State v. Romero , 2016 Utah App. LEXIS 252 ( 2016 )

2016 UT App 242THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JESUS MARIA ROMERO,
Appellant.
Opinion
No. 20141066-CA
Filed December 15, 2016
Fourth District Court, Provo Department
The Honorable Fred D. Howard
No. 131401244
Aaron P. Dodd, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
GREGORY K. ORME and J. FREDERIC VOROS JR. concurred.
TOOMEY, Judge:
¶1 Defendant Jesus Maria Romero appeals his conviction for
sodomy on a child, contending the trial court’s admission into
evidence of details of a prior conviction was an abuse of
discretion that prejudiced him. We agree and remand for a new
trial.
State v. Romero
BACKGROUND1
¶2 In January 2010, the child in question (Child) and her
family were visiting Utah from another state. One evening,
three-year-old Child and her brother stayed with their
grandmother while their parents went out. Romero was also at
Grandmother’s home during the children’s stay. Grandmother
prepared dinner for the children, which they ate in the ‚great
room‛—a room open to the kitchen and dining areas—while
watching a movie. During dinner, Child spilled juice on the front
of her pants and ‚all over the *hardwood+ floor.‛ Romero was
angry about this and brought a dishtowel from the kitchen to
clean up the spill. While Grandmother was on her hands and
knees mopping the spill with the dishtowel, Romero took Child
to the kitchen to clean her. No one else was in the kitchen, and
Grandmother could not see them from her position in the great
room. Brother was sitting on a couch, facing away from the
kitchen. Child testified that while she and Romero were alone in
the kitchen, Romero pulled her underwear ‚down to *her+ feet‛
and licked her ‚peepee‛ with his tongue. Grandmother testified
that Romero and Child were in the kitchen between thirty
seconds and two minutes.
¶3 When Grandmother finished mopping the spill, she went
to the kitchen and met Romero coming down the hallway from
the laundry room. Grandmother, Romero, and Child met at the
point where the great room, kitchen, and hallway converged.
Coco, a small dog belonging to Grandmother, ‚jumped up on
[Child] and tried to sniff her little spot where she had her apple
juice.‛ Romero ‚snapped at [Child] and said, ‘Don’t let her lick
1. ‚On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.‛ State v. Thornton, 2014 UT App 265, ¶ 2 n.1, 339 P.3d 112(citation and internal quotation marks omitted).
20141066-CA 2 2016 UT App 242State v. Romero
your peepee.’‛ The three of them joined Brother in the great
room and resumed watching the movie; Romero fell asleep on
the couch.
¶4 A few weeks later, Child told her mother about the
incident. Two days later, Mother called Grandmother and told
her what Child had disclosed to her. Mother told Grandmother
to talk to Romero and call back when she was ready. Romero
called the next day and confirmed that Child had spilled her
juice and he had taken her into the kitchen to clean her. Romero
told Mother that he walked to the laundry room and came back
to find ‚the dog . . . licking [Child] in her private area‛; ‚[Child]
was kind of giggling and said, ‘Hey, look . . . . Coco’s licking my
peepee.’‛ Romero encouraged Mother to ‚call the authorities‛ to
report the allegation against him.
¶5 About a month later, a licensed social worker
(Interviewer) conducted a forensic interview with Child and
Mother. Mother was interviewed first and told Interviewer
‚what [Child] had said to [her] and what had happened‛ and
then Child was interviewed. During the interview, Child
identified the chest area and genitals as ‚privates‛ and when
asked if someone had ever touched those parts of her body, she
shook her head ‚no.‛ She also denied talking to Mother about
her ‚privates‛ and that anything bad had happened to her. But
when asked, ‚Do you know why you came here today?‛ she
responded, ‚To tell what happened.‛ When asked what had
happened, she said Romero ‚licked my peepee.‛ Interviewer
later testified that, to young children, ‚touching involves fingers
or hands‛ and ‚licking is a completely different action than
touching.‛ But Interviewer conceded that she ‚wouldn’t be able
to state that [she knew] that [Child] perceives touching as fingers
and not as tongue.‛
¶6 Two years later, when Child was five years old, a
different social worker (Social Worker) conducted a second
20141066-CA 3 2016 UT App 242State v. Romero
forensic interview with Child. In the second interview Child
again denied that anyone touched her ‚*private+ parts.‛
¶7 Social Worker did not testify at trial; rather, Interviewer
reviewed the second interview in preparation for trial.
