State v. Gonzalez , 779 Utah Adv. Rep. 124 ( 2015 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2015 UT 10
IN THE
S UPREME C OURT OF THE S TATE OF U TAH
JOSE ANGEL GONZALEZ,
Appellant,
v.
STATE OF UTAH
Appellee.
No. 20120945
Filed January 27, 2015
Third District, Salt Lake
The Honorable Vernice S. Trease
No. 111906002
Attorneys:
Nisa J. Sisneros, Samuel J. Hanseen, Nathalie S. Skibine,
Salt Lake City, for appellant
Sean D. Reyes, Att’y Gen., Kris C. Leonard, Asst. Att’y Gen.,
Salt Lake City, for appellee
JUSTICE PARRISH authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE NEHRING , and JUSTICE DURHAM joined.
JUSTICE LEE authored a concurring opinion; concurring in part
and concurring in the judgment in which CHIEF JUSTICE DURRANT
joined.
JUSTICE PARRISH , opinion of the Court:
INTRODUCTION
¶1 Jose Angel Gonzalez was convicted of murder with an
enhancement for criminal street gang activity, obstruction of justice,
and possession or use of a dangerous weapon by a restricted person.
On appeal, Mr. Gonzalez argues that the trial court erred by
(1) denying his motion for directed verdict on the murder and
obstruction-of-justice charges, (2) permitting the State to present
allegedly cumulative and unfairly prejudicial gang-related evidence,
and (3) dismissing as untimely his constitutional challenge to the
gang-enhancement statute. We affirm the trial court on all issues.
STATE v. GONZALEZ
Opinion of the Court
BACKGROUND
¶2 Mr. Gonzalez is a member of the Dog Town street gang,
which is affiliated with the Sureño street gang.1 He has several gang-
related tattoos, including the words “Dog Town” tattooed in large
print across his forearm. Mr. Gonzalez is known among fellow Dog
Town members by the moniker “Flaco.” On the afternoon of August
9, 2011, Mr. Gonzalez and his girlfriend Alexis had been at a friend’s
house in West Valley, Utah. After getting into an argument with Mr.
Gonzalez, Alexis left the friend’s house and walked toward a nearby
Kohl’s department store. Mr. Gonzalez followed Alexis, and the two
made up shortly before reaching Kohl’s. Alexis then went inside
Kohl’s to use the restroom while Mr. Gonzalez waited outside the
store entrance.
¶3 While Mr. Gonzalez was waiting alone outside Kohl’s,
George Davila, his girlfriend Anjelica, her sister Alma, and Alma’s
four-year-old son Miguel walked past Mr. Gonzalez. Mr. Davila had
been a member of Familia Por Siempre, a Norteño-affiliated gang2
and a Dog Town rival, but had recently joined an independent street
gang, QVO. Mr. Davila had gang-related tattoos, but none were
visible to Mr. Gonzalez. Mr. Davila, however, noticed the “Dog
Town” tattoo on Mr. Gonzalez’s forearm, and the two exchanged
aggressive words.3 Anjelica, who was a former Kohl’s employee,
then went into Kohl’s to complete some paperwork while Mr.
Davila, Alma, and Miguel went next door to a shoe store.
¶4 While Mr. Davila was at the shoe store, Mr. Gonzalez
remained outside Kohl’s and spoke on a cell phone with two friends,
Rosa and Robie. Several other phone calls and text messages were
exchanged between Rosa, Robie, and other members of the Dog
Town gang. One such text message stated, “flacoz getting down.”
1
The Sureño gang originates from southern California and is
considered the umbrella gang for numerous regional gangs such as
Dog Town.
2
Like the Sureño gang, Norteño is an umbrella gang originating
in southern California.
3
The State presented evidence that Mr. Gonzalez asked Mr.
Davila, “What’s up my ese?” to which Mr. Davila responded, “I’m
not your ese.” The State also presented evidence that Mr. Davila,
upon seeing Mr. Gonzalez’s tattoo, may have said “Fuck Dog
Town.”
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Opinion of the Court
¶5 A short time later, Mr. Davila, Alma, and Miguel returned
to Kohl’s, entering through a different entrance, and went to the
customer service desk to meet Anjelica. Mr. Davila and Miguel then
went to the men’s restroom near the customer service desk.
Approximately one minute later, Mr. Gonzalez entered Kohl’s, went
back to the customer service desk with Alexis, and approached the
men’s restroom. Surveillance cameras showed Mr. Gonzalez giving
Alexis a one-armed hug while maintaining his other hand in his
pocket just before entering the restroom. An eyewitness testified that
she heard Alexis urge Mr. Gonzalez to “just let it go.”
¶6 Mr. Gonzalez then entered the restroom, propping the door
open with his foot. Mr. Gonzalez asked Mr. Davila, “What’s up ese?”
to which Mr. Davila responded, “I’m not your ese,” and within
seconds the two men began fighting. Miguel saw Mr. Gonzalez use
a knife to “shank[]” Mr. Davila. The fight lasted less than a minute
and spilled out into the customer service area before Mr. Gonzalez
fled the scene with Alexis, dropping a knife in the store as he left.
