2016 UT App 234
State v. Cruz
at trial to defend or explain it.’‛
Id. (quoting Crawford,
541 U.S. at
59 n.9). Here, Child was present at trial to defend or explain her
recorded statements.
¶27 In arguing that he was prevented from adequately cross-
examining Child, Cruz quotes at length from State v. Villareal,
889 P.2d 419 (Utah 1995). But that decision does not aid his case.
In Villareal, the prosecutor introduced the confession of a co-
perpetrator through a police officer. Id. at 423. The co-
perpetrator took the stand but was ‚wholly nonresponsive‛
when Villareal attempted to cross-examine him about the
charged conduct. Id. at 425. Our supreme court held, under pre-
Crawford case law, that Villareal’s Confrontation Clause rights
were violated but that the violation was harmless beyond a
reasonable doubt in light of other trial evidence. Id. at 423–26.
¶28 In the present case, Cruz’s attempts at cross-examination
were not stonewalled by a wholly unresponsive witness. On the
contrary, Cruz did not attempt to cross-examine Child about the
charged conduct. Instead, he conducted a very brief cross-
examination that did not include questions about the allegations
of abuse. Child testified on cross-examination only that a
babysitter tended to her and her sisters when Mother worked
and that Mother did not go over her testimony with her.
¶29 This issue is controlled by State v. Nelson,
725 P.2d 1353
(Utah 1986). In Nelson, as here, ‚the State fully opened the door
for the defense on cross-examination to question the child
concerning the substance‛ of her interview. Id. at 1357. ‚Yet on
cross-examination, the defense made no attempt to follow up on
the prosecution’s opening.‛ Id. Our supreme court concluded
that defense counsel ‚may have elected to forego cross-
examination regarding the incident, but that does not mean that
the opportunity was not available.‛ Id. ‚It is the opportunity to
cross-examine that is guaranteed by the state and federal
constitutions, not whether that opportunity is exercised. Under
the circumstances, we find no denial of the right of
confrontation.‛ Id.; accord State v. Pham,
2016 UT App 105, ¶ 11,
372 P.3d 734. The same is true here. In his briefing, Cruz
20140994-CA 11
2016 UT App 234
State v. Cruz
repeatedly refers to Child’s ‚uncross-examined videotaped
interviews.‛ But he chose not to cross-examine her about the
incidents. And as Nelson makes clear, one who chooses not to
cross-examine a witness cannot complain that he was denied his
right to cross-examine or confront the witness.
Id.
¶30 Cruz also contends that he was denied his right to cross-
examine Child because her ‚videotaped interviews were not
subjected to cross-examination until more than one year later.‛
Cruz repeatedly refers to the fact that he had no opportunity to
cross-examine Child in the approximately one year between her
CJC interviews and trial. But he does not assert or cite any legal
authority that would support a claim that the one-year delay
denied him a speedy trial or otherwise constituted error.
Accordingly he has not carried his burden of persuasion on
appeal. See Utah R. App. P. 24(a)(9); State v. Hawkins,
2016 UT
App 9, ¶ 60,
366 P.3d 884.
¶31 Cruz also contends that ‚although *Child+ ‘testified’ at
trial, it was impossible for his defense counsel to effectively
cross-examine her regarding, inter alia, her non-responsive head
movements.‛ Consequently, Cruz asserts he was denied ‚the
right to effective cross-examination on a matter central to guilt or
innocence.‛ But Cruz points to no ruling of the trial court that
prevented him from cross-examining Child on any relevant
question. Indeed, he never attempted to cross-examine her about
her head movements, her allegations of abuse, or any other
subject other than the two described above.5
¶32 Accordingly, Cruz has demonstrated no violation of his
right to confront or cross-examine Child.
5. As we discuss below, see infra ¶ 58, Child’s nonresponsive
head movements were irrelevant to Cruz’s guilt or innocence
because they pertained to allegations of abuse for which Cruz
was not convicted.
