State v. Dominguez

2019 UT App 116THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JULIO ALPHONSO DOMINGUEZ,
Appellant.
Opinion
No. 20170618-CA
Filed July 5, 2019
Second District Court, Ogden Department
The Honorable Scott M. Hadley
No. 161900320
Troy L. Booher and Freyja R. Johnson, Attorneys
for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES JILL M. POHLMAN and RYAN M. HARRIS
concurred.
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,
State v. Dominguez
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
1. Testimony at trial conflicted as to whether the touching was
intentional or unintentional.
20170618-CA 2 2019 UT App 116State v. Dominguez
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
20170618-CA 3 2019 UT App 116State v. Dominguez
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
2. We quote the statement as recited by defense counsel in his
questioning of Witness, since that is the statement contained in
the record on appeal. But we acknowledge, as discussed further
below, see infra ¶¶ 26–29, that there is a question as to the
accuracy of the statement. According to Dominguez’s appellate
counsel, the recording of the statement demonstrates that
Witness’s actual statement to police was, “They were in the back
of the bedroom, and then once the boys all got in the bedroom,
the girls ran out and went out probably to the car, I’m guessing.”
Dominguez seeks a remand pursuant to rule 23B of the Utah
Rules of Appellate Procedure to have the recording be made part
of the appellate record. See infra ¶ 14.
20170618-CA 4 2019 UT App 116State v. Dominguez
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
20170618-CA 5 2019 UT App 116State v. Dominguez
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
20170618-CA 6 2019 UT App 116State v. Dominguez
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 that it fell below an objective
20170618-CA 7 2019 UT App 116State v. Dominguez
standard of reasonable professional judgment” and, second,
“that counsel’s deficient performance was prejudicial—i.e., that
it affected the outcome of the case.” State v. Litherland, 2000 UT
76, ¶ 19, 12 P.3d 92 (citing Strickland v. Washington, 466 U.S. 668,
687–88 (1984)).
¶17 “It is fundamental that the State carries the burden of
proving beyond a reasonable doubt each element of an offense,
including the absence of an affirmative defense once the defense
is put into issue.” State v. Low, 2008 UT 58, ¶ 45, 192 P.3d 867(quotation simplified). Nevertheless, we have previously
rejected the argument that the State’s burden to disprove an
affirmative defense must be incorporated into the elements
instruction as opposed to being listed in a separate instruction. 3
See State v. Painter, 2014 UT App 272, ¶¶ 7–8, 339 P.3d 107; State
v. Lee, 2014 UT App 4, ¶ 24, 318 P.3d 1164.
¶18 Dominguez asserts that this case is distinguishable from
Painter and Lee because this case involves multiple defendants
charged with different combinations of crimes. In Lee, although
3. There is conflicting precedent from our supreme court on the
question of whether the lack of an affirmative defense should be
considered an element of the crime. See State v. Painter, 2014 UT
App 272, ¶ 8 n.2, 339 P.3d 107 (comparing our supreme court’s
conflicting holdings in State v. Knoll, 712 P.2d 211 (Utah 1985),
and State v. Low, 2008 UT 58, 192 P.3d 867). Regardless of the
answer to this question, however, jury instructions are to be read
together to assess whether the jury was properly instructed, see
id., and “all of the elements of the charged crime” need not
“necessarily be contained in one instruction,” State v. Laine, 618
P.2d 33, 35 (Utah 1980). Thus, our ultimate inquiry concerns
whether the jury instructions “taken as a whole” adequately
instructed the jury. See State v. Lee, 2014 UT App 4, ¶ 23, 318 P.3d
1164 (quotation simplified).
20170618-CA 8 2019 UT App 116State v. Dominguez
the defendant was charged with several crimes, the separate self-
defense instruction specifically linked the affirmative defense to
the murder charge and lesser-included manslaughter charge. See
Lee, 2014 UT App 4, ¶¶ 1, 24. And in Painter, the defendant was
charged with only one crime—aggravated assault—so there was
no danger of the jury confusing which crime the affirmative
defense applied to. See Painter, 2014 UT App 272, ¶¶ 3, 9.
