State v. Sisneros

2016 UT App 209

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
FRANKIE JUSTIN SISNEROS,
Appellant.

Opinion
No. 20140778-CA
Filed October 14, 2016

Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 131904336

John B. Plimpton, Neal G. Hamilton, and Alexandra
S. McCallum, Attorneys for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.

TOOMEY, Judge:

¶1 In this appeal we must decide whether the district court
denied Frankie Justin Sisneros (Defendant) due process by
denying his motion to strike a show cause hearing and whether
it abused its discretion in denying a continuance of the same
hearing. We conclude it did not and affirm.
 State v. Sisneros

BACKGROUND1

¶2 Between 2011 and 2013, in three separate cases, Defendant
was convicted of escape, possession of a controlled substance
with intent to distribute, and attempted robbery and retaliation
against a witness or victim, all third degree felonies. Following
the conviction for attempted robbery and retaliation against a
witness or victim in 2013, the district court placed Defendant on
zero-tolerance probation. The terms of Defendant’s probation
included orders to violate no laws and to refrain from possessing
or consuming any alcohol.

¶3 Around 5:30 in the morning on January 19, 2014,
Defendant went to the home of his ex-wife’s (Ex-wife) mother
(Mother) to retrieve some work tools. Accounts differ as to what
happened next. According to Ex-wife and Mother, Defendant
came to the door, pushed past Mother, and crossed the living
room to where Ex-wife was sleeping on the couch. Defendant
started yelling at Ex-wife and hit her. Defendant grabbed her by
the hair, the two started ‚wrestling,‛ and Defendant again hit
Ex-wife. Defendant also pushed Ex-wife onto Mother’s coffee
table, which broke. As a result of the scuffle, Ex-wife suffered a
swollen lip and bloody nose. Defendant grabbed Ex-wife’s keys
to their jointly owned vehicle and drove it away.

¶4 According to Defendant, he arrived at Mother’s house
and she allowed him inside. He woke Ex-wife to ask for her
keys, and she started hitting him. Defendant claims Ex-wife and
Mother ‚wrapped‛ and hit him. They ripped off his shirt and he
ran out with the keys and left in the vehicle.

1. ‚On appeal from a jury verdict, we view the evidence and all
reasonable inferences in the light most favorable to that verdict
and recite the facts accordingly.‛ State v. Dozah, 2016 UT App 13,
¶ 2, 368 P.3d 863. ‚We include conflicting evidence as relevant
and necessary to understand the issues on appeal.‛ Id.

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 State v. Sisneros

¶5 Mother called the police, who arrived to investigate. A
police dispatcher advised a patrol officer that Defendant had
been seen driving down the highway and described the vehicle.
Based on this information, the officer stopped Defendant and
questioned him. According to the officer, Defendant was
belligerent and smelled of alcohol. The officer asked Defendant
if he had been drinking, and Defendant responded that ‚he had
a few beers.‛ The officer took Defendant to the police station and
submitted him to a breathalyzer test, which revealed a blood
alcohol content of 0.114 grams.2

¶6 On January 22, 2014, Adult Probation and Parole (AP&P)
requested that the district court issue an order to show cause
why Defendant’s probation should not be revoked. In support of
this motion, AP&P alleged that Defendant had violated the
terms of his probation by committing, among other things,
domestic violence assault, assault, and driving under the
influence of alcohol. The court issued the Order to Show Cause
that same day and set a hearing for March 21, 2014. The hearing
was continued to May 16, then to June 27, and finally to August
1, 2014.

¶7 On June 12, 2014, Defendant’s counsel sent a subpoena to
the North Salt Lake Police Department (NSLPD), requesting the
‚production of all field cards[3] and video‛ related to the

2. Utah Code section 41-6a-502 prohibits driving or being in
‚actual physical control of a vehicle‛ with a blood alcohol
concentration of 0.08 grams or greater. Utah Code Ann. § 41-6a-
502 (LexisNexis 2014).