Interviewer indicated she had some concerns about the second
interview: that Social Worker did not take time to build
‚rapport‛ with Child and did not ‚have any background
information on [Child] or the specific allegations,‛ that the
interview mainly focused on touching, and that Social Worker
seemed unaware of ‚the cultural issues.‛2 Interviewer indicated
she did not ‚consider [the] second interview a recantation of
[Child]’s story.‛ Interviewer emphasized that Child said that
Romero ‚looked at her peepee‛ and that Child was still able to
‚provide*+ quite a bit of detail*+‛ not provided in the first
interview. Mother testified that Child did not want to go to the
second interview, that Mother ‚had to force her pretty much to
get in the car,‛ and that Child was crying the ‚whole way there.‛
Mother also testified that, when they were home, Child told
Mother she had lied in the interview with Social Worker because
she was scared.
¶8 At trial in March 2014, when Child was seven years old,
she testified that she spilled juice on her pants while she and
Brother were watching a movie in the great room. She testified
that Romero ‚took [her] into the kitchen‛ to ‚clean [her] up.‛
Child stated that Romero pulled her pants down to her feet and
2. Interviewer elaborated on what she meant by using the term
‚cultural issues.‛ According to Interviewer, Social Worker told
Child that she knew children who had two mothers or two
fathers and asked Child if she had two fathers. Interviewer
stated, ‚The reason I say that that may have been a cultural issue
is because knowing the background of the family, knowing that
her family—her parents were not divorced, and that may not be
a part of their culture, it was very confusing to her.‛
20141066-CA 4 2016 UT App 242State v. Romero
‚licked me in my private‛ with his tongue. She indicated that the
kitchen and living room areas are the same room, that no one
else was present in the kitchen area, and that she could not see
Grandmother or Brother when she was in the kitchen with
Romero. Child testified that she told Brother, Mother, and her
father about the incident, as well as ‚a lady‛—referring to
Interviewer. Child also stated she told another person—
apparently Social Worker—that ‚nothing ever happened‛
because she was scared and ‚didn’t want to tell her.‛
¶9 Romero also testified at trial. He said that Child spilled
her juice and he took her into the kitchen to clean her. He stood
her on the counter and ‚cleaned the front of her up‛ with some
dishtowels. After that, he ‚walked down the hallway . . . into the
laundry room‛ to put the dishtowels in the laundry. There are
differing accounts as to what happened next. Grandmother
testified that when Romero came back, he met Grandmother and
Child where the hallway converged with the kitchen; Coco was
also there and jumped on Child. Grandmother stated that
Romero ‚snapped at *Child+ and said, ‘Don’t let her lick your
peepee.’‛ Romero testified that only he and Child were in this
area at the time, that Child said, ‚Coco was licking my peepee,‛
and that he responded, ‚Coco did not lick your peepee. Go see
your Nana.‛ Romero also indicated there was ‚a lot of visibility‛
between the ‚kitchen counter [and] the great room‛ and that he
was in the kitchen with Child ‚two or three minutes, maybe, at
the most.‛ He denied licking Child.
¶10 On cross-examination, the prosecutor asked Romero,
‚You have been convicted of a crime of dishonesty in the past,
haven’t you?‛ Romero responded, ‚[Y]es.‛ Prosecutor asked
Romero if the ‚crime was unemployment compensation fraud,‛
and Romero confirmed it was. Finally, Prosecutor asked if it was
a third degree felony and if the conviction occurred in April
2003. Romero responded that he did not know it was a felony at
the time, that he did not know exactly when he was convicted
20141066-CA 5 2016 UT App 242State v. Romero
but that April 2003 was ‚probably too far,‛ and that he did not
know what month it was.