¶19 Here, there is no language explicitly linking the defense-
of-others instruction to the aggravated burglary charge. The
instruction simply informs the jury of the legal standard for a
defense-of-others affirmative defense as well as the State’s
burden of proof with respect to that defense. Dominguez claims
that the instruction’s failure to explicitly link defense of others to
the aggravated burglary charge left the jury with no information
as to how to apply the defense. He further asserts that defense of
others does not intuitively apply to the elements of burglary and
that there was therefore a danger that the jury would apply the
defense to one of the other charges—aggravated robbery or
assault—and not believe that defense of others is a defense to
aggravated burglary.
¶20 In reviewing the adequacy of jury instructions, “we look
at the jury instructions in their entirety and will affirm when the
instructions taken as a whole fairly instruct the jury on the law
applicable to the case.” Lee, 2014 UT App 4, ¶ 23 (quotation
simplified). We must also “consider a reasonable jury’s
understanding in the context of the jury instructions and the
record as a whole.” State v. Crowley, 2014 UT App 33, ¶ 13, 320
P.3d 677 (quotation simplified). “Even if one or more of the
instructions, standing alone, are not as full or accurate as they
might have been, counsel is not deficient in approving the
instructions as long as the trial court’s instructions constituted a
correct statement of the law.” Lee, 2014 UT App 4, ¶ 23
(quotation simplified).
20170618-CA 9 2019 UT App 116State v. Dominguez
¶21 There is no dispute that the defense-of-others instruction
accurately instructed the jury regarding the applicable law,
including the State’s burden to disprove the defense beyond a
reasonable doubt. Additionally, as in Lee, the jury was instructed
that “[a]ll the instructions are important,” to “consider them as a
whole,” and that the “order in which [they] are given” had no
bearing on their importance. Cf. id. ¶ 25. While the defense-of-
others instruction was given in the context of multiple charges
without specifying the charge to which it applied, we have no
basis for concluding that the jury would have interpreted this
lack of specificity to mean that the defense did not apply to the
aggravated burglary charge. Rather, the lack of language linking
the instruction to a specific charge would most logically have
been read as an instruction that the State was required to
disprove defense of others with respect to all of the charges,
including aggravated burglary.
¶22 Further, even assuming, as Dominguez asserts, that
defense of others is not intuitively linked to an aggravated
burglary charge, the link was apparent in the context of this case.
Indeed, as in Lee, this affirmative defense was “the central theme
of [Dominguez’s] defense at trial.” See id. The entire trial focused
on the question of the defendants’ motivation for entering
Victim’s room—was it for the purpose of protecting two women
trapped in the room with Victim, or was it for the purpose of
continuing to assault Victim? If there was any question as to the
applicability of defense of others to the aggravated burglary
charges, it was cleared up by the codefendants’ counsel in
closing arguments, each of whom clearly argued that their
clients should be acquitted of aggravated burglary based on
defense of others. Dominguez’s counsel stated,
So if that’s the purpose of their breaking down the
door and going in there . . . it’s a defense of
others. . . . They had a right to defend those young
ladies. They did what they should have done.
20170618-CA 10 2019 UT App 116State v. Dominguez
....
. . . . [I]n order to find . . . any of the [defendants]
guilty of the aggravated burglary, . . . the
prosecution has to prove beyond a reasonable
doubt that the intent when they broke in that door
was to assault, and not to save these girls.
....
So at the end of the day I’m asking you to find
[Dominguez] not guilty of aggravated burglary.
Duran’s counsel likewise explained that it was “right” for the
defendants to “break down the door to come to the aid of”
the two women, and J. Martinez’s counsel explained that
the defendants entered the room for the purpose of “get[ting]
the gals out.” Finally, D. Martinez’s attorney explicitly linked
the defense-of-others instruction to the aggravated burglary
charge:
Instruction No. 60 is . . . about defense of self or
others. . . .
