patients (Patient). Bran argues that the district
court committed plain error in several instances and that his trial
counsel (Counsel) provided constitutionally ineffective
assistance. We affirm.

1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
 State v. Bran

BACKGROUND 2

¶2 Patient was experiencing sciatic nerve pain and sought
treatment at the chiropractic clinic where Bran worked. Her first
massage therapy session with Bran lasted thirty minutes and
ended without incident. But during a second session, while Bran
was massaging Patient’s inner thigh, he slid his hand beneath
her underwear and his fingers between her labia. Patient
grabbed Bran’s arm, each of them briefly froze, and Bran
withdrew his hand, apologized, and left the room. Patient
dressed and tried to collect herself, then reported the incident to
the office manager and the owner of the clinic. She exited the
clinic through the back door, her face red from crying. After
calling her husband and sister to tell them what had happened,
she called the police. At the responding officers’ suggestion,
Patient went to an emergency room for a sexual assault forensic
exam. On the basis of Patient’s allegations, Bran was charged
with one count of object rape.

¶3 Patient testified at trial about the inappropriate touching.
She stated, “And then just before I knew it, his hand just slid
right under my underwear and then it—it slid right under my
underwear and then curved under and went—his fingers went
right between my labia.” Patient clarified she was not informed
that this kind of touching would be part of the massage, nor did
she consent to Bran touching her this way. Patient also testified
about Bran’s reaction after she stopped him: “He stood on the
side of the bed for a second. He said, ‘Oh, shit.’ Walked to the
foot of the bed, grabbed my feet and said, ‘I’m sorry. I
apologize.’”

2. “We recite the facts in a light most favorable to the jury
verdict. 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 (quotation simplified).

20200318-CA 2 2021 UT App 62
 State v. Bran

¶4 The State also presented testimony from two clinic
employees who saw or talked to Patient after the massage. The
clinic’s office manager reported that Patient was “almost
shaking” and “was crying” when reporting the incident. A
different massage therapist testified he saw Patient exit through
the back door “crying” and “hysteric.” The nurse who
conducted the sexual assault forensic exam similarly testified
that Patient was “quite tearful.”

¶5 As part of the State’s case, a forensic DNA analyst also
testified and discussed the results from Patient’s sexual assault
forensic exam. The analyst testified that the DNA test used was
sufficiently sensitive to detect touch DNA, which she described
as “the transfer of DNA just by physical touch,” where DNA is
“left behind after coming in contact with an object.” She
explained that the test performed revealed a DNA profile with
three male contributors—one major contributor and two minor
contributors. She also explained that the DNA testing excluded
Bran as the major contributor but the testing was inconclusive
regarding the minor contributors as a result of their low DNA
levels in the samples.

¶6 The defense presented its case on the second day of trial.
It called a separate DNA expert, who agreed with the State’s
expert that Bran was excluded as the major contributor but
further asserted that Bran could also be excluded as either of the
two minor contributors.

¶7 Later that day, the defense called its final witness—a
certified massage therapy instructor, who testified about
appropriate massage procedures and sheet-draping techniques,
as well as possible referred sensations that could occur during a
massage. 3 During Counsel’s direct examination of this witness,

3. A referred sensation is one “that is localized (i.e., experienced)
at a point different from the area stimulated. For example, when
(continued…)

20200318-CA 3 2021 UT App 62
 State v. Bran

the prosecutor notified the court that a juror was falling asleep
and suggested it might be a good time for a short break. Counsel
agreed, and the court announced a five-minute recess for jurors
to stretch, use the restroom, or get a “caffeinated drink.” After
the break, the witness examination continued, and there were no
further issues with sleepy jurors.

¶8 The jury ultimately found Bran guilty of the charged
offense. Bran now appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 Bran raises only one issue that he asserts was preserved
by an objection at trial: that the district court erroneously
allowed testimony regarding Patient’s crying. “We review the
legal determinations leading to an admissibility ruling for
correctness. We review the factual findings for clear error. And
we review the admissibility ruling itself for abuse of discretion.”
State v. McCullar, 2014 UT App 215, ¶ 21, 335 P.3d 900 (quotation
simplified).

¶10 Bran recognizes that the remainder of his arguments were
not preserved for appeal, but he invites us to consider each of
them under two exceptions to the preservation rule: plain error
and ineffective assistance of counsel. See generally State v. Johnson,
2017 UT 76, ¶ 18, 416 P.3d 443 (“A failure to preserve an issue in
the trial court generally precludes a party from arguing that
issue in an appellate court, absent a valid exception.”). “To
demonstrate plain error, a defendant must establish that (i) an

(…continued)
the elbow is struck, the mechanical stimulation of the nerve may
cause tingling of the fingers.” American Psychological Ass’n,
Referred Sensation, APA Dictionary of Psychology,
https://dictionary.apa.org/referred-sensation [https://perma.cc/
Z3KQ-ZDPG].