¶11 On redirect, Romero testified that he pleaded guilty to the
unemployment compensation fraud, against the advice of his
attorney, because he was guilty of the offense. He stated that he
‚took responsibility for it,‛ and his attorney was very angry that
he admitted responsibility for it.
¶12 The supplemental record indicates that before
‚*P+rosecutor began his recross, . . . [P]rosecutor asked for
counsel to approach the bench.‛3 Off the record, Prosecutor
‚asserted that Romero had opened the door for the State to ask
further details about Romero’s prior conviction for fraud.‛ The
court allowed Prosecutor to ‚ask questions about the details of
Romero’s prior conviction‛ over defense counsel’s objection. On
recross examination, Prosecutor elicited that Romero took
unemployment checks for twenty-three weeks after Romero
started working; that Romero had to repay $7,200; and that
Romero indicated ‚more than once‛ that he was not working
when he actually was. Prosecutor then engaged Romero in the
following colloquy:
Q. Okay, so you would be shocked to learn that it
was 23 different times that you let compensation
fraud know that you were working—I’m sorry, the
compensation office know that you were
working—or were not working when you actually
were [] working?
A. Is that what it was?
3. On appeal, the parties stipulated to supplementing the record
under rule 11 of the Utah Rules of Appellate Procedure with a
declaration from Romero’s trial counsel explaining what
transpired during the sidebar, which went unrecorded during
trial.
20141066-CA 6 2016 UT App 242State v. Romero
Q. That is what it was. Would that shock you to
know that you did it that many times?
A. Yeah, that would be.
Q. Okay.
A. Because, I mean, I’m just—
Q. My next question is, is after you would tell them
you weren’t working, they would send you a
weekly check, correct?
A. That is correct, yes.
Q. And you accepted those checks?
A. And cashed them, yes.
Q. Cashed them and used them for your personal
purposes?
A. I wouldn’t say personal . . . . Yeah.
Q. Would you be shocked to learn that you told
when you were sentenced, the Adult Probation
and Parole, that you needed that money to pay for
your child support?
A. I’m sorry, *Prosecutor+, I never—I never went in
front of an Adult Probation person.
Q. Were you ever sentenced on this felony?
A. The only thing I was sentenced, the Judge
sentenced me to 45 days of work to—and said that
I—gave me 45 days, didn’t give me a specific—
didn’t say I had—
Q. Okay.
A. —to do it in 45 days, but I just did, 45 hours—
no, 45 days of work service—
Q. It’s your testimony—
A. —for the State.
Q. —it’s your testimony today that you did not—
you weren’t placed on probation for a felony
crime?
A. No, sir.
20141066-CA 7 2016 UT App 242State v. Romero
¶13 The court gave the jury a cautionary instruction that it
should not consider evidence ‚that the defendant was
previously convicted of a crime‛ as ‚evidence that the defendant
is guilty of the crime for which he is now on trial.‛ The court
instructed that ‚*t+his evidence was brought to your attention
only to help you evaluate the credibility of the defendant as a
witness.‛
¶14 During closing arguments, Prosecutor stated, ‚This case
really comes down to [Child+’s testimony and [Romero+’s
testimony. . . . [T]his case is a case of credibility. Who is more
credible, the seven-year-old [Child] or the adult, Mr. Romero?‛
Prosecutor further stated, ‚You’ve heard of *Romero+’s prior
conviction, that he’s been convicted in the past.‛ After
reminding the jury of the instruction that the prior conviction
evidence could not be used as evidence that Romero was guilty
of this crime, Prosecutor stated, ‚What you can use that evidence
for is to judge his credibility . . . . So that’s another thing to
consider; and I submit to you a huge thing to consider [is] the
credibility of his testimony.‛
¶15 During deliberations, the jury asked one question: ‚The
defendant answered ‘no’ when asked if he was on probation for
his previous felony. Can you verify this (if he was on
probation)?‛ The court responded, ‚The trial having concluded,
no additional evidence may be presented.‛
¶16 The jury returned a verdict of guilty. Romero was
convicted and sentenced to an indeterminate term of twenty-five
years to life in prison. Romero appeals.