3. A field card ‚is a limited informational report filled out by
the police offer. The report contains information on suspicious
persons questioned. It includes descriptions of [the]
individual and vehicle, time and place of contact, and reason for
suspicion.‛ Field Interrogation Reports, Utah Dep’t of Admin.
(continued…)

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 State v. Sisneros

allegations supporting the Order to Show Cause. The NSLPD
responded with a letter indicating there were ‚no field cards
associated with this case‛ and ‚no video involving Mr.
Sisneros.‛ In mid-July, Defendant filed a motion to strike the
show cause hearing. Defendant explained he was ‚not asking to
strike the [Order to Show Cause]‛; rather, he requested to
‚merely strike the hearing and track the new charges[4] until they
resolve, and this issue is fully and fairly litigated.‛ Defendant
asserted that because the NSLPD had not provided the
requested documents, he might not ‚*have+ available to him all
the evidence pertaining to the underlying charges at issue.‛
Specifically, he explained that there was a ‚testy exchange‛
during a follow-up telephone call between counsel’s secretary
and the NSLPD, and that it was therefore ‚entirely possible that
videos might exist,‛ but that the NSLPD would not look for
them ‚because they were annoyed with defense counsel’s
secretary.‛ Defendant argued that holding the hearing ‚before
the resolution of these concerns regarding NSLPD would raise
due process concerns‛ because he had ‚no confidence that he
ha[d] received, or [would] receive, all of the information due
process requires.‛

¶8 The district court did not rule on Defendant’s motion to
strike but held the hearing on August 1, 2014. At the outset of
the hearing Defendant’s counsel stated,

(…continued)
Servs., http://archives.utah.gov/recordsmanagement/grs/mungrs
-21.html#30245 [https://perma.cc/95UU-SMW7].

4. The State did not file an Information with new charges based
on these events. The hearing was held on AP&P’s allegations of
probation violations.

20140778-CA 4 2016 UT App 209
 State v. Sisneros

I know we’ve made a record of my previous
objection but there is a new thing[] that [has] come
up.
We sent out a subpoena in July, the 2nd,
asking for North Salt Lake to produce their policies
and procedures. Particularly, recording—having
video in patrol vehicles and what officers are
required to do if their video is not working. That
was due mid-July. We have not seen hide nor hair
from that subpoena.

Counsel confirmed with the court that this request was ‚in
[reference to] the same DUI,‛ and the court responded that it
would ‚consider all of that if we . . . have to even get to [that]
charge.‛

¶9 During the hearing, the NSLPD officer who stopped
Defendant on the highway testified that Defendant was
aggressive and belligerent, that he ‚could smell the odor of
alcohol on [Defendant],‛ and that Defendant told him ‚that he
had a few beers.‛ Following direct examination of the officer,
defense counsel declined to cross-examine him because of the
‚evidentiary‛ objection he had made at the outset of the hearing.
The State subsequently moved to withdraw the DUI allegation to
amend the Order to Show Cause ‚just to include the allegation
that [Defendant] consumed alcohol, not that he was DUI.‛ The
district court then questioned the officer, asking him about the
video equipment in the police vehicle. After explaining that the
video equipment ‚flicks itself on‛ when the overhead lights are
activated, the officer testified that he had assumed the recording
equipment ‚was on‛ during the stop. But when the officer
personally pulled out the DVD that should have contained the
recording, he ‚could never find the video.‛ Consequently, the
officer believed the video equipment never turned on.

