State v. Cruz

478 P.3d 631

STATE of Utah, Appellee,

v.Lee Donald CRUZ, Appellant.

No. 20190230-CA

Court of Appeals of Utah.

Filed November 19, 2020

Emily Adams and Cherise M. Bacalski, Attorneys for Appellant

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

Judge David N. Mortensen authored this Opinion, in which Judges Michele M. Christiansen Forster and Kate Appleby concurred.

Opinion

MORTENSEN, Judge:

¶1 Lee Donald Cruz appeals his conviction for aggravated kidnapping. He contends his trial counsel provided ineffective assistance by failing to move for a directed verdict and by failing to object to the prosecution's introduction of allegedly false evidence to support his conviction. He also contends the district court erred at sentencing by failing to resolve his objections to the presentence investigation report on the record. We affirm the conviction but remand the issue of Cruz's objections to the presentence investigation report.

BACKGROUND¹

¶2 Cruz and the victim (Victim) started dating in 2015 or 2016 shortly before he served a prison sentence in Arizona. When Cruz was released from prison in early December 2017, Victim picked him up and the two stayed with Victim's uncle in Brigham City, Utah. But Victim quickly decided she no longer wanted to be involved with Cruz, and when she told him so, he became "really, really crazy." Victim pled with Cruz to "just let [her] be" and to allow her to "get on with [her] life." Cruz instead threatened to physically assault her, began following her, and even went to her children's house.

¶3 On December 14, 2017, Victim drove to her friend's (Friend) apartment to hide from Cruz. Friend shared the apartment with Friend's son, son's wife (Daughter-in-law), and their two-year-old son. Victim fell asleep on a couch in the living room while Friend lay awake on a nearby bed with her eyes closed. At approximately 11:30 p.m., Cruz broke into the apartment. Friend opened her eyes and saw Cruz standing over Victim with a gun in his hand.

¶4 Cruz immediately pointed the loaded gun at Victim's face and began yelling and demanding that she leave with him. Victim emphatically and repeatedly told Cruz that she did not want to go anywhere with him, but Cruz continued to point the gun at her face while calling her a "bitch" and demanding that she "get the fuck up off the couch" and "get the fuck in the car and ... go." Cruz threatened that he would "blast in [the apartment]" if she did not leave with him.

¶5 Friend watched all of this from the side of her bed. When she got up from the bed, Cruz waved his gun around and demanded to know whose apartment he had entered. As Daughter-in-law entered the living room after hearing the "ruckus" from her room, Friend retreated to a room in the back of the apartment and called the police.

¶6 Meanwhile in the living room, Daughter-in-law expressed her concern that her child was in the apartment. When Victim reiterated this concern, Cruz responded, "I didn't fucking gun at the kids. Get your fucking shit and go." After Daughter-in-law insisted that Cruz leave, he eventually exited the apartment through the front door, shutting it behind him. Daughter-in-law held the door handle and told Victim to "get [her] shit and get out" because "he's crazy ... waving his gun around in the middle of the apartment." Victim put on her shoes, gathered her bag and car keys, and left minutes later.

¶7 When Victim left the apartment, Cruz was still outside, standing between the apartment complex and a gate leading to the parking lot. Victim then left the apartment complex with Cruz in his car. Once in the car, Cruz told Victim, "[Y]ou're staying with me." Victim protested, indicating that she wanted to go back to her uncle's house in Brigham City to sleep. Cruz instead struck Victim on the back of her head, insisted that she wanted to perform sex acts on him, and took her to the basement of a duplex in Ogden, Utah.

¶8 Police eventually identified the location of the two and arrived at the basement at approximately 1:00 a.m. One of the officers asked Victim, "What's going on tonight?" Victim immediately responded, "I don't know how the hell he found me." Victim told the officer that she did not want to leave Friend's apartment with Cruz, but she left with him because she was "fearful ... for [her] safety" and concerned for the children in the apartment. Victim further informed the officer, "I left because [Cruz] was like, ‘Bitch, I'm going to blast in here.’ " Victim also told the officer that she "didn't want to leave" with Cruz because even before this incident she "ha[d] to really watch [her]self" because of Cruz's "crazy" behavior. Throughout her explanation, Victim continued to express her disbelief that Cruz was able to find her that night. This interaction was recorded on the officer's body camera.