20140994-CA 12
2016 UT App 234
State v. Cruz
C. Jury’s Access to the CJC Interviews During Deliberations
1. Admissibility of the video recordings
¶33 Cruz contends that the trial court erred when it allowed
Child’s ‚videotaped statements to go into the jury deliberation
room.‛ At trial defense counsel objected that the jury should not
have the videos during deliberations ‚as a matter of due process
and fairness.‛ He argued that the videos were testimony, not
exhibits, and thus should not be made available during
deliberations. He argued further that ‚if I have a cross
examination of [Child], my cross examination doesn’t get to go
to the jury room.‛ The prosecutor argued that the video
recordings were exhibits, and ‚exhibits go to the jury.‛ The trial
court ruled that the jury could have the videos during
deliberations.
¶34 Cruz now argues that, ‚just as portions of transcripts of
testimony [are] not permitted to go to the jury room so as not to
over-emphasize the testimony of the witness,‛ recorded CJC
interviews ‚should also not be permitted in the jury room.‛
Although Cruz references ‚fairness‛ and the Confrontation
Clause throughout his argument, his analysis relies principally
on rule 17 of the Utah Rules of Criminal Procedure. ‚*T+he
interpretation of a rule of procedure is a question of law that we
review for correctness.‛ State v. Bosh,
2011 UT 60, ¶ 5,
266 P.3d
788 (citation and internal quotation marks omitted).
¶35 The current version of rule 17 permits the jury to take
most exhibits into the deliberations:
Upon retiring for deliberation, the jury may take
with them the instructions of the court and all
exhibits which have been received as evidence,
except exhibits that should not, in the opinion of
the court, be in the possession of the jury, such as
exhibits of unusual size, weapons or contraband.
20140994-CA 13
2016 UT App 234
State v. Cruz
Utah R. Crim. P. 17(l). Our supreme court has explained that
‚section (l) of rule 17 limits the material the jury may have with
them during deliberation to ‘the instructions of the court and all
exhibits which have been received as evidence.’‛ Allen v. Friel,
2008 UT 56, ¶ 32,
194 P.3d 903 (quoting Utah R. Crim. P. 17(l)).
The supreme court has also stated that this rule ‚indicates that
exhibits which are testimonial in nature should not be given to
the jury during its deliberations.‛ State v. Carter,
888 P.2d 629,
643 (Utah 1995), superseded by statute on other grounds as recognized
by Archuleta v. Galetka,
2011 UT 73, ¶ 70,
267 P.3d 232. The court
thus held in Carter that in a capital penalty phase ‚the transcript
of all [prior] testimony . . . is admissible in oral form only and
must not be introduced into evidence as an exhibit or given to
the jury to use during deliberation.‛
Id. (alteration in original)
(citation and internal quotation marks omitted).
¶36 The law has ‚always excluded depositions and written
testimony from being carried from the bar by the jury.‛ State v.
Solomon,
87 P.2d 807, 811 (Utah 1939).6 ‚A written instrument,
made an exhibit in the [case] but not consisting of testimony of a
witness in the case, may of course be taken to the jury room the
same as maps, diagrams, and other exhibits. But the testimony of
6. Cruz relies on an earlier version of the rule cited in State v.
Carter,
888 P.2d 629 (Utah 1995). That version stated, ‚Upon
retiring for deliberation, the jury may take with them the
instructions of the court and all exhibits and papers which have
been received as evidence, except depositions . . . .’‛ Id. at 643
(omission in original) (emphasis omitted) (quoting Utah R. Crim.
P. 17(k) (1995)). The advisory committee note to the current rule
explains why the reference to depositions was deleted: ‚The
committee recommends removing depositions from the
paragraph not in order to permit the jurors to have depositions
but to recognize that depositions are not evidence. Depositions
read into evidence will be treated as any other oral testimony.‛
Utah R. Crim. P. 17 advisory committee note.
20140994-CA 14
2016 UT App 234
State v. Cruz
a witness is in a different category.‛
Id. The court explained that
the rationale for the rule sought to deny written evidence an
‚undue advantage‛:
It may often happen that the testimony on one side
is oral from witnesses produced before the jury,
while the testimony for the other side on essential
matters is in the form of depositions or in the
transcript from testimony at a previous hearing. If
the hearing lasts for any length of time and the jury
takes the depositions or transcript to be read and
discussed while the oral evidence contra has in a
measure faded from the memory of the jurors, it is
obvious that the side sustained by written evidence
is given an undue advantage. The law does not
permit depositions or witnesses to go to the jury
room. Why should a witness be permitted to go
there in the form of written testimony?