¶10 During the hearing, Ex-wife and Mother also testified. Ex-
wife gave her account of the assault, see supra ¶ 3, and testified

20140778-CA 5 2016 UT App 209
 State v. Sisneros

she could tell Defendant was intoxicated. She confirmed she had
seen Defendant intoxicated many times during their twelve-year
relationship and described Defendant’s typical appearance and
behavior when he is intoxicated. Specifically, she testified that he
had ‚slurred speech,‛ ‚bloodshot red eyes,‛ was ‚belligerent,‛
and if also angry when intoxicated, would ‚pace back and
forth.‛ Ex-wife further testified that she could tell Defendant was
intoxicated the morning of the assault because he had red eyes,
he was stumbling and pacing back and forth, smelled like
alcohol, and ‚was belligerent.‛ Mother testified she tried to
break up the scuffle and Defendant kicked her in the leg.

¶11 Defendant also testified at the hearing and gave his
account of his interaction with Ex-wife and Mother. See supra ¶ 4.
He testified that a friend drove him to Ex-wife’s house. He
denied drinking alcohol the night before the incident and denied
telling the officer that he had been drinking. But when
questioned about the breathalyzer test, he acknowledged that he
‚blew a .114‛ ‚*i+f it says I did.‛

¶12 Following Defendant’s testimony, defense counsel asked
the court for a continuance so that he could contact Defendant’s
friend as a witness. Counsel acknowledged that he ‚didn’t pay
as much attention to her as [he] probably should have‛ but ‚she
might have been in the apartment and seen what occurred.‛ The
district court denied the request because the hearing had already
‚been continued repeatedly.‛

¶13 At the conclusion of the hearing, the district court found
that Defendant violated his probation by ‚having consumed
alcohol‛ and ‚having committed [domestic violence] assault
against [Ex-wife+.‛ The court stated it could ‚come to those two
conclusions . . . based on [Ex-wife’s+ testimony alone. And then
. . . the other testimony just corroborates it.‛ The court then
revoked Defendant’s probation and sentenced him to prison for
‚all of his cases.‛ Defendant appeals.

20140778-CA 6 2016 UT App 209
 State v. Sisneros

ISSUES AND STANDARDS OF REVIEW

¶14 On appeal, Defendant contends the district court violated
his due process rights by denying his motion to strike the show
cause hearing and holding the hearing because it ‚deprived
[Defendant] of an opportunity to present documentary evidence
that could have helped his case.‛ ‚Constitutional issues,
including questions regarding due process, are questions of law
that we review for correctness. . . . However, because [these
questions require] the application of facts in the record to the
due process standard, we incorporate a clearly erroneous
standard for the necessary subsidiary factual determinations.‛
Salt Lake City Corp. v. Jordan River Restoration Network, 2012 UT
84, ¶ 47, 299 P.3d 990 (omission and alteration in original)
(citation and internal quotation marks omitted).

¶15 Defendant also contends the district court erred in
denying his ‚request for a continuance [during the hearing] to
locate . . . a witness who may have corroborated *Defendant’s+
testimony.‛ ‚*T+he granting of a continuance is at the discretion
of the trial judge, whose decision will not be reversed by [an
appellate] [c]ourt absent a clear abuse of that discretion.‛ State v.
Creviston, 646 P.2d 750, 752 (Utah 1982). ‚An appellate court may
only find abuse if it can be said that no reasonable [person]
would take the view adopted by the trial court.‛ State v.
Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d 1167 (alteration in
original) (citation and internal quotation marks omitted). 5

5. Defendant also contends that ‚*e+ven if the . . . errors are not
individually prejudicial, taken together they constitute
cumulative error.‛ Because we conclude that the district court’s
actions do not ‚amount to error,‛ ‚there was no cumulative
error in this case.‛ See State v. Killpack, 2008 UT 49, ¶ 56, 191 P.3d
17.