Mr. Davila, who was bleeding from the side of his abdomen, ran
outside with Anjelica, Alma, and Miguel to drive to Pioneer Valley
Hospital.
¶7 As Mr. Davila was fleeing Kohl’s, Dog Town members
gathered in the Kohl’s parking lot. The congregated Dog Town
members yelled toward Mr. Davila, “Die fucker, die” and “Dog
Town!” as he was getting into the car to go to the hospital. Two of
the Dog Town members then entered Kohl’s, quickly walked around
the store, briefly spoke to the store manager about the fight and
stabbing, and walked out again.
¶8 Angelica, Alma, and Miguel accompanied Mr. Davila to the
hospital. Police arrived soon after. While they were questioning
Miguel just outside the hospital, Miguel recognized two men he had
seen in the Kohl’s parking lot walking toward the hospital entrance
and notified one of the officers. The officers stopped the men and
found them carrying a bat and a knife. The two men were identified
as members of Dog Town and were taken into custody and
questioned regarding the incident.
¶9 Police later located Mr. Gonzalez, took him into custody,
and interviewed him. Mr. Gonzalez admitted to stabbing Mr. Davila
but claimed that he had acted in self-defense and used a knife
because Mr. Davila was larger and stronger than he.4 Mr. Gonzalez
4
Mr. Gonzalez measures six feet tall while Mr. Davila measures
(continued...)
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STATE v. GONZALEZ
Opinion of the Court
stated that after the fight, he went home, washed in a bowl of water,
changed shirts, then drove around West Valley and threw his bloody
shirt down a storm drain, knowing the police may be interested in
it. Pursuant to a search warrant, officers recovered from Mr.
Gonzalez’s home the hat Mr. Gonzalez was wearing in the Kohl’s
surveillance video, a blue bandanna, and a pair of shorts, each
bearing Dog Town gang symbols.
¶10 Mr. Davila sustained numerous injuries and a total of seven
stab wounds in the fight with Mr. Gonzalez. His injuries included a
stab wound to his left lower back that perforated his spleen and
punctured his pancreas, a stab wound to his lower left chest, two
cuts on his face, a stab wound to his right biceps, and various blunt
injuries on his mouth and other bruising. Mr. Davila died at the
hospital from his stab wounds. Mr. Gonzalez received a cut to one
finger and the back of one wrist and some abrasions on his
shoulders.
¶11 The State charged Mr. Gonzalez with murder, a first degree
felony in violation of Utah Code section 76-5-203 with a criminal-
street-gang enhancement under Utah Code section 76-3-203.1;
obstruction of justice, a second degree felony in violation of Utah
Code section 76-8-306(1); and possession of a dangerous weapon by
a restricted person, a third degree felony in violation of Utah Code
section 76-10-503(2)(b).
¶12 Prior to trial, Mr. Gonzalez stipulated to his membership in
the Dog Town gang, as well as to Mr. Davila’s membership in a
street gang. The State nevertheless moved to admit gang-related
evidence, including the testimony of gang experts. Mr. Gonzalez
opposed the admission of the gang evidence, arguing that it was
irrelevant because he had already stipulated to his and Mr. Davila’s
gang membership. The trial court ruled that the State could admit
the gang-related evidence, acknowledging that gang evidence could
be relevant to the underlying charges and that it would be
appropriate to present it to the jury for that purpose.
¶13 On the first day of trial, Mr. Gonzalez moved to bifurcate
the trial so that the jury would only hear the gang-enhancement
charge if it convicted Mr. Gonzalez of murder. The trial court met
the motion with some hesitancy, stating that “the motion is late and
4
(...continued)
six feet two-and-a-half inches tall. Witnesses testified that Mr. Davila
was “a little more stocky” and “a little meatier” than Mr. Gonzalez.
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should have been made some time ago.” Nevertheless, the court
granted the motion but made clear that the ruling did not preclude
the court from admitting “gang information that may be relevant to
the elements of the underlying offense.”
¶14 During the trial, the State called several eyewitnesses,
including Alma and Miguel. Alma and Miguel testified on the first
and second days of trial, before Mr. Gonzalez had been identified as
the assailant. Neither Alma nor Miguel knew Mr. Gonzalez’s name
and instead referred to him as either “Dog Town” or “Dog Town
guy” throughout their testimony.
¶15 The State also called two gang experts—Deputy U.S.
Marshal Richard Simonelli and Officer Esekia Afatasi of the Unified
Police Department, metro gang unit. Marshal Simonelli testified as
to the origins of the Norteño and Sureño gangs and the Utah subsets
of those gangs. He also explained the Norteño meaning of several of
Mr. Davila’s tattoos. He further testified as to the significance of the
phrase, “What’s up my ese,” explaining that if a gang member says
the phrase to a member of a rival gang, it is considered a challenge.
Finally, he testified regarding the importance of respect within gang
culture. He explained that a gang member is expected to take action
against anyone who disrespects his gang.
¶16 Officer Afatasi also provided expert testimony regarding
gang culture. Like Marshal Simonelli, he explained the rivalry
between the Norteño and Sureño gangs and their local subsets. He
also provided similar testimony regarding the significance of
referring to a gang member as “ese.” Officer Afatasi testified more
specifically about the Dog Town gang and explained the gang
meaning of several of Mr. Gonzalez’s tattoos and the gang symbols
written on the blue bandanna, blue shorts, and hat found at Mr.