Id. The supreme court reaffirmed this rule and rationale in State
v. Davis,
689 P.2d 5, 15 (Utah 1984), as we observed in Shoreline
Development Inc. v. Utah County,
835 P.2d 207, 210 n.6 (Utah Ct.
App. 1992). Cf. 2 Handbook of Federal Evidence § 403:2 (7th ed.
2016) (stating that federal courts are reluctant to send into the
jury room recorded testimony given at a trial, including
videotape recordings, tape recordings, and transcripts of
testimony); 2 McCormick on Evidence § 220 (7th ed. 2016) (stating
that writings and recordings that are testimonial in nature are
typically not taken in with the jury, because courts view them as
simply a different form of testimony that ‚should not be unduly
emphasized over oral testimony in the case‛).
¶37 Here, the State argues that the video recordings were
exhibits and therefore were properly allowed into the jury room;
Cruz argues that the video recordings are testimonial in nature
and thus should not have been allowed into the jury room. We
agree with Cruz.
20140994-CA 15
2016 UT App 234
State v. Cruz
¶38 Our courts have described a video recording of a child’s
police interview as ‚recorded testimony,‛ State v. Nguyen,
2012
UT 80, ¶ 12,
293 P.3d 236, and as ‚video testimony,‛ In re S.A.K.,
2003 UT App 87, ¶ 5,
67 P.3d 1037. A recording of a child’s
interview taken by police for the purpose of prosecuting crime,
which is then introduced at trial and subjected to live cross-
examination, constitutes, for purposes of this rule, testimony—
or, at the very least, falls within the category of ‚exhibits which
are testimonial in nature‛ and thus ‚should not be given to the
jury during its deliberations.‛ Carter, 888 P.2d at 643.7
¶39 The concerns expressed by the Solomon court 77 years ago
about ‚written testimony‛ apply with equal force to video
recorded testimony. Whether a statement is recorded on paper,
on magnetic tape, or on digital media, the same rule applies. A
video recording of this type poses the same danger of undue
emphasis as would the transcript of the witness’s live trial
testimony. Accordingly, the rationale for excluding written
records of oral testimony from the jury deliberations applies
with at least equal force to video records of oral testimony or its
equivalent. As the New Jersey Supreme Court noted, ‚replay of
a video recording is tantamount to having the witness testify a
second time.‛ State v. A.R.,
65 A.3d 818, 829 (N.J. 2013). ‚The
video recording is the functional equivalent of a live witness,
and can be particularly persuasive.‛
Id. (citation omitted). That
court concluded that ‚under no circumstances shall the jury
have unfettered access to audio- or video-recorded statements in
7. There can be little doubt that a child’s video-recorded
statement, given under questioning from a police officer in
anticipation of criminal prosecution, is classified as testimonial
for purposes of the federal Confrontation Clause. See State v.
Bentley,
739 N.W.2d 296, 299–302 (Iowa 2007) (collecting cases);
State v. Blue,
2006 ND 134, ¶¶ 8–16,
717 N.W.2d 558 (collecting
cases); Coronado v. State,
351 S.W.3d 315, 324 n.52 (Tex. Crim.
App. 2011) (collecting cases).
20140994-CA 16
2016 UT App 234
State v. Cruz
the jury room during deliberations. Replay in open court permits
the required record of the replay to be made.‛
Id.
¶40 We emphasize that this rule does not apply to all video
recordings; many video recordings shown in court are not
testimonial in nature and so would ordinarily be permitted in
the jury room unless they ‚should not, in the opinion of the
court, be in the possession of the jury.‛ Utah R. Crim. P. 17(l).
¶41 Accordingly, we hold that the trial court erred in sending
the video recordings of the CJC interviews into the jury room
during deliberations. But of course, not every trial error requires
reversal.