Just be clear that we’re not talking about these
four individuals defending themselves against
[Victim]. We’re talking about them going into the
bedroom to defend the two ladies from [Victim],
okay?
....
So that’s what this instruction has to do with. . . .
. . . . [T]his instruction talks about the bedroom and
the girls in there.
20170618-CA 11 2019 UT App 116State v. Dominguez
Thus, “defense counsel’s arguments ma[d]e it abundantly clear”
that defense of others applied to the aggravated burglary
charges. See State v. Lambdin, 2017 UT 46, ¶ 48, 424 P.3d 117.
¶23 In context, there is not “a reasonable likelihood that the
jurors were misled or confused as to the correct legal standard.”
See id. ¶ 47. Thus, counsel did not perform deficiently by not
objecting to the instructions as written. 4
II. Remand Under Rule 23B of the Utah Rules of Appellate
Procedure Is Not Appropriate, Because Dominguez’s Proffered
Facts Cannot Support a Determination That Counsel
Was Ineffective.
¶24 Dominguez next asserts that counsel was ineffective
because he incorrectly quoted Witness’s police statement when
impeaching Witness. Because the record does not contain the
purportedly “accurate” version of the police statement, we are
unable to fully review Dominguez’s claim on appeal. See State v.
Griffin, 2015 UT 18, ¶ 16, 441 P.3d 1166 (“[A] defendant cannot
bring an ineffective assistance of counsel claim on appeal
without pointing to specific instances in the record
demonstrating both counsel’s deficient performance and the
prejudice it caused the defendant.”).
¶25 In light of the inadequate record, Dominguez has
asked that we remand this case to the trial court under rule
23B of the Utah Rules of Appellate Procedure “for entry
of findings of fact, necessary for . . . determination of a claim
4. We also find it noteworthy that not one, but four separate
defense attorneys, representing four separate clients, approved
the instructions as written. While not dispositive, this bolsters
our conclusion that, in context, the applicability of the defense-
of-others instruction to the aggravated burglary charges was
clear to the jury.
20170618-CA 12 2019 UT App 116State v. Dominguez
of ineffective assistance of counsel” on appeal. See Utah R.
App. P. 23B(a). To obtain such a remand, Dominguez must
make “a nonspeculative allegation of facts, not fully appearing
in the record on appeal, which, if true, could support a
determination that counsel was ineffective.” Id. The State
opposes Dominguez’s motion, asserting that the additional
facts were insufficient to support a determination that
counsel was ineffective, because the complete quoted
statement would have done little more to undermine Witness’s
testimony than counsel’s paraphrase at trial of her police
statement. 5
5. The State also asserts that the jury was likely to have convicted
the defendants of aggravated burglary based on their
“remaining” in the room, regardless of its determination as to
the purpose of the defendants’ initial entry into the room. We are
not persuaded by this assertion. Although the jury was
instructed that an element of the crime was whether the
defendant “[e]ntered or remained unlawfully in a building, or any
separately secured or occupied portion of a building,” (emphasis
added), the State never articulated to the jury the theory it now
asserts—that the defendants may have abandoned their action of
defending others when they remained in the room to assault
Victim after discovering that the women were unharmed. While
this is a viable theory of the case, the fact that it was not
explained to the jury gives us pause in concluding, as the State
urges, that the jury was likely to have convicted the defendants of
aggravated burglary on a “remaining” theory even if it believed
that the defendants initially entered the room to defend the
women. We ultimately need not address this question, however,
because we agree with the State that the subtle variation
between the quoted language of Witness’s police statement and
the paraphrased language was not significant enough to have
prejudiced the defense.