Gonzalez’s residence. He also testified that gang members are
“always ready to fight” and are expected to be “battle ready” at all
times.
¶17 On the third day of trial, the State rested and Mr. Gonzalez
moved for directed verdict. He argued that the State had failed to
meet its burden as to any of the elements of the murder and
obstruction-of-justice charges. The trial court denied the motion,
holding that the State had presented sufficient evidence to send the
case to the jury. The jury thereafter convicted Mr. Gonzalez of
murder, obstruction of justice, and possession of a dangerous
weapon by a restricted person.
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¶18 After the jury verdict, the trial proceeded to the gang-
enhancement phase. The State entered into evidence the parties’
stipulation that both Dog Town and Familia Por Siempre are
criminal street gangs, that Mr. Gonzalez is a member of Dog Town,
and that Mr. Davila was a member of a criminal street gang. The
State then rested.
¶19 Once the jury had been excused to deliberate, Mr. Gonzalez
moved to dismiss the gang-enhancement charge on the grounds that
the gang-enhancement statute is unconstitutionally vague and
overbroad. The State objected, arguing that the motion was
untimely. The trial court denied the motion, stating that it
“absolutely agree[d]” with the State that the motion was untimely.
The court explained that the motion “could have been heard at any
time” and did not depend on “waiting to see if there’s a conviction.”
The trial court acknowledged that during the previous day of trial,
Mr. Gonzalez’s counsel had mentioned that she intended to make a
motion if there was a conviction on the murder charge. The court
had asked Mr. Gonzalez’s counsel to supply it with any relevant case
law, but counsel failed to do so. The trial court further explained that
it may have addressed the motion had Mr. Gonzalez raised it “even
shortly before trial,” as it did with the motion to bifurcate the gang-
enhancement charge. The trial court noted that it had set a “cutoff
date for the motions to be filed,” and that this motion was well past
the cutoff. The jury subsequently convicted Mr. Gonzalez of the
gang enhancement and, as a result, his sentence for the murder
conviction was extended by five years.
¶20 Mr. Gonzalez appeals his murder and obstruction-of-justice
convictions, as well as the gang enhancement. He argues that the
trial court erred in denying his motion for directed verdict on the
murder and obstruction-of-justice charges. He also argues that the
admission of gang-related evidence was unfairly prejudicial,
cumulative and lacked probative value where he had stipulated to
gang membership. Finally, Mr. Gonzalez argues that the trial court
erred in refusing to hear his challenge to the gang-enhancement
statute. We have jurisdiction under Utah Code section 78A-3-
102(3)(i).
STANDARD OF REVIEW
¶21 We review a trial court’s ruling on a motion for directed
verdict for correctness. Ferguson v. Williams & Hunt, Inc., 2009 UT 49,
¶ 19, 221 P.3d 205. “A trial court’s decision to admit evidence under
rule 403 of the Utah Rules of Evidence is reviewed for an abuse of
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discretion.” State v. Kell, 2002 UT 106, ¶ 29, 61 P.3d 1019. And trial
courts may exercise discretion in managing their dockets; we
therefore review a trial court’s determination that a motion is
untimely for an abuse of discretion. State v. Bergeson, 2010 UT App
281, ¶ 7, 241 P.3d 777.
ANALYSIS
I. THE TRIAL COURT CORRECTLY DENIED MR. GONZALEZ’S
MOTION FOR DIRECTED VERDICT ON THE MURDER AND
OBSTRUCTION-OF-JUSTICE CHARGES
¶22 Mr. Gonzalez first argues that the State presented
insufficient evidence to show beyond a reasonable doubt that he did
not act in self-defense when he stabbed Mr. Davila. Specifically, Mr.
Gonzalez asserts that the State’s evidence was insufficient to support
a theory that he initiated the use of force, that he and Mr. Davila
engaged in combat by agreement, or that Mr. Gonzalez acted
unreasonably when he introduced deadly force into the altercation
with Mr. Davila. He also argues that because there was insufficient
evidence to convict him of murder, there was, by extension,
insufficient evidence to convict him of obstruction of justice. He
therefore contends that the trial court erred when it denied his
motion for directed verdict on the murder and obstruction-of-justice
charges.
¶23 The State argues that Mr. Gonzalez failed to preserve his
insufficiency of the evidence claims. Specifically, the State asserts
that when Mr. Gonzalez moved for directed verdict, he merely made
blanket statements in which he listed the elements of murder and
obstruction of justice and stated that the State had not met its burden
of establishing those elements. The State argues that these objections
were not sufficiently particular to preserve Mr. Gonzalez’s argument
that there was insufficient evidence to show that he had not acted in
self-defense. The State also argues that even if Mr. Gonzalez did
preserve his sufficiency of the evidence claims, the trial court did not
err in denying Mr. Gonzalez’s motion for directed verdict because
the State introduced sufficient evidence to show that Mr. Gonzalez
did not act in self-defense.
