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State v. Torres

Court of Appeals of Utah

June 14, 2018

State of Utah, Appellee,
Luis A. Torres Jr., Appellant.

          Third District Court, Salt Lake Department The Honorable Todd M. Shaughnessy No. 161900917

          Peter A. Daines, Attorney for Appellant.

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

          Judge Diana Hagen authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.

          HAGEN, JUDGE.

         ¶1 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.


         ¶2 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.

         ¶3 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.

         ¶4 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?"

         ¶5 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.

         ¶6 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."

         ¶7 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.

         ¶8 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 drove off.

         ¶9 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 ...

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