2. Prejudice
¶42 ‚Any error, defect, irregularity or variance which does
not affect the substantial rights of a party shall be disregarded.‛
Id. R. 30(a). Thus, errors that ‚are sufficiently inconsequential
that we conclude there is no reasonable likelihood that the error
affected the outcome of the proceedings‛ are harmless and do
not require reversal. State v. Verde,
770 P.2d 116, 120 (Utah 1989).
A ‚‘reasonable likelihood’‛ requires a ‚‘probability sufficient to
undermine confidence in the outcome.’‛ State v. Knight,
734 P.2d
913, 920 (Utah 1987) (quoting Strickland v. Washington,
466 U.S.
668, 694 (1984)). In this case, the relevant ‚outcome‛ is Cruz’s
two convictions, both of which arose from his November 9
conduct.
¶43 The jury requested interpreters during deliberations,
suggesting that they may have viewed the CJC video recordings.
But even so, we see no reasonable likelihood that allowing the
CJC video recordings into jury deliberations affected the
outcome of Cruz’s trial, for several reasons.
¶44 First, this case does not present the danger of over-
emphasis described in Solomon, where the party benefitting from
recorded testimony enjoys an undue advantage over the party
sustained by oral testimony. At trial, Cruz presented no
20140994-CA 17
2016 UT App 234
State v. Cruz
testimony directly contradicting Child’s account, nor did he
cross-examine her about her allegations of abuse. Rather, he
called an expert in child-interviewing techniques who opined
that Child’s ‚false beliefs‛ had been instilled by her mother.
Consequently, this was not a she-said/he-said case; it was a she-
said/but-she-was-coached case. Thus, both sides had an interest
in the jury’s scrutinizing Child’s interviews. Indeed, in closing
argument defense counsel stated, ‚You can watch the
video[s] . . . . You can go and watch them. This is not necessarily
a requirement, but I submit to you it should be.‛ We understand
that once a court has ruled counsel must make the best of the
situation. But as we read it, counsel’s statement goes beyond
damage control. And his tactical choice makes sense given the
defense strategy of claiming that Child was coached.
¶45 Second, the jury seems in fact not to have over-
emphasized the CJC interviews. Cruz was charged with two
counts of sodomy on a child and one count of aggravated
kidnapping based on his November 9 conduct and five other sex
crimes against Child based on earlier alleged conduct. The three
November 9 charges were partially corroborated by Mother’s
account of walking in on Cruz and Child. See infra ¶ 48. After
deliberating for 18 hours, the jury convicted Cruz of only the
three November 9 counts and either acquitted him or
deadlocked on the remaining charges. This mixed verdict
suggests that the jury scrupulously sifted the evidence without
undue emphasis on the CJC video recordings.
¶46 Finally, we agree with the State that the graphic nature of
Child’s description of the November 9 events guaranteed that
jurors would remember it—perhaps despite their best efforts—
with or without rewatching the CJC video recordings. Child
clearly described oral sodomy. In fact, she quoted Cruz as telling
her ‚not to bite it‛ but to suck it ‚like a popsicle.‛
¶47 Cruz responds with several arguments. He argues that
Child might have parroted words she heard or described
conduct she witnessed while sleeping in Mother’s bedroom,
where Mother and Cruz engaged in sexual conduct after the
20140994-CA 18
2016 UT App 234
State v. Cruz
children were—they believed—asleep. Cruz was free to, but did
not, cross-examine Child concerning this theory. He did argue it
in closing. But Cruz has not explained why a second look at the
CJC video recordings would make the difference between the
jury accepting or rejecting this theory.
¶48 Cruz also asserts that, absent medical evidence of abuse,
‚the State’s case clearly was not a ‘slam dunk.’‛ We agree with
the assumption of this argument—that, when ‚assessing an
error’s harmfulness, we look, in part, to ‘the overall strength of
the State’s case.’‛ State v. Benson,
2014 UT App 92, ¶ 30,
325 P.3d
855 (quoting State v. Hamilton,
827 P.2d 232, 240 (Utah 1992)). We
also agree that no medical evidence corroborated Child’s
account of events on November 9. But other evidence did:
Mother described opening her bedroom door to see Cruz lying
on the bed with his pants unzipped and ‚wide open,‛ and Child
lying next to him near his hips. Mother testified that she pulled
Child into the bathroom where Child, shaky and pale, told her
that Cruz ‚put his *penis+ in my mouth, but I’m afraid.‛ Cruz
denied that anything happened and questioned why Child
would say such a thing. But Child never changed her story.