ISSUE AND STANDARD OF REVIEW
¶17 On appeal, Romero contends ‚the trial court abused its
discretion by allowing the State to question Romero about his
20141066-CA 8 2016 UT App 242State v. Romero
prior conviction.‛4 ‚We review a trial court’s evidentiary rulings
for an abuse of discretion.‛ State v. Alzaga, 2015 UT App 133,
¶ 31, 352 P.3d 107.
ANALYSIS
¶18 Romero contends the trial court abused its discretion by
allowing the State to question him about his prior conviction for
unemployment fraud and this error so prejudiced him as to
merit a new trial. ‚Evidence of prior convictions may be used to
impeach a testifying defendant’s credibility as a witness.‛ State v.
Tucker, 800 P.2d 819, 822 (Utah Ct. App. 1990); see also Utah R.
Evid. 609(a)(2). Unless a defendant ‚open*s+ the door‛ by
‚attempt*ing+ to explain away the effect of the conviction or to
minimize his guilt,‛ the ‚inquiry should be limited to the nature
of the crime, the date of the conviction and the punishment.‛
Tucker, 800 P.2d at 822–23 (citation and internal quotation marks
omitted). Because ‚collateral matters‛ may ‚prejudice the jury
against the defendant,‛ ‚*a+ prosecutor may not parade the
details of the prior crime in front of the jury.‛ Id. at 822 (citations
and internal quotations marks omitted).
¶19 In State v. Havatone, 2008 UT App 133, 183 P.3d 257, the
defendant was arrested for forgery pursuant to a warrant. Id.¶¶ 2–3. After transporting the defendant to jail, the arresting
officer discovered methamphetamine under one of the seat
cushions in the squad car. Id. ¶ 2. The defendant admitted to the
officer that she had committed forgery but denied ownership of
the drugs. Id. She was charged with one count of possession of a
4. Romero also contends that ‚Prosecutor committed misconduct
during closing arguments‛ or, ‚*i+n the alternative, *that+
Romero’s conviction should be reversed under the cumulative
error doctrine.‛ Because our resolution of the prior conviction
issue is dispositive, we do not reach Romero’s other arguments.
20141066-CA 9 2016 UT App 242State v. Romero
controlled substance. Id. ¶ 3. At trial, the court ‚allowed the
information that the arrest warrant was for forgery‛ and
permitted the arresting officer ‚to testify regarding *the
defendant’s+ statement.‛ Id.
¶20 The defendant testified that she pleaded guilty to forgery
and ‚admitted that she had told *the arresting officer] that she
had committed a forgery.‛ Id. ¶ 4. During cross-examination, the
prosecutor ‚explor*ed+ the elements of forgery,‛ including what
is required to establish intent and details about how it is
committed. Id. ¶¶ 4, 14. This court determined that ‚the trial
court abused its discretion by allowing *these+ questions‛
because ‚*t+he elaboration . . . went well beyond the limited
questions allowed [for impeachment], especially where [the
defendant] never attempted to explain away her actions
or . . . minimize her guilt respecting the forgery.‛ Id. ¶¶ 13–14.
¶21 Here, the State admits that Romero ‚acknowledge*d+ that
he entered a guilty plea and accepted responsibility for the prior
offense *and thus+ did ‘not open the door to an inquiry into any
details’ of the prior conviction.‛ (Quoting id. ¶ 15.) The State also
concedes that under Havatone ‚the trial court should have
excluded questioning about the details of *Romero’s+ prior
offense.‛ Nevertheless, the State contends the error was
harmless.