A. Mr. Gonzalez Preserved His Sufficiency-of-the-Evidence Arguments
¶24 We first address the State’s preservation argument. “As a
general rule, claims not raised before the trial court may not be
raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. In
deciding whether a motion made in the trial court was sufficient to
preserve an argument made on appeal, we look to rule 12 of the
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Utah Rules of Criminal Procedure, which requires a motion to “state
succinctly and with particularity the grounds upon which it is made
and the relief sought.” Where the grounds upon which a motion is
made before the trial court differ from the grounds argued on
appeal, appellate courts will generally dismiss those arguments as
unpreserved. See State v. Meza, 2011 UT App 260, ¶ 4, 263 P.3d 424
(“Utah courts require specific objections in order to bring all claimed
errors to the trial court’s attention to give the court an opportunity
to correct the errors if appropriate.” (internal quotation marks
omitted)).
¶25 In this case, Mr. Gonzalez moved for directed verdict on the
grounds that the State failed to meet its burden to show that the
elements of murder and obstruction of justice had been met.
Mr. Gonzalez did not specifically argue that the State failed to meet
its burden of showing that he had not acted in self-defense when he
used deadly force against Mr. Davila. Despite this failing,
Mr. Gonzalez maintains that his self-defense argument was
preserved because “[i]t was clear from Mr. Gonzalez’s opening
statement that this case was entirely about self-defense.” Because
Mr. Gonzalez “never challenged the evidence, including his own
admission that he had stabbed [Mr. Davila],” he argues that the trial
court was “‘on notice of the asserted error’ when counsel raised a
specific challenge, supported by the evidence, in the form of a
directed verdict.”
¶26 We agree with Mr. Gonzalez. Because Mr. Gonzalez’s sole
defense to the murder charge was that he had acted in self-defense,
it would have been clear to the trial court that his claim of self-
defense was the basis for his motion for directed verdict. When the
specific ground for an objection is clear from its context, the issue is
preserved for appeal. Cf. State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867
(“Where . . . the specific ground for objection is not clear from the
context[,] the theory cannot be raised on appeal.” (second alteration
in original) (internal quotation marks omitted)). When Mr. Gonzalez
moved for directed verdict, the trial court would necessarily have
understood from the context that he was asserting that the State had
failed to meet its burden of showing that he had not acted in self-
defense. We therefore conclude that Mr. Gonzalez preserved for
appeal his motion for directed verdict on the murder charge. And
because his motion for directed verdict on the obstruction-of-justice
charge turned on his challenge to the murder charge, his claim of
error on the obstruction charge was preserved as well.
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B. The State Presented Sufficient Evidence that Mr. Gonzalez Did Not
Act in Self-Defense and Obstructed Justice
¶27 Having held that Mr. Gonzalez preserved his sufficiency of
the evidence claims, we now address their merits. A defendant must
overcome a substantial burden on appeal to show that the trial court
erred in denying a motion for directed verdict. We will uphold a trial
court’s denial of a motion for directed verdict “based on a claim of
insufficiency of the evidence” if, when viewed in the light most
favorable to the State, “some evidence exists from which a
reasonable jury could find that the elements of the crime had been
proven beyond a reasonable doubt.” State v. Montoya, 2004 UT 5,
¶ 29, 84 P.3d 1183 (internal quotation marks omitted). Mr. Gonzalez
must therefore show that, when viewed in the light most favorable
to the State, no evidence existed from which a reasonable jury could
find beyond a reasonable doubt that Mr. Gonzalez did not act in self-
defense or that he obstructed justice. Mr. Gonzalez has not satisfied
this burden.
1. The Evidence Was Sufficient to Support a Finding that
Mr. Gonzalez Was the Aggressor and Thus Did Not Act in Self-
Defense
¶28 Under Utah’s self-defense statute, “[a] person is justified
in . . . using force against another when and to the extent that the
person reasonably believes that force . . . is necessary to defend the
person . . . against another person’s imminent use of unlawful force.”
UTAH CODE § 76-2-402(1)(a). But this affirmative defense is not
available if the defendant “was the aggressor.” Id. § 76-2-
402(2)(a)(iii). We have defined “aggressor” as “one who willingly
and knowingly initially provokes a combat or does acts of such a
nature as would ordinarily lead to combat.” State v. Schoenfeld, 545
P.2d 193, 196 (Utah 1976).
¶29 When looking at the issue of aggression, evidence of a
“defendant’s verbal and physical acts at the scene of the homicide
[is] sufficient” to show that the defendant was the aggressor. State
v. Starks, 627 P.2d 88, 91 (Utah 1981). In Starks, the accused armed
himself with a gun and went to a location where he knew he would
find the victim. Id. Upon finding the victim and believing him to be
armed, the defendant verbally threatened the victim, pulled out the
gun, struggled to figure out how to operate the gun, fired shots, and
chased after the victim. Id. at 89–90. At trial, a witness testified that
the victim never produced a weapon, but only “jumped around”
asking the defendant to put away the gun. Id. at 91. Based on the
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Opinion of the Court
defendant’s conduct at the time of the altercation, we determined
that a jury instruction regarding aggression was justified. Id.
