District Court, Vernal Department The Honorable Clark A.
McClellan No. 131800746
M. Delicino, Hakeem Ishola, and Carlos Navarro, Attorneys for
D. Reyes and Karen A. Klucznik, Attorneys for Appellee
J. Frederic Voros Jr. authored this Opinion, in which Judges
Kate A. Toomey and JIll M. Pohlman concurred.
FREDERIC VOROS, JUDGE
Abelardo Cruz appeals his conviction for two counts of sodomy
upon a child, a first degree felony. We affirm.
Cruz resided with Mother and her six-year-old daughter
(Child). On November 9, 2013 Cruz returned home on his lunch
break and went upstairs to ''get some rest''
in the bedroom. Child also went upstairs. Later, Mother
walked upstairs ''very softly'' to get her
phone. When Mother opened the bedroom door, Cruz was lying on
the bed, his pants were ''wide open, ''
unbuttoned, and the zipper was down, '' and he looked
scared. Child was lying on the bed next to Cruz
''near his hips.''
Mother took Child into the adjacent bathroom and asked her
what had happened. Child appeared shaky and pale and
initially responded that nothing had happened. When Mother
asked again, Child responded that Cruz ''put his tito
in [her] mouth.'' Although Cruz denied the incident,
Mother left the family home the following week and moved with
her children to another city.
Mother took Child to a hospital to determine if Child
sustained any injuries from the November 9 incident. The
examining doctor found no sign of injury. After examining
Child, the hospital called the police to report allegations
of sexual abuse.
A police detective interviewed Child at a Children's
Justice Center (the first CJC interview). The detective
conducted the interview in both English and Spanish. During
the interview, Child told the detective that on the day of
the alleged abuse, Child followed Cruz upstairs to the
bedroom. Child explained that once she entered the room, Cruz
put his hand on the door, and ''he didn't let
[her] out.'' Child told police that Cruz unzipped his
pants, that she ''was trying to get out, ''
and that Cruz then ''did something bad.'' The
detective asked Child why Cruz wouldn't let her out of
the room; she responded, ''I didn't want to do
it, but he made me do it. He made me put my mouth on his
[tito].'' Later in the interview, Child repeated
that Cruz ''put his tito in my mouth.''
The following week a police officer conducted a second
interview with Child at a separate Children's Justice
Center (the second CJC interview). The officer conducted the
interview mainly in Spanish. In the interview, Child
explained that Cruz ''put [her] up on the bed . . .
on [her] knees'' while his pants were unzipped. Child
told the officer that Cruz ''took his tito
out'' and told her not to tell anybody and
''not to bite his tito.'' Child explained
that Cruz directed her to suck his penis ''like a
popsicle.'' She reiterated that Cruz ''put
his tito in my mouth'' and then her mother
''walked in the door and she saw.''
Before trial, the State moved for the admission of
out-of-court statements by Child for presentation to the
jury, and that the testimony of Child at trial be taken
outside of the courtroom setting. The State sought to admit
only the interview from the second CJC interview. Cruz
opposed the State's motion and argued in the alternative
that the court should show both interviews to the jury. The
trial court ruled that the testimony was sufficiently
reliable and trustworthy under rule 15.5 of the Utah Rules of
Criminal Procedure and admitted both interviews into
evidence. The State requested that the jury be allowed to
take the videotaped interviews into the jury room during
deliberations. Cruz objected, but the court allowed the video
recordings into the jury room.
At trial, the jury heard both interviews with concurrent
translation of the Spanish portions. In the first CJC
interview the detective asked Child whether the alleged abuse
happened ''one time or more than one time, ''
and Child responded that it had happened before
''when [her] mom would work.'' When the
detective asked ''Every time?'' Child
provided a nonverbal response. The State requested that the
record reflect ''that when he asks the question
'every time, ' the nonverbal answer in the video is a
nod, an affirmative nod.'' The court granted the
State's request and ''indicate[d] for the record
that the child moved her head up and down.'' When the
detective asked if anything else happened, the court paused
the video and stated, ''[W]e need to reflect what
happened.'' At this point, Cruz objected and
requested a hearing outside of the presence of the jury. The
court finished playing the interview and excused the jury.
Cruz objected to the State's motion on the ground that
''the jury could see for themselves if [there was]
nodding.'' After the State presented its next
witness, but before the court played the second CJC
interview, the court instructed the jury not to consider its
earlier statement about the head nod. The court stated that
it did not ''want [the jury] to consider [the
court's] statement about the child moving her head up and
down for any purpose.'' The court instructed the jury
to ''evaluate for [itself] whether or not the child
did anything and what purpose you are going to apply if any
to her conduct in response to that question . . . . Consider
only what you saw on the video.'' Cruz cross-examined
Child after the court played both interviews.
After the jury had deliberated for about 18 hours, the trial
court gave a modified Allen instruction at the joint
request of defense counsel and the State. See State v.
Ginter, 2013 UT App 92, ¶ 4 n.2, 300 P.3d 1278
(defining an Allen instruction as a supplemental
jury instructions to help a deadlocked jury reach a unanimous
verdict). The trial court then asked the jury whether there
was ''any reasonable likelihood that continued
deliberation [would] result in a unanimous verdict on any
counts that you have not yet as a group been able to agree
upon.'' The court asked the jury to return a response
to the question ''in a relatively short period of
time.'' Thirty minutes later, the jury returned and
informed the court that it had reached a unanimous verdict on
some counts and that further deliberations would not be
productive on the others. The jury convicted Cruz of two
counts of sodomy on a child and aggravated kidnapping. It
reached no verdict on four of eight counts and acquitted Cruz
on one count.