20140778-CA 7 2016 UT App 209
 State v. Sisneros

ANALYSIS

I. The District Court Did Not Err in Denying Defendant’s Motion
to Strike the Hearing.

¶16 Defendant contends ‚the district court violated *his+ due
process rights‛ when ‚it denied his motion to strike the [order to
show cause] hearing‛ because ‚*d+oing so deprived *Defendant+
of an opportunity to present documentary evidence that could
have helped his case.‛ Specifically, he argues ‚a video recording
might have existed that may have provided evidence that
[Defendant] was not inebriated during the police stop,‛ and
‚*p+ostponing the *order to show cause+ hearing until the
NSLPD complied with the second subpoena would have
substantially furthered the accuracy and reliability of the district
court’s fact-finding process.‛6

¶17 ‚*T+he United States Supreme Court has determined that
probation revocation proceedings . . . are entitled only to the
‘minimum requirements of due process.’‛ State v. Orr, 2005 UT
92, ¶ 12, 127 P.3d 1213 (quoting Gagnon v. Scarpelli, 411 U.S. 778,

6. The State argues that Defendant did not preserve this issue
because Defendant’s motion to strike the hearing is based on the
response to his first subpoena to NSLPD, whereas on appeal
Defendant argues the court violated his due process rights by
‚holding the . . . hearing before NSLPD responded to the second
subpoena‛ to NSLPD. (Emphasis added.) ‚An issue is preserved
for appeal when it has been presented to the district court in
such a way that the court has an opportunity to rule on *it+.‛
Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (alteration in
original) (citation and internal quotation marks omitted).
Because Defendant also objected at the hearing based on the lack
of response to his second subpoena, the district court had an
opportunity to rule on the issue and we determine that it is
sufficiently preserved.

20140778-CA 8 2016 UT App 209
 State v. Sisneros

786 (1973)). The ‚minimum requirements of due process‛
include

(a) written notice of the claimed violations of
[probation]; (b) disclosure to the [probationer]
of evidence against him; (c) opportunity to be
heard in person and to present witnesses and
documentary evidence; (d) the right to
confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds
good cause for not allowing confrontation);
(e) a neutral and detached hearing body . . . ;
and (f) a written statement by the factfinders as
to the evidence relied on and reasons for
revoking [probation].

Id. ¶ 20 (alterations and omission in original) (citation and
internal quotation marks omitted). In addition, ‚There is no
violation of due process if the evidence demonstrates only a
mere possibility that an item of undisclosed information might
have helped the defense, or might have affected the outcome
. . . .‛ State v. Shabata, 678 P.2d 785, 788 (Utah 1984) (citation and
internal quotation marks omitted).

¶18 In this case, Defendant received due process. He was
provided written notice of the claimed violations through
AP&P’s violation report and supporting affidavit. The hearing
provided him the opportunity to be heard in person and to
confront and cross-examine witnesses before a neutral and
detached hearing body. Further, despite Defendant’s contention
to the contrary, he was also given the opportunity to present
witnesses and documentary evidence at the hearing. The show
cause hearing was ordered January 22, 2014, initially scheduled
for March 21, and continued multiple times. The hearing was not
held until August 1, 2014, ultimately providing Defendant more
than six months to prepare for it. Cf. State v. Terrazas, 2014 UT
App 229, ¶ 18, 336 P.3d 594 (concluding that defendant received

20140778-CA 9 2016 UT App 209
 State v. Sisneros

due process because he was ‚notified months in advance of the
eventual review hearing, at which he appeared and was
represented by counsel and had an opportunity to cross-examine
the State’s . . . witnesses . . . [and] testified in his own behalf‛).

¶19 Furthermore, it is entirely speculative whether a response
to Defendant’s second subpoena would have produced any
evidence and, even if it did, whether that evidence would have
been helpful to his case. See Smith v. Cain, 132 S. Ct. 627, 635, 181
L. Ed. 2d 571 (2012) (It is ‚a petitioner’s burden . . . to establish a
reasonable probability of a different result.‛ (emphasis omitted)
(internal quotation marks and citation omitted)). Defendant
contends that ‚*a+ video recording might have existed that may
have provided evidence that [Defendant] was not inebriated
during the police stop‛ or that could have contradicted the
officer’s and Ex-wife’s testimonies. (Emphases added.) It is
doubtful the evidence exists. The district court asked the officer
about the video equipment in the police vehicle. The officer
testified he ‚could never find the video‛ despite personally
searching for it and he consequently believed the recording
equipment was never activated.