¶30 In this case, the evidence of Mr. Gonzalez’s physical and
verbal actions is likewise sufficient to support a finding that he was
the aggressor. The evidence of Mr. Gonzalez and Mr. Davila’s
interactions outside Kohl’s showed that Mr. Davila insulted
Mr. Gonzalez’s gang, supporting the State’s argument that
Mr. Gonzalez had a motive to attack Mr. Davila. The expert
testimony regarding the importance of respect and battle readiness
in gang culture supported the State’s claim that Mr. Gonzalez
instigated a fight with Mr. Davila to defend his gang’s reputation.
¶31 The video surveillance evidence also supports the
conclusion that Mr. Gonzalez was the aggressor. It showed that one
minute after Mr. Davila went into the Kohl’s restroom, Mr. Gonzalez
entered the customer service area, gave Alexis a one-armed hug
while maintaining the other hand in his pocket, and then entered the
restroom. Mr. Gonzalez then confronted Mr. Davila in the restroom
while blocking the exit. When viewed in the light most favorable to
the State, this evidence reasonably supports the conclusion that Mr.
Gonzalez knew Mr. Davila was in the restroom, that he entered the
restroom intending to fight Mr. Davila, and that he planned to use
the knife in his pocket. And the eyewitness testimony supports this
conclusion as well. The testimony of the customer who heard Alexis
tell Mr. Gonzalez to “just let it go” suggests that Alexis knew Mr.
Gonzalez was upset by Mr. Davila’s insults and planned to retaliate.
Moreover, Miguel’s testimony that, upon entering the restroom, Mr.
Gonzalez asked Mr. Davila, “What’s up ese,” showed Mr.
Gonzalez’s intent to challenge Mr. Davila.
¶32 Finally, the State’s evidence of phone records showing
numerous texts and phone calls between members of Dog Town
before and during the fight, including the text stating, “flacoz getting
down,” support the conclusion that Mr. Gonzalez planned to initiate
a fight with Mr. Davila and shared that plan with other Dog Town
members. This conclusion is further supported by the fact that
members of Dog Town arrived at Kohl’s and yelled disparaging
remarks to Mr. Davila shortly after the altercation ended.
¶33 When viewed as a whole and in the light most favorable to
the State, this evidence was sufficient to show that Mr. Gonzalez had
a motive to fight Mr. Davila, that he planned to fight Mr. Davila and
shared his plan with fellow gang members, and that he confronted
Mr. Davila in the restroom to initiate the fight. Based on this
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evidence, a reasonable jury could find beyond a reasonable doubt
that Mr. Gonzalez was the aggressor and thus did not act in self-
defense.5 We therefore affirm the trial court’s denial of
Mr. Gonzalez’s motion for directed verdict on the murder charge.
2. Because the Evidence Was Sufficient to Show that Mr. Gonzalez
Committed the Crime of Murder, the Evidence Was Also Sufficient
to Show that Mr. Gonzalez Obstructed Justice
¶34 Mr. Gonzalez also appeals the denial of his motion for
directed verdict on the obstruction-of-justice charge. A person
obstructs justice if the person “alters, destroys, conceals, or removes
any item . . . with intent to hinder, delay, or prevent the
investigation, apprehension, prosecution, conviction, or punishment
of any person regarding conduct that constitutes a criminal offense.”
UTAH CODE § 76-8-306(1). Mr. Gonzalez claims that because he acted
in self-defense, no criminal offense occurred and the evidence of him
disposing of his shirt was therefore insufficient to support a
conviction for obstruction of justice. However, because we affirm the
denial of his motion for directed verdict on the murder charge, this
argument fails. Where the evidence was sufficient to show that Mr.
Gonzalez did not act in self-defense and therefore committed the
crime of murder, the evidence was also sufficient to show that he
obstructed justice by destroying an item relevant to the investigation
of that crime. The trial court therefore correctly denied his motion
for directed verdict on this charge.
II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
WHEN IT ALLOWED THE STATE TO PRESENT GANG-
RELATED EVIDENCE DURING THE GUILT PHASE OF
THE TRIAL
¶35 Mr. Gonzalez next argues that the trial court abused its
discretion when it permitted the State to admit “cumulative and
unfairly prejudicial” gang-related evidence at trial. Because both
parties stipulated that Mr. Gonzalez and Mr. Davila were members
of gangs and because the trial court agreed to bifurcate the gang-
enhancement charge, Mr. Gonzalez contends that “testimony
concerning his gang involvement would have no probative value”
during the murder phase of trial. The State argues that the gang-
5
Because the evidence was sufficient to support a finding that
Mr. Gonzalez was the aggressor, we need not address whether the
evidence was also sufficient to show that Mr. Gonzalez and
Mr. Davila engaged in combat by agreement or that Mr. Gonzalez
acted unreasonably by introducing deadly force.
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related evidence was neither cumulative nor overly prejudicial but
was instead highly relevant to a case against a gang member who
was “charged with intentionally murdering a rival gang member for
reasons relating to his gang.” Specifically, the State argues that the
gang-related evidence was highly probative in showing intent,
motive, and lack of self-defense. We agree with the State.
¶36 Generally, relevant evidence is admissible. UTAH R. EVID .