20200318-CA 4 2021 UT App 62
 State v. Bran

error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful . . . .” State v. Holgate, 2000 UT
74, ¶ 13, 10 P.3d 346 (quotation simplified). “Plain error is a
question of law reviewed for correctness.” State v. Smit, 2004 UT
App 222, ¶ 7, 95 P.3d 1203. Similarly, “[w]here, as here, a claim
of ineffective assistance of counsel is raised for the first time on
appeal without a prior evidentiary hearing, it presents a
question of law.” State v. Bryant, 965 P.2d 539, 542 (Utah Ct. App.
1998). “In order to bring a successful ineffective assistance of
counsel claim, appellant must show that his trial counsel’s
performance was deficient, in that it fell below an objective
standard of reasonableness, and that the deficient performance
prejudiced the outcome of the trial.” Id. (quotation simplified). 4

ANALYSIS

I. Patient’s Crying

¶11 The clinic office manager, the other massage therapist,
and the nurse each testified that Patient was crying, and Bran
maintains this evidence constituted inadmissible hearsay. Bran
asserts this issue was preserved; the State argues it was not and
we therefore should not consider it. Because this claim can be
resolved on its merits in the State’s favor, we choose to address
the alleged error without analyzing whether the issue was
preserved. See State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415
(“If the merits of a claim can easily be resolved in favor of the
party asserting that the claim was not preserved, we readily may

4. Bran additionally makes a cumulative error argument, but
because he ultimately does not show any individual errors here,
the cumulative error doctrine does not apply. See State v. Galindo,
2019 UT App 171, ¶ 17 n.4, 452 P.3d 519 (“There are no errors to
accumulate here, rendering the cumulative error doctrine
inapplicable in this case.”).

20200318-CA 5 2021 UT App 62
 State v. Bran

opt to do so without addressing preservation. This approach
accords with the purpose of our preservation rules, as it
prioritizes judicial economy without altering the incentive to
object at trial.” (quotation simplified)), petition for cert. filed, May
11, 2021 (No. 20210320).

¶12 The rule against hearsay applies to certain out-of-court
statements. See Utah R. Evid. 801(c), 802. In this context, the term
“statement” is “a person’s oral assertion, written assertion, or
nonverbal conduct, if the person intended it as an assertion.” Id.
R. 801(a). Thus, although the definition of a statement is
sufficiently broad to include nonverbal conduct, for that conduct
to be subject to the rule against hearsay, the person engaged in it
must have “intended it as an assertion.” Id.; see also R. Collin
Mangrum & Dee Benson, Mangrum and Benson on Utah Evidence
849 (2020–2021 ed.) (“If the conduct is not expressly assertive,
but instead only impliedly reflects the belief of the actor
regarding some fact in question, then the evidence would not fall
within the hearsay rule. In such cases, the evidence would be
admissible as circumstantial evidence of the fact in question.”).
Bran has not argued in the district court or on appeal that by
crying, Patient was making an assertion; thus, it was not error
for the district court to refuse to exclude the testimony as
hearsay. See State v. Hall, 946 P.2d 712, 716 (Utah Ct. App. 1997)
(“In this case, defendant makes no attempt to show that [the
victim] intended her behavior to be an assertion. We therefore
decline to address defendant’s argument regarding [the victim]’s
nonverbal conduct.”); see also Mangrum & Benson, at 849 (“The
rule is so worded as to place the burden upon the party claiming
that the assertive intention existed; ambiguous and doubtful
cases will be resolved against him and in favor of admissibility.”
(quotation simplified)).

II. Bran’s Apology

¶13 Bran argues Counsel was deficient for not moving to
exclude Patient’s testimony about his apology to her and that the

20200318-CA 6 2021 UT App 62
 State v. Bran

district court committed plain error in allowing it. Bran argues
that Patient’s testimony about his apology does not fit within
either the statement-against-interest exception or the residual
exception to the rule against hearsay. See generally Utah R. Evid.
804(b)(3), 807. But rule 801(d)(2) of the Utah Rules of Evidence
excludes from the definition of hearsay any statement made by
and offered against an opposing party. Id. R. 801(d)(2); see also
State v. Vargas, 2001 UT 5, ¶ 36, 20 P.3d 271. Therefore, the
testimony regarding Bran’s apology was not hearsay in the first
place 5 and the court did not commit error by failing to exclude it
on hearsay grounds. Likewise, Counsel would have had no
reason to think that an objection on hearsay grounds would be
successful, and thus, the failure to move to exclude the
testimony on hearsay grounds did not constitute ineffective
assistance of counsel. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d
546 (“Failure to raise futile objections does not constitute
ineffective assistance of counsel.”).