¶22 ‚The test for harmless error in cases involving an
erroneous failure to exclude prior convictions is whether, absent
the error, there was a reasonable likelihood of a more favorable
result for [the] defendant.‛ State v. Cravens, 2000 UT App 344,
¶ 13, 15 P.3d 635 (citation and internal quotation marks omitted).
¶23 The State argues that, although only Romero and Child
were present when the alleged abuse occurred, ‚*t+estimony
from the State’s other adult witnesses and from [Romero]
himself corroborated nearly all of [Child]’s other testimony.‛ The
State also argues that ‚[Child]’s explanation of the abuse itself is
20141066-CA 10 2016 UT App 242State v. Romero
entirely credible‛ because ‚it describes an event that could have
occurred within the short time [Child] and [Romero] were alone
in the kitchen, [and] . . . an event to which [Child] had not been
previously exposed, according to her mother.‛
¶24 We are not persuaded. ‚Although many types of evidence
pose a risk of unfair prejudice, conviction evidence, in particular,
carries with it unique and inherent danger of unfair prejudice.‛
Robinson v. Taylor, 2015 UT 69, ¶ 33, 356 P.3d 1230. The details of
the prior conviction that Prosecutor presented in this case go
well beyond those held to be improper in Havatone. In Havatone,
the prosecutor outlined the ways forgery can be committed but
did not elicit any specific details about what the defendant
actually did. State v. Havatone, 2008 UT App 133, ¶ 14, 183 P.3d
257. In this case, Prosecutor emphasized that Romero
misrepresented his employment status twenty-three times
during a period exceeding five months, called attention to the
method of misrepresentation and the fact that Romero had to
repay $7,200, and questioned whether Romero told Adult
Probation and Parole that he ‚needed that money to pay for . . .
child support.‛ During recross-examination, Romero also
disclosed that he was sentenced to forty-five days of work
service for the felony and denied having been placed on
probation. In addition, Prosecutor emphasized Romero’s prior
conviction in his closing argument, stating, ‚You’ve heard
evidence that the defendant has reason to lie or slant his
testimony. You’ve heard of his prior conviction . . . . I submit to
you [that evidence is] a huge thing to consider on the credibility
of his testimony.‛ The State contends that Prosecutor did not
emphasize anything inappropriate in his closing argument.
Although it is true that Prosecutor did not mention the details of
Romero’s conviction during closing, putting such an emphasis
on the conviction would have conjured for the jury all of the
information adduced about the prior conviction throughout the
trial.
20141066-CA 11 2016 UT App 242State v. Romero
¶25 And it is clear the jury considered all of this. Although it
asked a couple of questions for clarification during trial, it only
submitted one question to the court during deliberations: ‚The
defendant answered ‘no’ when asked if he was on probation for
his previous felony. Can you verify this (if he was on
probation)?‛ This question demonstrates that the jury placed
weight on Romero’s prior conviction, the details of which had
been ‚parade[d] . . . in front of the jury.‛ See State v. Tucker, 800
P.2d 819, 822 (Utah Ct. App. 1990); cf. State v. Jacobs, 2006 UT
App 356, ¶ 12, 144 P.3d 226 (‚*T+he jury’s inquiry during
deliberations concerning whether the term ‘touching’ required
skin contact demonstrates that it was in fact a problematic issue
for the jury.‛).
¶26 In State v. Emmett, 839 P.2d 781 (Utah 1992), the defendant
appealed his conviction of sodomy upon a five-year-old child. Id.