402; see also State v. Dunn, 850 P.2d 1201, 1221–22 (Utah 1993)
(explaining that this court “indulge[s] a presumption in favor of
admissibility”). Rule 403 of the Utah Rules of Evidence provides an
exception to the general rule of admissibility by permitting courts to
“exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice . . . or needlessly
presenting cumulative evidence.” Evidence is unfairly prejudicial if
it has “an undue tendency to suggest decision on an improper
basis.” State v. Maurer, 770 P.2d 981, 984 (Utah 1989) (internal
quotation marks omitted). But even if a trial court improperly admits
unfairly prejudicial or cumulative evidence, we will not overturn a
jury verdict based on that evidence “if the admission of the evidence
did not reasonably effect the likelihood of a different verdict.” State
v. S.H., 2002 UT 118, ¶ 26, 62 P.3d 444.
¶37 Application of rule 403 in the context of gang-related
evidence presents a particularly difficult challenge because, though
often probative as to issues like motive or intent, gang-related
evidence may lead to the potential prejudice of “guilt by
association.” State v. High, 2012 UT App 180, ¶ 27, 282 P.3d 1046
(internal quotation marks omitted). But even where gang-related
evidence is prejudicial, it is not necessarily unfairly prejudicial and
therefore should be admitted where it has high probative value. See
United States v. Santiago, 643 F.3d 1007, 1011 (7th Cir. 2011) (stating
that admission of gang evidence must be made with care and
thoroughness, but the risk of prejudice does not render gang
evidence automatically inadmissible as it may be highly probative
in establishing motive and other elements of crimes.); United States
v. Irvin, 87 F.3d 860, 864 (7th Cir. 1996) (stating that in the
appropriate context “gang evidence has probative value warranting
its admission over claims of prejudice”).
¶38 In addition to its potential for being unfairly prejudicial
under rule 403, gang-related evidence may also implicate rule 404 of
the Utah Rules of Evidence, which prohibits the use of character
evidence or evidence of prior bad acts to “prove that on a particular
occasion the person acted in conformity with the character or trait.”
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UTAH R. EVID . 404(a)(1), (b)(1). Indeed, evidence of gang
membership or gang activity would be improper under rule 404 if
it is used “as a backdoor means of introducing character evidence by
associating the defendant with the gang and describing the gang’s
bad acts.” State v. Torrez, 210 P.3d 228, 235 (N.M. 2009) (internal
quotation marks omitted).
¶39 But mere evidence of gang affiliation that does not relate to
prior bad acts does not violate rule 404’s prohibition against
character evidence. See United States v. Hodges, 315 F.3d 794, 801 (7th
Cir. 2003) (“Without any testimony of particular prior bad acts [the
defendant] participated in as a gang member, we find that evidence
of his mere affiliation with the gang does not fall under Rule
404(b).”). Moreover, gang-related character or bad-acts evidence will
not violate rule 404 if it is admitted for a reason other than to show
conformity with that character trait on a particular occasion.
¶40 While trial courts must view gang-related evidence with
caution, they may admit such evidence when it is introduced for a
proper purpose and under the right circumstances. Examples of
gang-related evidence that trial courts have properly admitted
include evidence that a killing was the product of a conflict between
rival gangs, evidence showing a key witness’s fear of gang
retaliation, gang evidence explaining the circumstances surrounding
a crime and the victim’s and the defendant’s intent, and evidence
demonstrating motive based on a long-standing grudge between
rival gangs. See High, 2012 UT App 180, ¶ 23 (collecting cases where
gang-related evidence was properly admitted).
¶41 Particularly relevant to this case, in State v. Cristobal, the
court of appeals affirmed the admission of evidence showing a
gang’s territory, which the State presented to show motive and to
support its argument that the defendant was the aggressor in an
altercation that took place within the gang’s territory. 2012 UT App
181, ¶ 4, 282 P.3d 1064. The court of appeals reasoned that the
evidence, though potentially prejudicial, was probative in that it
explained “why gang members might congregate in the area and
exhibit hostility toward intruding nonmembers.” Id.
¶42 In this case, Mr. Gonzalez objects to the trial court’s
admission of gang-related evidence as unfairly prejudicial.
Specifically, Mr. Gonzalez objects to the photographic exhibits
showing gang-related tattoos and apparel, the gang expert
testimony, and witnesses’ references to Mr. Gonzalez as “Dog
Town” and “Dog Town guy.” Mr. Gonzalez argues that this
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STATE v. GONZALEZ
Opinion of the Court
evidence was “not necessary, probative, or helpful” where he had
stipulated to his and Mr. Davila’s gang membership and where the
trial had been bifurcated to separate the murder charge from the
gang-enhancement charge.
¶43 We disagree that the stipulation and bifurcation rendered
the gang-related evidence irrelevant or unfairly prejudicial. Rather,
the gang-related evidence was highly relevant to the State’s theories
of motive and intent and to Mr. Gonzalez’s claim of self-defense. The
evidence of Mr. Gonzalez’s gang-related tattoos and clothing was
relevant to establishing his loyalty to his gang and his willingness to
publicly display his gang membership. And evidence of his gang
loyalty suggested that, as a committed member of Dog Town, Mr.
Gonzalez was highly motivated to retaliate against an insult to his
gang.