III. The Sleepy Juror

¶14 Bran argues that the district court should have questioned
the sleepy juror to ascertain whether the juror missed “vital
testimony” and that Counsel was deficient for not requesting
such questioning. In making these arguments, Bran overstates
precedent when he asserts that questioning the juror was
necessary in his case.

In the handful of Utah appellate cases
discussing a sleeping juror’s effect on a trial, one

5. Although Bran essentially concedes this point in his brief, he
also points out that a statement sometimes may be inadmissible
on other grounds even when it is not excluded as hearsay.
Nonetheless, Bran does not suggest what other grounds may
have supported a successful objection to the apology evidence.
Thus, this argument is unavailing.

20200318-CA 7 2021 UT App 62
 State v. Bran

principle predominates: discretion. Indeed,
handling a sleeping juror is so peculiarly within
the observation, province, and discretion of the
trial court that we should not interfere with the
ruling, except upon a clear abuse of discretion.

State v. Marquina, 2018 UT App 219, ¶ 29, 437 P.3d 628 (quotation
simplified), aff’d, 2020 UT 66, 478 P.3d 37. 6

¶15 Bran characterizes the issue as one in which “a juror
indisputably napped.” But no evidence in the record
demonstrates that the situation was so severe. During Counsel’s
questioning of the final witness at trial, the prosecutor simply
alerted the court that “a juror is falling asleep.” This present
tense statement suggests that the juror was struggling to stay
awake and does not demonstrate that the juror was sleeping at
all, let alone for any significant period. The attorneys and the
court agreed that a quick break would address the issue. And
nothing in the record suggests that the juror struggled to stay
awake after the break or that he was sleepy at any other point in
the trial. Based on these circumstances, we cannot say that the
court abused its discretion through its chosen remedy of a quick
recess to afford the jurors a chance to stretch, move around, and
get a drink. Because this remedy appears appropriate under the
circumstances here, we cannot say that Counsel rendered
ineffective assistance in failing to move for a different remedy. 7

6. Although the Marquina case cited here has since been affirmed
on appeal, the decision by the court of appeals was the law in
effect at the time of Bran’s trial, and it is therefore the lens
through which we evaluate his plain error and ineffective
assistance of counsel arguments.

7. We do, however, note the Utah Supreme Court’s recent
guidance on this issue in State v. Marquina, 2020 UT 66, 478 P.3d
(continued…)

20200318-CA 8 2021 UT App 62
 State v. Bran

IV. Directed Verdict

¶16 Bran argues the evidence was insufficient to support a
conviction for object rape and therefore Counsel provided
ineffective assistance in failing to move for a directed verdict and
the district court plainly erred when it did not sua sponte
dismiss the charge against him. A trial court will dismiss the
charges against a defendant “if the State did not establish a
prima facie case against the defendant by producing believable

(…continued)
37, aff’g 2018 UT App 219, 437 P.3d 628. Although the supreme
court’s opinion in Marquina was decided after Bran’s trial and
would not be applicable to his plain error or ineffective
assistance of counsel claims, it will be applicable in future cases
that concern the issue of an inattentive juror. In Marquina, the
supreme court clarified that “when a trial court receives a
reliable report of a sleeping or otherwise inattentive juror, the
court should proceed in a manner that is proportional to the
report” and “the court has flexibility, of course, in determining
what response would be proportional under the circumstances.”
Id. ¶ 38 (quotation simplified). The supreme court also stressed
that “it is important for the court to glean any facts relevant to
determining whether a juror has missed a portion of the trial,
and to make an informed decision about whether the juror
remains qualified to decide the case.” Id. The supreme court
further cautioned, “When a trial court encounters an issue
related to an inattentive juror, appellate courts can defer to the
trial court’s chosen course of action only to the extent that there
is a clear record of what occurred and the court states its
reasoning on the record.” Id. ¶ 39. Thus, in a case like the one
before us, the district court should make a detailed record
regarding the issue, for example, eliciting information from the
person reporting the drowsy juror about the extent of the
observed juror inattention and spelling out its reasoning for the
chosen course of action in remedying the issue.