20170618-CA 13 2019 UT App 116State v. Dominguez
¶26 Apart from Victim, Witness was the only person to
definitively testify at trial that the women were not in the room
when the defendants broke down the door. She testified that the
two women were in the bedroom when the fight initially broke
out in the hallway but that they came out of the bedroom when
“the defendants were fighting” and were no longer in the
bedroom when Victim locked himself in. At trial, defense
counsel attempted to undermine Witness’s credibility on this
point by confronting her with a prior statement she made to
police in which she appeared to be stating that the women were
in the room when the defendants broke in. On cross-
examination, defense counsel asked Witness whether she had
previously told police, “The girls were in the back bedroom and
ran out when the boys went in the bedroom” (the paraphrased
statement). Witness did not deny making the statement but
pointed out that while she had stated that the girls “ran out,” she
did not “specify where from.” She then clarified, “What I meant
by ‘running out,’ is running out of the apartment.”
¶27 In the affidavit supporting his rule 23B motion,
Dominguez’s counsel averred that she had listened to the audio
recording of Witness’s police statement and that Witness
actually stated, “They were in the back of the bedroom, and then
once the boys all got in the bedroom, the girls ran out and went
out probably to the car, I’m guessing” (the recorded statement).
In his rule 23B motion, Dominguez asserts that had counsel
confronted Witness with the recorded statement, the jury would
have been more likely to discount her testimony.
¶28 Dominguez argues that the statement that “the girls ran
out and went out probably to the car,” identifies two instances of
leaving such that had the jury been presented with the actual
recorded statement, it would have had no choice but to conclude
that the first instance—“the girls ran out”—described their
running out of the bedroom while the second instance—the girls
“went out”—described their leaving the apartment. Because the
20170618-CA 14 2019 UT App 116State v. Dominguez
paraphrased statement described only one instance of leaving—
the girls “ran out”—Dominguez maintains that the jury was
more likely to accept Witness’s explanation that she meant that
the girls “ran out” of the apartment than it would have been had
it been confronted with the recorded statement. He also asserts
that the phrase “in the back of the bedroom,” used in the
recording, undermines Witness’s explanation more than the
phrase “in the back bedroom,” as paraphrased by defense
counsel at trial, because being in the back of the bedroom as
opposed to simply being in the bedroom “supports more fully
the testimony that the women were stuck in the bedroom with
[Victim] and were afraid of him—they were in the back of the
bedroom to get as far away from [Victim] as they could.” Finally,
he asserts that the recorded statement, “once the boys all got in
the bedroom, the girls ran out,” is more supportive of the idea
that the girls were in the bedroom when the defendants broke in
than the paraphrase, “The girls were in the back bedroom and
ran out when the boys went in the bedroom.”
¶29 We agree with the State that the distinctions drawn by
Dominguez between the recorded statement and the
paraphrased statement are too subtle to have likely impacted the
outcome of the trial. The jury was required to rely on its memory
as to the precise wording of the statement 6 and was unlikely to
have recalled this language so vividly that it would have parsed
6. While Dominguez did not raise this argument, his
codefendants initially asserted in the appeals of their convictions
that trial counsel also erred in failing to seek the admission of the
recording into evidence so that the jury could review the
recording during deliberations. However, they ultimately
abandoned that claim, conceding that “the audio clip would not
have been allowed into the jury deliberation room because it was
testimonial evidence.” (Citing State v. Cruz, 2016 UT App 234,
¶¶ 36–41, 387 P.3d 618.)
20170618-CA 15 2019 UT App 116State v. Dominguez
the individual phrases in the way that appellate counsel has
done. And even if it had done so, the recorded statement is still
ambiguous, just as the paraphrased statement was. Neither
statement explicitly states whether the women “ran out” of the
bedroom or whether they “ran out” of the apartment. There is no
reason to believe that Witness would have responded any
differently if confronted with the recorded statement than she
did when confronted with the paraphrased statement. That is,
she still would have offered her explanation that she meant that
the women left the apartment when the defendants broke down
the door, not that they left the bedroom, and the jury would
have been left to determine which explanation it believed. We
are not convinced that the jury was likely to have found Witness
measurably less credible had it been presented with the recorded
statement rather than the paraphrased statement.
III. The Trial Court Did Not Err in Denying Dominguez’s Motion
for Mistrial, Because Officer’s Reference to Dominguez’s
Mug Shot Was Harmless.