Further, the doctor who examined Child testified at trial and
explained that presenting without ‚evidence of injuries . . . is not
terribly surprising.‛ Given these and other record facts, we see
no reasonable likelihood that the prosecution’s case was so
tenuous that not allowing the CJC video recordings into the jury
room would have resulted in a more favorable result for Cruz.
¶49 In sum, Cruz has not shown a reasonable likelihood that
the trial court’s error ‚affected the outcome of the proceedings.‛
See State v. Verde,
770 P.2d 116, 120 (Utah 1989).
II. The Head Gesture
¶50 Cruz contends that the trial court erred when it stated in
connection with one portion of the video recording, ‚I’ll indicate
for the record that the child moved her head up and down.‛
Cruz ‚concedes that the district court attempted to alleviate the
impact of its erroneous instruction.‛ But Cruz further contends
20140994-CA 19
2016 UT App 234
State v. Cruz
that the trial court’s comment was ‚so prejudicial and
devastating . . . as to vitiate the mitigating effect of the court’s
curative instruction.‛ (Citing State v. Harmon,
956 P.2d 262, 273
(Utah 1998).)
¶51 The State counters that ‚by affirmatively stating that he
did not object to making the record as the prosecutor proffered,
[Cruz] invited the trial court into the very error he now
complains of.‛ The State also argues that Cruz ‚affirmatively led
the trial court into believing that the court’s curative instruction
was sufficient to cure any problems with describing [Child’s+
response.‛
¶52 We conclude that Cruz cannot prevail because any
possible error was harmless.8 Whether the appellant asserts
preserved error or plain error—that is, whether the appellant
claims to have objected to the alleged error or claims that the
alleged error was so obvious that no objection was required—the
appellant must demonstrate prejudice or harm to prevail. See
State v. McNeil,
2016 UT 3, ¶ 25 n.3,
365 P.3d 699 (‚The prejudice
inquiry is sometimes referred to as a harmfulness inquiry.‛).
‚An error is harmful if, absent the error, there is a reasonable
likelihood of a more favorable outcome for the appellant, or
phrased differently, [if] our confidence in the verdict . . . is
undermined.‛ State v. Maestas,
2012 UT 46, ¶ 37,
299 P.3d 892
(alteration in original) (citation and internal quotation marks
omitted).
¶53 On appeal Cruz contends that the court erred by making
a record of Child’s nonverbal response and that the court’s
curative instruction was ineffective to cure the error. We
8. Our review of the record satisfies us that Cruz did preserve his
claim. Although it took two tries for Cruz to object to the court’s
record of Child’s nonverbal cues, Cruz did successfully object to
the court’s action.
20140994-CA 20
2016 UT App 234
State v. Cruz
conclude that the court’s statement resulted in no prejudice for
four reasons.
¶54 First, the prosecutor asked that ‚the record reflect‛
Child’s head motion. Trial counsel frequently ask that the
written record reflect a fact visible to those at trial but not
captured by the written record. For example, in State v. Simmons,
759 P.2d 1152 (Utah 1988), a child sexual abuse case, the
prosecutor requested, ‚Let the record reflect these are
anatomically correct dolls.‛ Id. at 1160; see also In re D.D.,
2016
UT App 148, ¶ 3,
377 P.3d 706 (per curiam) (‚*I+f I could just for
the record reflect that [Father] is here, he . . . showed up when
the Court did announce and came through the door.‛
(Alterations and omission in original)). Counsel make such
requests with an eye toward ensuring that the record on appeal
accurately reflects the nature of the evidence presented at trial.
Such housekeeping requests are directed to the appellate court,
not the jury.