20200318-CA 9 2021 UT App 62
 State v. Bran

evidence of all the elements of the crime charged.” State v.
Emmett, 839 P.2d 781, 784 (Utah 1992) (quotation simplified). For
a conviction of object rape, the State was required to prove that
Bran,

without the victim’s consent, cause[d] the
penetration, however slight, of the genital or anal
opening of another person who is 14 years of age
or older, by any foreign object, substance,
instrument, or device, including a part of the
human body other than the mouth or genitals, with
intent to cause substantial emotional or bodily pain
to the victim or with the intent to arouse or gratify
the sexual desire of any person.

Utah Code Ann. § 76-5-402.2 (LexisNexis 2017).

¶17 Patient’s testimony regarding the incident provides
believable evidence of the consent and penetration elements. 8

8. Bran appears to suggest that Patient’s testimony was not
believable because the DNA evidence “all but exonerated” him.
But this mischaracterizes the evidence. The DNA evidence
presented by the State indicated that Bran could be ruled out as
the major contributor in the DNA sample but could not be ruled
out as one of the two minor contributors because at “those low
levels, it can be uncertain as to if everyone is fully represented.”
The defense’s DNA expert came to a different conclusion and
asserted that Bran could be eliminated as either of the minor
contributors. Thus, the experts did not agree on this issue.
Furthermore, the defense’s DNA expert testified there was no
guarantee that if Bran had touched Patient as alleged, his touch
DNA would have been found on the samples tested. Thus, the
expert essentially acknowledged that even if Bran could be
eliminated as one of the minor contributors, that would not
necessarily prove he did not touch Patient as she alleged.

20200318-CA 10 2021 UT App 62
 State v. Bran

And her testimony of Bran’s other actions and reactions could
support a jury’s finding of the required intent. See Emmett, 839
P.2d at 784 (“While evidence of intent is usually not susceptible
to direct proof, it can often be inferred from circumstance.”);
State v. James, 819 P.2d 781, 789 (Utah 1991) (“It is well
established that intent can be proven by circumstantial
evidence.”). Thus, Patient’s testimony alone would be sufficient
evidence to overcome any motion for a directed verdict, had it
been made. 9 Where a directed verdict based on insufficient
evidence would not have succeeded in this case, it was not
error—plain or otherwise—for the district court to fail to dismiss
the charges against Bran, nor was it ineffective assistance for
Counsel to not seek a directed verdict, cf. State v. Kelley, 2000 UT
41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objections does not
constitute ineffective assistance of counsel.”).

V. Lesser Included Offense

¶18 Finally, Bran argues that Counsel provided ineffective
assistance by failing to request a jury instruction on the lesser
included offense of sexual battery and that the district court
plainly erred by not providing such an instruction even without
the request. First, Bran does not attempt to show there was a
basis for a lesser-included-offense instruction on sexual battery;
that is, he does not explain how “there is a rational basis for a
verdict acquitting the defendant of the offense charged and
convicting him of the included offense,” see Utah Code Ann.
§ 76-1-402(4) (LexisNexis 2017). Furthermore, “even when there
is a basis for a lesser-included-offense instruction, counsel can
reasonably decide not to request one.” State v. Hull, 2017 UT App

9. Bran’s argument identifies other pieces of evidence that he
sees as supportive of his version of events. 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.

20200318-CA 11 2021 UT App 62
 State v. Bran

233, ¶ 16, 414 P.3d 526. “[C]ounsel could reasonably pursue an
‘all or nothing defense’ when, in light of the weaknesses in the
State’s evidence of the case, it would be reasonable for counsel to
conclude that submitting a lesser included offense instruction
would obviate a defendant’s reasonable chances of a full
acquittal.” State v. Powell, 2020 UT App 63, ¶ 43, 463 P.3d 705.
Furthermore, “counsel does not perform deficiently by failing to
request a lesser included offense instruction that is inconsistent
with the defense presented at trial.” Id.

¶19 Counsel may have concluded the State’s case against Bran
was weak (indeed, Bran expresses the same viewpoint on
appeal) and reasonably elected an all-or-nothing defense.
Additionally, a jury instruction on sexual battery would have
been inconsistent with Bran’s theory of the case below—that he
did not touch Patient inappropriately but, instead, she felt
referred sensations from appropriate massage procedures. For
these reasons, Counsel did not perform deficiently by not
requesting an instruction on sexual battery. And where Counsel
reasonably did not request such an instruction, the district court
did not commit plain error by failing to give a lesser-included-
offense instruction on sexual battery that was never requested.

CONCLUSION

¶20 The district court did not err by allowing testimony
regarding Patient’s crying. Nor has Bran shown that the district
court committed plain error or that Counsel rendered ineffective
assistance relating to the other issues raised. We therefore affirm.

20200318-CA 12 2021 UT App 62