¶9 After Cruz was taken into custody, Victim was threatened by numerous individuals who thought she may cooperate with the State in the criminal case against Cruz. On one occasion, someone claiming to be Cruz's best friend told Victim to "watch [her] ass" if she was "ratting" on Cruz and that it would be crazy if Cruz "[went] down for [Victim]." Victim decided not to pursue charges and told the State that she would not "testify on [Cruz]."

¶10 Cruz also directly contacted Victim about how she should testify. During the initial stages of the criminal proceedings, the district court placed a no-contact order between Cruz and Victim. Despite this order, Cruz called Victim more than 130 times. In these calls, Cruz discussed trial strategy with Victim and directed her that she needed to testify at trial, "say that none of this ever happened" and be "decisive" that he "never forced anybody to do anything."

¶11 Perhaps unsurprisingly, Victim's testimony at trial described a dramatically different version of events than what she told police had transpired on the night of December 14, 2017. At trial, she testified that she was not at Friend's apartment to hide from Cruz; rather, she claimed that she had been with him throughout the entire day of December 14 and that they had planned to drive back to Brigham City together that night. Victim further testified that she had gone to Friend's house with the intent of briefly picking up some items, but accidentally fell asleep there. Victim also denied that Cruz had a gun, denied that he had threatened to "blast" in the apartment, and claimed she left with Cruz willingly after he simply asked her to because he had to go to work the next morning. Finally, Victim testified that they went to the basement in Ogden because they were too tired to drive to Brigham City.

¶12 The State countered Victim's new version of events by playing audio and video recordings of contradictory statements she made to police and other individuals about what had happened that night. To explain why Victim was testifying to a contradictory version of events, the State also presented evidence that Victim had been threatened over the possibility of her testifying for the State and had been directly contacted by Cruz as to how she was to testify favorably for him.

¶13 It was in this context that the State asked whether Victim "ma[d]e comments" that she "didn't want contact with [Cruz], and [she] wanted a no-contact order." Victim denied she ever said anything to that effect and asked the State to show her an instance when she did. The State then played the following recording of Victim stating to a friend:

So anyways, so listen. So there's a no-contact order between me and him, okay? I put it there. I don't want nothing to do with him. I don't want to contact him. I don't want him to contact me, whatever. As far as that goes, like I told the cops, hey, I want that information.

The State then played a second recording in which Victim also told a friend:

[Cruz] probably followed me around. He is psycho in that extent. I do want to put a restraining order, and I want a no-contact order between me and him. And I want to keep that in place, and I'm going to make sure it stays in place.

This was the extent of the State's questions about whether Victim wanted a no-contact order. After hearing all the evidence, the jury convicted Cruz of aggravated kidnapping.²

¶14 The district court later held a sentencing hearing, during which Cruz identified three errors in the presentence investigation report (PSI). Cruz conceded that the suggested corrections would not affect his sentence. The district court did not make any oral findings as to whether it accepted Cruz's proposed corrections to the PSI. But in its written final judgment, it did indicate that Cruz made objections to the PSI, listed what they were, and noted that "[t]he corrections d[id] not change" Cruz's sentence.

ISSUES AND STANDARDS OF REVIEW

¶15 Cruz contends his trial counsel provided him with ineffective assistance in two respects. First, Cruz contends counsel was ineffective for not moving for a directed verdict on the aggravated kidnapping count. Second, Cruz contends counsel was ineffective for not objecting to the State playing the first audio recording, which he asserts amounted to the State introducing false evidence. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." State v. Abelon , 2016 UT App 22, ¶ 11, 369 P.3d 113 (cleaned up).

¶16 Cruz further contends the district court erred by failing to resolve his objections to the PSI on the record as required by Utah Code section 77-18-1(6)(a). "Whether the district court complied with its legal duties under section 77-18-1(6)(a) is a question of law that we review for correctness." Id. (cleaned up).

ANALYSIS

I. Ineffective Assistance of Counsel

¶17 Cruz contends his trial counsel provided him with ineffective assistance. To prevail on an ineffective assistance of counsel claim, the defendant "must demonstrate that (1) his counsel's performance was deficient in that it fell below an objective standard of...