District Court, Salt Lake Department The Honorable Todd M.
Shaughnessy No. 161900917
A. Daines, Attorney for Appellant.
D. Reyes and Karen A. Klucznik, Attorneys for Appellee.
Diana Hagen authored this Opinion, in which Judges David N.
Mortensen and Jill M. Pohlman concurred.
A jury convicted Luis A. Torres Jr. of one count of
aggravated assault (Count 1), a felony, and one count of
assault (Count 2), a misdemeanor, stemming from violent acts
that he committed during an argument with the victim, his
then-girlfriend. Torres appeals his conviction on Count 1,
arguing that he received constitutionally ineffective
assistance of counsel because his trial counsel did not move
for a directed verdict and did not object to the admission of
instant messages in which Torres admitted to prior acts of
abuse against the victim. Because the State produced
sufficient evidence to justify submitting the case to the
jury, trial counsel did not perform deficiently in failing to
raise a futile motion. In addition, given the strong evidence
of guilt, any error in admitting the contested messages at
trial did not prejudice the defense. Accordingly, we affirm.
Torres and the victim had been involved in an
on-again-off-again relationship for several years. Late one
evening, the victim planned to spend the night with Torres at
his father's apartment, but the couple began arguing.
Torres eventually "tossed" his cell phone at the
victim, hitting her in the chin. After exchanging "fuck
you[s], " Torres told the victim to leave.
As the victim gathered her belongings, Torres punched her in
"the back of [the] head." The victim began crying
and told Torres not to hit her. In response, Torres said,
"Stop fucking crying, I didn't hit you that
hard." The argument moved into the kitchen where Torres
hit the victim with his hand "next to her left eye"
before he walked out of the apartment. According to the
victim, although Torres's father, sister, and the
sister's children were asleep in the apartment at the
time, no one stirred during the argument.
After the victim finished gathering her belongings, she
walked out to the parking lot where she noticed Torres
crouched down next to the rear passenger tire of her vehicle.
Assuming that Torres was letting air out of her tire, the
victim yelled, "[W]hy are you doing this?"
The victim moved toward the driver's side of her vehicle,
but Torres blocked the door and refused to budge. The victim
went around to the rear passenger door and crawled through
her car to the driver's seat while Torres climbed into
the passenger seat beside her. She begged Torres to let her
leave, but he responded, "[F]uck you bitch." When
the victim then attempted to start the ignition, Torres
grabbed her keys, got out of her car, and got into his own.
In response, the victim walked to the driver's side of
Torres's vehicle and asked him to return her keys and to
"just leave her alone." Torres refused and started
his vehicle. To prevent Torres from leaving with her keys,
the victim stood in front of his vehicle. Undeterred, Torres
shifted his vehicle into drive and, without accelerating, let
it roll forward. The victim began moving backward, but
Torres's vehicle hit the top of her legs several times.
Torres then told the victim that "[she was] going to
fuckin' die tonight."
The victim repeatedly yelled at Torres to return her keys.
Instead of complying, Torres slowly accelerated his vehicle,
hitting the victim and causing her to fall backward. The
victim testified that Torres's vehicle rolled over her
until its front bumper was positioned just below her chest.
At trial, Torres argued that it would have been physically
impossible for his vehicle to roll over the victim in the
manner that she described without causing significant injury
because the vehicle, which was equipped with a customized air
suspension system, was lowered and sat a mere
seven-and-a-half inches off the ground.
When the victim stood up, she was "hysterical, "
yelling at Torres to return her keys and let her leave.
However, Torres accelerated and hit the victim again, sending
her onto the hood of his vehicle. After the victim rolled off
hood and landed on the ground, Torres said, "Fuck you
bitch, " threw her keys to her, and drove off. At trial,
Torres's sister testified that she had looked through her
bedroom window and had seen the couple arguing face-to-face.
And, according to his sister, when the victim asked for her
keys, Torres threw them into the air, got into his car, and
The victim contacted police later that afternoon to report
the altercation. During the 911 call, the victim told the
dispatcher that Torres hit her with his vehicle, but she did
not say that the vehicle had rolled over her. According to
the victim, she "was just trying to be . . . short and
simple" during the 911 call because she ...