¶55 Second, the prosecution’s request conveyed no
information to the jury that it did not already possess. The
prosecutor requested that ‚the record reflect that when he asks
the question ‘every time,’ the nonverbal answer in the video is a
nod.‛ But the jury could observe for itself that when the
detective asked a particular question, Child responded with a
nod. Even Cruz does not contend that the verbal description
mischaracterized Child’s head motion. We see no danger that
verbalizing what the jury had just seen posed any risk of
skewing the jury’s verdict.
¶56 Third, the court gave a curative instruction. Curative
instructions ‚are a settled and necessary feature of our judicial
process and one of the most important tools by which a court
may remedy errors at trial.‛ State v. Harmon,
956 P.2d 262, 271
(Utah 1998). ‚In the absence of the appearance of something
persuasive to the contrary, we assume that the jurors were
conscientious in performing . . . their duty, and that they
followed the instructions of the court.‛ State v. Curtis,
2013 UT
App 287, ¶ 25,
317 P.3d 968 (omission in original) (citation and
20140994-CA 21
2016 UT App 234
State v. Cruz
internal quotation marks omitted). Further, ‚curative
instructions are ordinarily presumed on appeal to be effective.‛
Id. (citation and internal quotation marks omitted).
¶57 Cruz argues that the trial court’s curative instruction ‚was
neither prompt nor effective.‛ However, defense counsel did not
challenge the timing or substance of the curative instruction at
trial. Accordingly, the timing of the instruction does not
persuade us to depart from the usual presumption that the
jurors ‚were conscientious in performing . . . their duty, and that
they followed the instructions of the court.‛ See
id.
¶58 Fourth, the jury acquitted Cruz of the charges in
connection to which Child nodded her head. Cruz was charged
with three counts relating to the November 9 events and five
counts relating to conduct occurring before that date. Child’s
nonverbal response—the subject of Cruz’s objection and the
subsequent curative instruction—pertained to descriptions of the
latter charges. The jury did not return a blanket conviction on all
charges; they convicted Cruz of only those charges unrelated to
Child’s nonverbal responses. This fact demonstrates that the jury
‚was not improperly influenced‛ by the trial court’s alleged
error and that the jury ‚took its responsibilities seriously.‛ See
State v. Toki,
2011 UT App 293, ¶ 34,
263 P.3d 481.
¶59 For the foregoing reasons, nothing about the trial court’s
acceding to the prosecutor’s request to make a written record of
Child’s nodding undermines our confidence in the outcome of
the trial. See State v. McNeil,
2016 UT 3, ¶ 27,
365 P.3d 699.
III. Allen Charge
¶60 Cruz contends that the trial court denied him ‚a fair trial
under the Sixth Amendment by giving a premature and coercive
Allen charge.‛9 Cruz does not challenge the wording of the
9. Verdict-urging instructions are often referred to as ‚Allen
charges.‛ State v. Lactod,
761 P.2d 23, 29 (Utah Ct. App. 1988)
(continued<)
20140994-CA 22
2016 UT App 234
State v. Cruz
instruction given. Rather, he asserts that the court erred in two
ways: first, by giving the instruction ‚before the jury indicated it
was actually deadlocked‛; and second, in ‚essentially *telling+
the jury it expected a response in a relatively short order.‛
Acknowledging that this claim of error is unpreserved, Cruz
alleges plain error and ineffective assistance of counsel.
