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State v. Cruz

Court of Appeals of Utah

December 1, 2016

State of Utah, Appellee,
v.
Abelardo Cruz, Appellant.

         Eighth District Court, Vernal Department The Honorable Clark A. McClellan No. 131800746

          Jeremy M. Delicino, Hakeem Ishola, and Carlos Navarro, Attorneys for Appellant

          Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee

          Judge J. Frederic Voros Jr. authored this Opinion, in which Judges Kate A. Toomey and JIll M. Pohlman concurred.

          OPINION

          J. FREDERIC VOROS, JUDGE

         ¶1 Abelardo Cruz appeals his conviction for two counts of sodomy upon a child, a first degree felony. We affirm.

         BACKGROUND

         ¶2 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.''

         ¶3 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.''[1] Although Cruz denied the incident, Mother left the family home the following week and moved with her children to another city.

         ¶4 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.

         ¶5 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].''[2] Later in the interview, Child repeated that Cruz ''put his tito in my mouth.''

         ¶6 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.''

         ¶7 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.

         ¶8 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.

         ¶9 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.

         ¶10 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.[3]

         ISSUES

         ¶11 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 deliberations.

         ¶12 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 response.

         ¶13 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.

         ¶14 Fourth, Cruz contends that the State presented insufficient evidence to convict Cruz of sodomy on a child.

         ¶15 Fifth, Cruz contends that the cumulative error doctrine requires reversal.

         ANALYSIS

         I. CJC Video Recordings

         ¶16 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).

         A. Reliability of Child's Testimony

         ¶17 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. 15.5(a)(8).

         ¶18 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 ''coaching.''

         ¶19 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.

         ¶20 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 resulting error.

         ¶21 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 appeal.

         ¶22 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 see-
[DEFENSE COUNSEL]: I'll stipulate to those.

         Nevertheless, 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 ...

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