¶30 Finally, Dominguez asserts that the trial court erred in
denying his motion for mistrial because he was unfairly
prejudiced by Officer’s reference to his mug shot. The State does
not contest Dominguez’s assertion that Officer’s statement was
improper but argues that it is not reversible error because “a
mistrial is not required where an improper statement is not
intentionally elicited, is made in passing, and is relatively
innocuous in light of all the testimony presented.” State v. Allen,
2005 UT 11, ¶ 40, 108 P.3d 730.
¶31 Here, Officer indicated that he had identified Dominguez
“through his mug shot that we have on file,” in response to the
prosecutor’s question, “[D]id you run Julio Dominguez’s history
and access his driver’s license photograph?” Dominguez asserts
that the prosecutor’s reference to running his “history” is
equivalent to the prosecutor asking about his criminal history
20170618-CA 16 2019 UT App 116State v. Dominguez
and that the prosecutor therefore “elicited” the improper
testimony. We disagree. The question about running
Dominguez’s history was explicitly linked to Officer accessing
his driver license photo as a means of identification. Thus, the
question is more properly interpreted as a reference to
Dominguez’s driving history than a reference to his criminal
history. Further, the single reference to the mug shot in the
course of a three-day trial was innocuous, the discussion
regarding Dominguez’s objection was held off the record, and
the prosecutor quickly moved on to different topics. See State v.
Butterfield, 2001 UT 59, ¶¶ 45, 47, 27 P.3d 1133 (upholding a
denial of a motion for mistrial based on an officer’s statement
that he had obtained a photograph of the defendant “that was
used in the photo array from the ‘Salt Lake County Jail’” because
the court considered the reference to be a “‘vague,’ ‘fleeting’
remark that was not elicited by the prosecutor”); see also
Allen, 2005 UT 11, ¶ 40; State v. Wach, 2001 UT 35, ¶ 46, 24 P.3d
948.
¶32 Further, even if we were to agree with Dominguez that
the reference to his mug shot was so serious as to warrant a
mistrial under normal circumstances, it ultimately did not
warrant a mistrial under the circumstances of this case, because
after Dominguez decided to testify, 7 the State was permitted to
impeach his testimony by asking him whether he had previously
been convicted of a third-degree felony and two second-degree
felonies. The fact that the jury was explicitly informed of
Dominguez’s criminal history obviated any likelihood that
Officer’s erroneous reference to Dominguez’s mug shot affected
the outcome of the trial.
7. There is nothing in the record indicating that Dominguez’s
decision to take the stand and open himself to being impeached
based upon his criminal history was somehow influenced by
Officer’s earlier reference to his mug shot.
20170618-CA 17 2019 UT App 116State v. Dominguez
CONCLUSION
¶33 We conclude that counsel did not perform deficiently by
not requesting a jury instruction explicitly linking the defense-
of-others instruction to the aggravated burglary charge. Further,
Dominguez has failed to show that remand under rule 23B of the
Utah Rules of Appellate Procedure has the potential to establish
facts that could support a determination that counsel was
ineffective for using the paraphrased statement rather than the
recorded statement to impeach Witness. Finally, because
Dominguez’s criminal record was admitted as impeachment
evidence, the trial court did not exceed its discretion in denying
his motion for mistrial based on Officer’s innocuous reference to
Dominguez’s mug shot. 8 Accordingly, we deny Dominguez’s
request for rule 23B remand and affirm his conviction.
8. On appeal, Dominguez also asked us to reverse on grounds of
cumulative error. But because we discern no error with respect
to the defense-of-others jury instruction or the trial court’s denial
of Dominguez’s motion for mistrial, Dominguez cannot establish
cumulative error. See State v. Jones, 2015 UT 19, ¶ 74, 345 P.3d
1195 (“If the claims are found on appeal to not constitute error,
or the errors are found to be so minor as to result in no harm, the
doctrine will not be applied.” (quotation simplified)).
20170618-CA 18 2019 UT App 116