¶61 The State responds that Cruz cannot show prejudice
under either doctrine. ‚Plain error claims and ineffective
assistance of counsel claims share a ‘common standard’ of
prejudice.‛ State v. Redcap,
2014 UT App 10, ¶ 50,
318 P.3d 1202
(quoting State v. Litherland,
2000 UT 76, ¶ 31 n.14,
12 P.3d 92;
State v. Verde,
770 P.2d 116, 124 n.15 (Utah 1989)).
¶62 To succeed on a claim of ineffective assistance of counsel,
a defendant must show both ‚that counsel’s performance was
deficient‛ and ‚that the deficient performance prejudiced the
defense.‛ Strickland v. Washington,
466 U.S. 668, 687 (1984); accord
State v. Nelson,
2015 UT 62, ¶ 12,
355 P.3d 1031. Proof of
prejudice requires a showing ‚that counsel’s errors were so
serious as to deprive the defendant of a fair trial.‛ Strickland,
466
U.S. at 687. ‚Failure to raise futile objections does not constitute
ineffective assistance of counsel.‛ State v. Kelley,
2000 UT 41,
¶ 26,
1 P.3d 546.
¶63 ‚In general, to establish the existence of plain error and to
obtain appellate relief from an alleged error that was not
objected to, the appellant must show the following: (i) [a]n error
(164 U.S. 492 (1896)). We have
upheld ‚the non-coercive use of Allen charges because we
believe such charges to be a reasonable and proper exercise of
the court’s power to guide the jury to a fair and impartial
verdict.‛ Id. at 30. There is ‚no prescribed ritual of words
indicating whether the language of an Allen charge is coercive.‛
Id. (citation and internal quotation marks omitted).
20140994-CA 23
2016 UT App 234
State v. Cruz
exists; (ii) the error should have been obvious to the trial court;
and (iii) the error is harmful . . . .‛ State v. Dunn,
850 P.2d 1201,
1208 (Utah 1993). An error is harmful if, due to the error, ‚our
confidence in the verdict is undermined.‛
Id. at 1208–09. ‚If any
one of these requirements is not met, plain error is not
established.‛ Id. at 1209.
¶64 After 18 hours of jury deliberations, Cruz and the State
proposed a modified Allen instruction. Cruz stated that the
instruction did not ‚urge the verdict‛ and the State agreed.
Before issuing the instruction, the court emphasized to the jury
that it ‚wanted to give [them] an instruction and see where
[they] were as far as continued deliberations‛ and that the jury
should not ‚take this in any way as an attempt to cause [them] to
hurry [their] process‛ if they were ‚progressing towards a
resolution.‛ The court gave a modified Allen instruction and
posed two questions: ‚Question one, ‘Have you reached a
unanimous verdict on any of the Counts I through VIII?’
Question two, ‘Is there reasonable likelihood that continued
deliberation will result in a unanimous verdict on any counts
that you have not yet as a group been able to unanimously agree
upon?’‛ The court then asked the jury to ‚talk about these
questions, [and] get back with me in a relatively short period of
time to let us know where you are in this matter.‛
A. Timing of the Instruction
¶65 First, Cruz faults the trial court for giving the instruction
‚before the jury indicated it was actually deadlocked.‛ The court
‚merely observed that deliberation had gone on quite long‛—in
fact, 18 hours. This challenge rests on the premise that giving an
Allen charge before the jury indicates that it is deadlocked
constitutes error. But Cruz cites no authority for this premise,
nor does it appear to be the rule. See United States v. Jones, 608
F. App’x 822, 827 (11th Cir. 2015) (‚Our precedent does not
require . . . an express indication of deadlock before the district
court gives an Allen charge.‛ (omission in original) (citation and
internal quotation marks omitted)); Government of Canal Zone v.
20140994-CA 24
2016 UT App 234
State v. Cruz
Fears,
528 F.2d 641, 644 (5th Cir. 1976) (‚There is no requirement
that the jury be deadlocked before [an Allen+ charge is given.‛);
Loving v. State,
947 S.W.2d 615, 619 (Tex. App. 1997) (‚The courts
of several states have held that the decision to give an Allen
charge does not require a finding that the jury is deadlocked.‛).
Indeed, this court has stated that ‚trial courts will be in a ‘safe
harbor’ in terms of appellate review if they give the ABA
instruction before an impasse occurs.‛ State v. Harry,
2008 UT App
224, ¶ 25,
189 P.3d 98 (emphasis added).
¶66 Cruz has not demonstrated that the court erred, much less
obviously erred, by instructing the jury when it did. Nor has he
demonstrated that an objection by defense counsel would have
been anything but futile. Accordingly, this claim fails.
B. Requesting a Response ‚in a relatively short period‛
¶67 Cruz next contends that the trial court erred when it told
the jury, according to Cruz, that it ‚wanted a decision by the jury
‘in a relatively short period.’‛ This request, he argues, ‚was
undoubtedly coercive.‛
¶68 This characterization of the court’s statement implies that
it urged the jury to return a verdict in a relatively short period.