at 783. The only direct evidence of the alleged abuse was the
victim’s testimony, see id. at 786; there was ‚no physical evidence
of sexual abuse, nor was any evidence presented that the child
was presently exhibiting psychological symptoms of sexual
abuse,‛ id. at 783. During trial, evidence of the defendant’s prior
conviction for forgery was admitted, and the prosecutor made
improper comments concerning the prior conviction. Id. at 785–
86 & n.15. In ‚determining whether these errors [were] harmful,‛
our supreme court observed that ‚it is important to note that the
evidence of sodomy in th[e] case, while sufficient to support a
conviction, *was+ not compelling. The entire State’s case [was]
built on the somewhat conflicting and confused testimony of a
five-year-old child, uncorroborated by any other direct evidence
of guilt.‛ Id. at 786; see also State v. Fowers, 2011 UT App 383, ¶ 23,
265 P.3d 832 (stating that ‚*w]ithout the evidence of the prior
conviction, the jury might have been more inclined to believe
[the defendant]‛ where ‚the jury was tasked with resolving a
classic credibility contest‛ and ‚there *was+ no corroborating
nontestimonial evidence for either story‛).
20141066-CA 12 2016 UT App 242State v. Romero
¶27 Here, as in Emmett, the case against Romero is not
compelling. The State’s case ‚is built on the somewhat
conflicting . . . testimony‛ of a seven-year-old child, relaying an
event that allegedly occurred when she was three years old. See
Emmett, 839 P.2d at 786. There is no physical evidence of abuse
or evidence of psychological symptoms consistent with sexual
abuse. Child’s testimony is the only direct evidence of guilt, and
her statements were sometimes inconsistent. In her first forensic
interview, when Interviewer asked Child if anyone had ever
touched the private areas of her body, Child shook her head
‚no.‛ Child also told Social Worker that no one had ever touched
what Social Worker called her ‚private parts.‛ Although Child
told Mother that she lied during this interview, she gave
different statements to different people about whether any abuse
occurred. Interviewer attempted to minimize these discrepancies
by testifying that young children often interpret touching to
‚involve*] fingers or hands.‛ ‚While it cannot be expected that
the testimony of a young child should be as coherent as the
testimony of an adult, confusion and discrepancies in [her]
testimony nonetheless affect the strength of the State’s case.‛ See
id. And the introduction of details of a prior conviction may be
more harmful when the evidence against the defendant ‚is not
compelling.‛ Id.
¶28 The State argues that because other aspects of Child’s
testimony were corroborated by Grandmother and by Romero
himself, there is still enough evidence to support Romero’s
conviction. But there is no corroborating testimony on the most
salient fact: whether Romero actually perpetrated sodomy upon
Child. Rather, as the State acknowledges, because only Romero
and Child were in the kitchen at the time of the alleged abuse,
‚this case is about credibility. . . . It’s about [Romero+’s
credibility, and [Child+’s credibility.‛ And ‚[i]n close cases‛ like
this one where the State’s case is primarily built upon the
‚somewhat conflicted‛ testimony of the alleged victim, ‚the
substantive use of a prior conviction can often tilt the balance in
20141066-CA 13 2016 UT App 242State v. Romero
favor of conviction, particularly . . . where *the defendant’s+
character is at the heart of his defense.‛ Id.¶29 ‚If there is a reasonable likelihood that, absent the error,
there would have been a more favorable result for the defendant,
then his conviction must be reversed.‛ State v. Iorg, 801 P.2d 938,
941 (Utah Ct. App. 1990). ‚An error is prejudicial if ‘absent the
error, there is a reasonable likelihood of a more favorable
outcome for the appellant . . . .’‛ State v. Isom, 2015 UT App 160,
¶ 28, 354 P.3d 791 (quoting State v. Dunn, 850 P.2d 1201, 1208
(Utah 1993)). We conclude that in this case, as in Emmett, had
Prosecutor not emphasized the details of Romero’s perpetration
of fraud, there is a reasonable likelihood that ‚there would have
been a more favorable result for‛ Romero. Iorg, 801 P.2d at 941.
We therefore determine that the admission of the details of
Romero’s prior conviction was prejudicial.
CONCLUSION
¶30 We conclude that the trial court’s admission of the details
of Romero’s prior conviction was prejudicial. Accordingly, we
vacate his conviction and remand the case for a new trial.
20141066-CA 14 2016 UT App 242