¶20 What is not in doubt is the result of the breathalyzer
test—it revealed a blood alcohol content of 0.114. Defendant did
not dispute that test result. Furthermore, Ex-wife testified that,
based on her experience with Defendant, she believed he was
intoxicated the morning of the assault. She also testified
Defendant hit her multiple times and pushed her hard enough
that she fell and broke the coffee table. The court stated it found
Ex-wife’s testimony to be more credible than Defendant’s and it
even indicated it could conclude Defendant violated his
probation based on her testimony alone. Defendant was on zero-
tolerance probation and both the assault and consumption of
alcohol violated the terms of his probation. In sum, the district
court had ample evidence to revoke Defendant’s probation.

¶21 Because Defendant was afforded the minimum
requirements of due process required in probation revocation

20140778-CA 10 2016 UT App 209
 State v. Sisneros

proceedings and he has not shown that the speculative evidence
he sought would likely have changed the outcome of the
proceeding, we conclude the district court did not violate
Defendant’s due process rights by denying his motion to strike
the hearing.

II. The District Court Did Not Abuse Its Discretion in Denying
Defendant’s Request for a Continuance.

¶22 Defendant also contends the ‚district court abused its
discretion when it denied [Defendant’s+ request for a
continuance [during the hearing] to locate . . . a witness who
may have corroborated *Defendant’s+ testimony.‛

¶23 The Utah Supreme Court has explained that

when a party to a criminal action ‚moves for a
continuance in order to procure the testimony of an
absent witness,‛ the party must demonstrate that:
(1) ‚the testimony sought is material and
admissible,‛ (2) ‚the witness could actually be
produced,‛ (3) ‚the witness could be produced
within a reasonable time,‛ and (4) ‚due diligence
ha[d] been exercised before the request for a
continuance.‛

State v. Cornejo, 2006 UT App 215, ¶ 15, 138 P.3d 97 (alteration in
original) (quoting State v. Creviston, 646 P.2d 750, 752 (Utah
1982)).

¶24 In this case, Defendant did not demonstrate that he
exercised due diligence to ‚procure the testimony of [the] absent
witness.‛ See id. (citation and internal quotation marks omitted).
Defendant did not explain what prior efforts he had made to
arrange for the witness but he acknowledged at the hearing,
‚[W]e didn’t pay as much attention to her as we probably should
have.‛ In addition, Defendant did not fully investigate what the
witness’s testimony would be. He speculated that ‚she might

20140778-CA 11 2016 UT App 209
 State v. Sisneros

have been in the apartment and seen what occurred [there]. We
haven’t been able to verify that.‛

¶25 In any case, the testimony sought was not material.
‚Testimony is material if there is a reasonable probability that its
presence would [have] affect[ed] the outcome . . . . A reasonable
probability is a probability sufficient to undermine the
confidence in the outcome.‛ Id. ¶ 16 (alteration in original)
(citation and internal quotation marks omitted). Here, any
testimony the witness may have provided would not have
affected the outcome of the proceeding. The district court
indicated it had ‚no doubt [the potential witness] drove him
there. Maybe she sat and waited for him, but she didn’t see
anything that went on in the apartment.‛ And even if the
potential witness observed anything that occurred within the
apartment, as explained above, the district court had ample
evidence to revoke Defendant’s probation. See supra ¶ 20.
Accordingly, we conclude the court did not abuse its discretion
in denying Defendant’s request for a continuance.

CONCLUSION

¶26 We conclude the district court did not violate Defendant’s
due process rights by denying his motion to strike the show
cause hearing. In addition, the court did not abuse its discretion
in denying Defendant’s request to continue the hearing.

¶27 Affirmed.

20140778-CA 12 2016 UT App 209