State v. Dominguez

447 P.3d 1224

STATE of Utah, Appellee,

v.Julio Alphonso DOMINGUEZ, Appellant.

No. 20170618-CA

Court of Appeals of Utah.

Filed July 5, 2019

Troy L. Booher and Freyja R. Johnson, Salt Lake City, Attorneys for Appellant

Sean D. Reyes and Jeffrey D. Mann, Salt Lake City, Attorneys for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.

Opinion

CHRISTIANSEN FORSTER, Judge:

¶1 Julio Alphonso Dominguez appeals his conviction of aggravated burglary. We affirm.

BACKGROUND

¶2 Dominguez went to a club with three male friends—his eventual codefendants Eric Duran, Davy Ray Martinez (D. Martinez), and Jaime Martinez (J. Martinez)—and two female friends. The group met Victim for the first time at the club. Victim had been drinking heavily. Victim invited the group, along with another woman (Witness) and her two male friends to come to his apartment to continue drinking.

¶3 While walking to Victim's apartment from the car, Victim put his arm around one of Dominguez's female friends and touched her breast.¹ This upset J. Martinez, who told Victim not to touch his "girl." Victim made some form of apology, which apparently diffused the situation, and the group continued to Victim's apartment.

¶4 When the group arrived at Victim's apartment, they continued drinking. Victim was pushy with Dominguez and his friends, insisting that they "sit down" when they did not want to and telling them they could not play music on their phones. According to Dominguez, Victim then began goading them, stating, "You guys think you're so bad. I bet I could take all four of you on." He then pushed Duran, who retaliated by punching Victim. The fight escalated, and all four codefendants attacked Victim, punching and kicking him in the face and body. At some point, the fighting stopped long enough for Victim to run into his bedroom and lock the door.

¶5 When the fight between the men first began, and before Victim escaped to his bedroom, Dominguez's two female friends were in the bedroom. At some point during the fighting, they left the bedroom and apparently saw the fight going on in the hallway. Dominguez and one of the women testified that the two women ran back into the bedroom when they saw the fighting and were inside the room when Victim ran in and locked the door behind him. In contrast, Victim and Witness testified that the women did not go back into the bedroom and were outside the room when Victim locked himself inside. And another witness, one of Witness's male friends, testified that he did not see anyone else in the bedroom when Victim shut the door.

¶6 After Victim locked himself in his bedroom, the codefendants broke down the door. According to Dominguez, their purpose for breaking down the door was to rescue the two women because they could hear the women screaming and were worried about their safety due to Victim's earlier aggressiveness and his touching one of the women. When the door gave way, the codefendants rushed in and began punching and kicking Victim again.

¶7 Eventually, the codefendants finished beating Victim and ran out of the apartment. When they left, Witness went into the bedroom to check on Victim. While she was there, Duran returned to the apartment. According to Witness, Duran held up Victim's keys and told him, "We've got your keys. Give me your wallet." Victim began to pull out his wallet, and Witness stood in the door and told Duran to leave. He responded, "Move, bitch, I'm going to stab this fool." Witness told him, "Nobody's stabbing nobody," at which point D. Martinez "walked up ... behind" Duran and punched Witness in the face. Witness fell to the floor and blacked out. When she regained consciousness, Dominguez was in the room, and she saw him punch Victim three more times.

¶8 All four codefendants were charged with aggravated burglary based on the allegation that they broke into the bedroom for the purpose of assaulting Victim, along with lesser included offenses of assault. Duran and D. Martinez were also charged with aggravated robbery, and D. Martinez was charged with an additional assault in connection with the allegation that he hit Witness.

¶9 Following the incident, Witness gave a statement to police regarding the location of Dominguez's two female friends during the fighting. She stated, "The girls were in the back bedroom and ran out when the boys went in the bedroom."² At trial, defense counsel confronted Witness with this statement, attempting to impeach her trial testimony that the women left the room before Victim locked himself inside. Witness explained the discrepancy by clarifying, "What I meant by ‘running out,’ is running out of the apartment."