¶44 Mr. Gonzalez also objects to the gang experts’ testimony,
arguing that it was both unfairly prejudicial and needlessly
cumulative. But both Marshal Simonelli and Officer Afatasi testified
to unique and relevant issues. Although their testimony overlapped
in some respects—both experts testified about the rivalry between
the Norteño and Sureño gangs, the signs and symbols of the gangs,
and the meaning of the phrase, “What’s up my ese,”—they each had
a different focus. Specifically, Marshal Simonelli testified about
Mr. Davila’s gang affiliation, whereas Officer Afatasi focused more
on Dog Town and Mr. Gonzalez’s membership in that gang. And
while each testified about gang culture, they testified as to different
aspects of that culture: Marshal Simonelli spoke to the importance
of respect among gang members and Officer Afatasi testified about
battle readiness. All of this testimony assisted the jury in
understanding the visual cues, signs, actions, and culture that would
motivate a gang-related altercation. Such testimony was therefore
highly probative of the State’s theory that Mr. Gonzalez had a gang-
related motive to attack Mr. Davila, that he instigated the fight, and
that he therefore did not act in self-defense.
¶45 Mr. Gonzalez particularly objects to what he characterizes
as the prejudicial effect of Officer Afatasi’s testimony regarding gang
members’ battle readiness. We acknowledge that this evidence was
prejudicial. But the State had a noncharacter purpose for admitting
it: to show that even if he did not instigate the fight, Mr. Gonzalez
engaged in combat by agreement, thereby discrediting his self-
defense argument. See UTAH CODE § 76-2-402(2)(a)(iii) (describing
the combat by agreement exception to self-defense). This testimony
therefore did not violate rule 404's prohibition on character
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Opinion of the Court
testimony. And because the State’s theory in this case depended on
proving a lack of self-defense, this expert testimony was highly
probative. We therefore cannot say that the trial court abused its
discretion in finding that the probative value of this evidence
outweighed its risk of unfair prejudice.
¶46 Finally, Mr. Gonzalez objects to Alma’s and Miguel’s
testimony, during which they referred to Mr. Gonzalez as “Dog
Town” or “Dog Town guy.” But when Alma and Miguel testified,
Mr. Gonzalez had not yet been identified as the assailant. Indeed,
neither Alma nor Miguel knew Mr. Gonzalez’s name. Their use of
the term “Dog Town guy” was merely their way of referring to the
man who had the Dog Town tattoo. These references served to
identify Mr. Gonzalez as the man Alma and Miguel saw outside of
Kohl’s and later in the Kohl’s restroom. Although this testimony
may have had the prejudicial effect of intertwining Mr. Gonzalez’s
identity with his gang affiliation, it did not rise to the level of unfair
prejudice. Where the State presented other substantial evidence of
Mr. Gonzalez’s guilt, Alma and Miguel’s references to Mr. Gonzalez
as “Dog Town guy” had little if any effect on the outcome of the
trial, other than to identify Mr. Gonzalez as the assailant. This
evidence was therefore not unfairly prejudicial because it did not
have “an undue tendency to suggest decision on an improper basis.”
Maurer, 770 P.2d at 984 (internal quotation marks omitted).
¶47 In sum, because the State’s case was dependent on gang-
related evidence to show motive and intent and to disprove
Mr. Gonzalez’s self-defense argument, that evidence was highly
probative. Although the gang evidence was prejudicial in that it
showed Mr. Gonzalez’s affiliation with and commitment to a
criminal organization, the evidence was not unfairly prejudicial
where the State’s case hinged on gang rivalries. The trial court
therefore did not abuse its discretion in admitting such evidence.
III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY
REJECTING AS UNTIMELY MR. GONZALEZ’S POST-TRIAL
CHALLENGE TO THE CONSTITUTIONALITY OF THE GANG-
ENHANCEMENT STATUTE
¶48 Mr. Gonzalez’s final argument is that the trial court abused
its discretion when it dismissed as untimely his post-trial
constitutional challenge to the gang-enhancement statute.6 We
6
The gang-enhancement statute provides that a person who
commits one of the enumerated crimes, including murder,
(continued...)
15
STATE v. GONZALEZ
Opinion of the Court
disagree. Trial courts have broad discretion “to manage [their]
docket[s] and set firm deadlines for motion practice.” State v.
Bergeson, 2010 UT App 281, ¶ 7, 241 P.3d 777. This discretion “is not
limited by the importance or constitutional nature of the motion at
issue.” Id. Where a party brings a motion after the deadline set by
the trial court, the Utah Rules of Criminal Procedure allow trial
courts to consider the motion waived. UTAH R. CRIM . P. 12(f)
(providing that “[f]ailure of the defendant to timely raise defenses
or objections . . . at the time set by the court shall constitute waiver
thereof”). Recognition of the trial court’s prerogative to manage its
docket serves a number of beneficial interests, including promoting
judicial efficiency and economy, creating a predictable system of
advocacy, fostering finality in convictions, and reducing litigation
expenses. See State v. Belgard, 811 P.2d 211, 214 (Utah Ct. App. 1991).