Cruz raises five issues on appeal. First, he contends that
the trial court erred when it allowed the Children's
Justice Center video recordings into the jury room during
Second, Cruz contends that the trial court erred by
instructing the jury to assume that a non-verbal cue Child
made in the first CJC interview constituted an affirmative
Third, Cruz contends that the trial court erred in granting
the joint request of Cruz and the State to give the jury a
modified Allen charge after the jury deliberated for
over 18 hours.
Fourth, Cruz contends that the State presented insufficient
evidence to convict Cruz of sodomy on a child.
Fifth, Cruz contends that the cumulative error doctrine
Cruz ''makes no wholesale constitutional attack on
the admission of [Child's] videotaped
interviews.'' Rather, he ''primarily objects
to . . . the district court's determination that
[Child's] uncross-examined hearsay testimony in the
videotapes was so reliable and trustworthy that it should
also be provided to the jury in deliberation.''
Cruz's challenge to the video recordings comprises three
subpoints: (1) Child's statements were not reliable and
trustworthy under rule 15.5 of the Utah Rules of Criminal
Procedure; (2) he could not cross-examine Child until trial,
over a year after the recorded interviews; and (3) due to the
interviews' unreliability and Cruz's inability to
cross-examine Child, the video recordings should not have
followed the jury into deliberations. Whether the trial court
correctly admitted the videotaped interviews into evidence
pursuant to rule 15.5 is a question of law that we review for
correctness. State v. Snyder, 932 P.2d 120, 125
(Utah Ct. App. 1997).
Reliability of Child's Testimony
Under rule 15.5 of the Utah Rules of Criminal Procedure, an
oral statement of a child or other witness younger than 14
years of age that was recorded before charges were filed,
''upon motion and for good cause shown, '' is
admissible in court if eight enumerated conditions are met.
Utah R. Crim. P. 15.5(a). One of these conditions requires
the court to view the recording and determine ''that
it is sufficiently reliable and trustworthy and that the
interest of justice will best be served by admission of the
statement into evidence.'' Id. R.
On appeal, Cruz contends that ''the district
court's findings on the reliability and trustworthiness
of the videotapes are truncated and should be reversed for
clear error.'' He maintains that several factors
weighed against reliability, such as Child's age and
maturity; the ''nature and duration of [the] abuse,
'' including Child's exposure to adult sexual
conduct in the home; lack of detail; and evidence of
The State responds that in the trial court, Cruz invited the
error he now alleges on appeal, that Cruz fails to marshal
the evidence supporting the trial court's determination,
and that in any event the trial court's ruling finds
support in the evidence.
Our supreme court held in State v. Winfield that
''under the doctrine of invited error, we have
declined to engage in even plain error review when counsel,
either by statement or act, affirmatively represented to the
[trial] court that he or she had no objection to the
[proceedings].'' 2006 UT 4, ¶ 14, 128 P.3d 1171
(alterations in original) (citation and internal quotation
marks omitted); accord State v. Pinder, 2005 UT 15,
¶ 62, 114 P.3d 551; State v. Geukgeuzian, 2004
UT 16, ¶ 9, 86 P.3d 742. The court added a gloss to that
rule in State v. McNeil, 2016 UT 3, 365 P.3d 699.
There, after objecting to certain evidence on hearsay grounds
and discussing the issue with the trial court, counsel
acknowledged, ''Okay, it's not hearsay.''
Id. ¶ 22. The supreme court rejected the
State's invited error argument on the ground that counsel
had not conceded the evidence was not hearsay ''until
[after] the trial court insisted that the detective's
testimony was not hearsay.'' Id. The trial
court's interpretation of the issue thus ''was
not invited by'' defense counsel. Id. ¶
23 (citation and internal quotation marks omitted). Reading
Winfield and McNeil together, we conclude
that a party who withdraws an objection in the face of the
court's insistence that the objection lacks merit, and
thereafter agrees with the court's conclusion, does not
invite any resulting error; but a party who, without having
objected to a proposed course of action, affirmatively
represents that they have no objection to it, invites any
Here, Cruz invited the alleged error. At no point did he
object on the ground he now asserts on appeal-that the court
erred in finding the recording ''sufficiently
reliable and trustworthy.'' Cruz lodged two
objections below. First, he objected to the supreme
court's interpretation of rule 15.5(a) in State v.
Nguyen, 2012 UT 80, 293 P.3d 236. He objected to the
supreme court's inclusion of a ''good
cause'' requirement in rule 15.5(a)-in his words, the
court ''just ignored the language and interpreted it
different.'' See id. ¶ 11 (holding that
a separate showing of good cause to admit a recorded
statement is not required under rule 15.5, but that good
cause is established when the court considers all the factors
in the rule and determines that the recorded statement is
accurate, reliable, and trustworthy, and that its admission
is in the interest of justice). Cruz's solution was to
''go back and do the rule better so that we all
understand the same English and get rid of the good cause
showing.'' Cruz does not renew this argument on
After discussing the good cause issue, the trial court
proposed to make findings on the eight conditions listed in
rule 15.5, and Cruz stipulated to those conditions:
THE COURT: So let's go through the elements of 15.5 and
[DEFENSE COUNSEL]: I'll stipulate to those.
the court made findings on each of the eight rule 15.5
conditions. After the court had devoted considerable time to
the findings, Cruz interrupted:
[DEFENSE COUNSEL]: Can I say this. I'm not sure that you
need to make all these temporary findings, because I
don't agree with ...