¶10 Prior to trial, the court granted a motion in limine to exclude Dominguez's criminal record from the State's case-in-chief. Nevertheless, at one point in the trial, one of the police officers who investigated the case (Officer) was asked, "[D]id you run Julio Dominguez's history and access his driver's license photograph?" Officer responded, "I don't remember exactly how I was able to identify him. I believe it was through his mug shot that we have on file." Defense counsel objected, and the court conducted a discussion at the bench off the record. The prosecutor then continued with a different line of questioning. Defense counsel subsequently moved for a mistrial. The court denied the motion, concluding that although the statement was clearly inadmissible and potentially prejudicial, Officer's statement was inadvertent and any damage was mitigated because defense counsel did not draw attention to it and the prosecution moved to a different line of inquiry.

¶11 Dominguez's counsel requested a jury instruction on defense of others, and the primary defense asserted at trial was that Dominguez and his codefendants were justified in breaking down Victim's bedroom door because they did so with the purpose of protecting the women, who were locked in the room with Victim. Counsel approved the following jury instruction:

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that force is necessary to defend himself or a third person against such other's imminent use of unlawful force.

In determining imminence or reasonableness, the trier of fact may consider, but is not limited to, any of the following factors:

(1) the nature of the danger;

(2) the immediacy of the danger;

(3) the probability that the unlawful force would result in death or serious bodily injury;

(4) the other's prior violent acts or violent propensities; and

(5) any patterns of abuse or violence in the parties' relationship.

A person does not have a duty to retreat from the force or threatened force stated above in a place where that person has lawfully entered or remained.

A person is not justified in using force if the person was the aggressor or was engaged in a combat by agreement, unless the person withdraws from the encounter and effectively communicates to the other person his intent to do so and, notwithstanding, the other person continues or threatens to continue the use of unlawful force.

The defendant is not required to prove that the defense applies. Rather, the State must prove beyond a reasonable doubt that the defense does not apply. The State has the burden of proof at all times. If the State has not carried this burden, the jury should find the defendant not guilty.

Counsel also approved the placement of the defense-of-others instruction at the end of the instructions providing definitions for various terms rather than within the instructions setting forth the elements of the crime with which Dominguez was charged.

¶12 Following a three-day trial, in which the codefendants were tried together, the jury found all four codefendants guilty of aggravated burglary but acquitted Duran and D. Martinez of the other charges. Dominguez was sentenced to ten years to life in prison for aggravated burglary. He now appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Dominguez first argues that his counsel provided ineffective assistance by failing to request a jury instruction explicitly linking the defense-of-others instruction to the aggravated burglary charge. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." State v. Perry , 2009 UT App 51, ¶ 9, 204 P.3d 880 (quotation simplified).

¶14 Dominguez next asserts that counsel was ineffective for inaccurately quoting Witness's police statement when attempting to impeach her and for failing to confront her with her recorded police statement. Because the record on appeal does not contain the recorded statement, Dominguez has requested that we remand the case pursuant to rule 23B of the Utah Rules of Appellate Procedure to permit the trial court to supplement the record with additional findings. In determining whether rule 23B remand is appropriate, we must assess whether Dominguez has made " ‘a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective.’ " See State v. Griffin , 2015 UT 18, ¶ 17, 441 P.3d 1166 (quoting Utah R. App. P. 23B(a) ).

¶15 Finally, Dominguez challenges the trial court's denial of his motion for mistrial. "A trial court's denial of a motion for a mistrial will not be reversed absent an abuse of discretion." State v. Wach , 2001 UT 35, ¶ 45, 24 P.3d 948.

ANALYSIS

I. Counsel Was Not Ineffective for Not Objecting to the Defense-of-Others Jury Instruction.

¶16 Dominguez first argues that his counsel was ineffective for failing to request jury instructions—or at least better placement of jury instructions—that would explicitly link the defense-of-others affirmative defense to the aggravated burglary charge. To prevail on grounds of ineffective assistance of counsel, a defendant must demonstrate, first, "that counsel's performance was deficient, in...