¶49 In this case, Mr. Gonzalez brought his motion to dismiss the
gang-enhancement charge on the final day of trial, after the jury had
convicted him of all other charges. In denying the motion as
untimely, the trial court reasoned that Mr. Gonzalez’s ability to bring
the motion was not dependent on whether Mr. Gonzalez was
convicted of murder. Rather, Mr. Gonzalez could have brought the
motion at any time. Moreover, Mr. Gonzalez failed to adhere to the
trial court’s request that he supply the court with legal authority
supporting his motion.
¶50 Although the trial court had previously granted
Mr. Gonzalez’s untimely motion to bifurcate the gang-enhancement
charge, the court’s willingness to entertain one untimely motion did
not open the door to all untimely motions. Instead, the trial court
gave both parties ample opportunity to present issues in a timely
manner by establishing motion cutoff dates, demonstrating a
willingness to consider even untimely motions raised prior to trial
(as it did with the motion to bifurcate), and inquiring throughout
6
(...continued)
is subject to an enhanced penalty for the offense . . . if
the trier of fact finds beyond a reasonable doubt that
the person acted: (a) in concert with two or more
persons; (b) for the benefit of, at the direction of, or in
association with any criminal street gang as defined in
Section 76-9-802; or (c) to gain recognition, acceptance,
membership, or increased status with a criminal street
gang as defined in Section 76-9-802.
UTAH CODE § 76-3-203.1(2).
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LEE, J., concurring in part and concurring in the judgment
trial if the parties wished to address any matters to the court. But
Mr. Gonzalez waited until the eleventh hour to bring his motion
without demonstrating good cause for doing so. The trial court
therefore did not abuse its discretion in denying the motion as
untimely.
CONCLUSION
¶51 We affirm Mr. Gonzalez’s convictions for obstruction of
justice and murder with a gang enhancement. The trial court
properly denied Mr. Gonzalez’s motion for directed verdict because
the evidence was sufficient for a reasonable jury to find beyond a
reasonable doubt that Mr. Gonzalez was the aggressor and therefore
did not act in self-defense when he stabbed Mr. Davila. The trial
court also correctly denied Mr. Gonzalez’s motion for directed
verdict on the obstruction-of-justice charge. The trial court did not
abuse its discretion in admitting gang-related evidence under rule
403 because its probative value was not substantially outweighed by
a danger of unfair prejudice, nor was it needlessly cumulative.
Finally, the trial court did not abuse its discretion in denying as
untimely Mr. Gonzalez’s post-trial challenge to the constitutionality
of the gang-enhancement statute because Mr. Gonzalez did not show
good cause for failing to bring the motion in a timely manner.
JUSTICE LEE, concurring in part and concurring in the judgment:
¶52 I concur in the majority’s opinion affirming the district
court’s admission of gang-related evidence and rejecting Gonzalez’s
constitutional challenge to the gang enhancement statute. I also
agree with the ultimate disposition of Gonzalez’s challenge to the
sufficiency of the evidence (affirmance). I write separately, however,
because I find Gonzalez’s argument on that point unpreserved, and
would not reach its merits.
¶53 Under our preservation doctrine, we do not reach the merits
of an argument on appeal unless the appellant “(1) specifically
raise[d] the issue [in the trial court], (2) in a timely manner, and (3)
support[ed] the claim with evidence and relevant legal authority.”
Salt Lake City Corp. v. Jordan River Restoration Network, 2012 UT 84,
¶ 27, 299 P.3d 990 (emphasis added) (internal quotation marks
omitted). The majority concedes that “Gonzalez did not specifically
argue that the State failed to meet its burden of showing that he had
not acted in self-defense” in his directed verdict motion. Supra ¶ 25
(emphasis added). Yet the court asserts that the trial court was
“necessarily” aware that this was the basis of the motion because
17
STATE v. GONZALEZ
LEE, J., concurring in part and concurring in the judgment
Gonzalez’s theory of the case was self-defense, and on that basis
concludes that the matter was preserved. Supra ¶ 26.
¶54 I disagree. At the close of the evidence, defense counsel
moved for a directed verdict on these grounds:
[The State has] not met [its] burden in establishing that
this was knowingly, intentionally done . . . , that Mr.
Gonzalez intended to cause serious bodily injury and
committed an act clearly dangerous to human life
causing the death, that he acted under circumstances
evidencing a depraved indifference to human life,
knowingly engaged in conduct which created a grave
risk of death to another, thereby causing the death of
another. None of those elements have been met with the
evidence that has come over the last couple of days.
(Emphasis added). Gonzalez’s motion was about mens rea. Neither
the motion nor the State’s response had anything to do with self-
defense. The State’s response to the motion was along the same lines.
In the prosecution’s words, “when you stab somebody seven times,
especially if it’s in the torso and the face . . . you’re intending to
cause serious bodily injury death or evidencing a depraved
indifference.”
¶55 Both parties’ arguments thus centered on the issue of mens
rea, and said nothing of self-defense. The trial court accordingly did
not have a “meaningful opportunity” to address the issue. Hill v.
Superior Property Mgmt. Servs. Inc., 2013 UT 60, ¶ 46, 321 P.3d 1054.
I would affirm on that basis, without reaching the merits of the
sufficiency of the evidence argument.
18