In fact, the court emphasized that if the jury was ‚progressing
towards a resolution,‛ it should not view the instruction ‚in any
way as an attempt to cause you to hurry your process.‛ The
court then asked the jury to consider two questions: (1) whether
it had reached a unanimous verdict on any of the charges, and
(2) whether continued deliberation would result in a unanimous
verdict on any counts on which the jury had not yet been able to
unanimously agree. The court added, ‚I’ll ask you to talk about
these questions‛ and ‚get back to me in a relatively short period
of time to let us know where you are in this matter.‛ In other
words, the court did not ask the jury to return a verdict in a
relatively short time. Rather, 18 hours into deliberations, the
court asked the jury for a status report.
20140994-CA 25
2016 UT App 234
State v. Cruz
¶69 Cruz argues that this request ‚was undoubtedly
coercive.‛ As evidence of coercion, Cruz points to the fact that 30
minutes after receiving the court’s request, the jury ‛acquitted
Cruz on one count and deadlocked on others.‛ We disagree.
These few facts do not demonstrate that the court’s request for a
status report in a relatively short period conveyed ‚any
suggestion that the jurors should surrender their individual
views of conscience.‛ See State v. Thomas,
777 P.2d 445, 448 (Utah
1989). This is especially so where the court explicitly told the jury
not to consider the request ‚as an attempt to cause you to hurry
your process.‛
¶70 Cruz has not demonstrated that the court erred in
requesting that the jury return an answer to the court’s questions
within a short time, nor has he demonstrated that this request
was coercive in any way. Therefore, his claims of plain error and
ineffective assistance of counsel fail.
IV. Sufficiency of the Evidence
¶71 Cruz contends that the evidence at trial was insufficient to
convict him of sodomy on a child. Cruz argues that Mother’s
testimony lacked credibility, that Child could have reported sex
acts she observed between Mother and Cruz, that Child’s
physical examination was inconclusive, and that a defense
expert testified that Mother might have planted false memories
in Child. He also points to the fact that the jury deadlocked on
four counts and acquitted him on one. Acknowledging that this
claim is unpreserved, Cruz alleges plain error and ineffective
assistance of counsel.
¶72 Even where a sufficiency claim is preserved, the
applicable standard of review is highly deferential. In assessing a
claim of insufficiency of the evidence, ‚we review the evidence
and all inferences which may reasonably be drawn from it in the
light most favorable to the verdict of the jury.‛ State v. Maestas,
2012 UT 46, ¶ 302,
299 P.3d 892 (citation and internal quotation
marks omitted). We reverse ‚only when the evidence, so viewed,
is sufficiently inconclusive or inherently improbable that
20140994-CA 26
2016 UT App 234
State v. Cruz
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime of which he or she was
convicted.‛
Id. (citation and internal quotation marks omitted).
Also, ‚in reviewing the sufficiency of the evidence, we refuse to
re-evaluate the credibility of witnesses or second-guess the jury’s
conclusion.‛ State v. Fedorowicz,
2002 UT 67, ¶ 40,
52 P.3d 1194
(citation and internal quotation marks omitted).
¶73 Cruz’s sufficiency claim founders under this deferential
standard of review. Cruz was convicted on two counts of
sodomy on a child. A person commits sodomy on a child if the
person ‚engages in any sexual act upon or with a child who is
under the age of 14, involving the genitals or anus of the actor or
the child and the mouth or anus of either person, regardless of
the sex of either participant.‛
Utah Code Ann. § 76-5-403.1
(LexisNexis Supp. 2016).
¶74 Sex crimes are defined with great specificity and require
commensurate specificity of proof. State v. Pullman,
2013 UT App
168, ¶ 14,
306 P.3d 827. State v. Taylor,
2005 UT 40,
116 P.3d 360,
illustrates testimony sufficient to support a conviction for
sodomy on a child.
Id. ¶¶ 2–6. Like the child in the present case,
the victim in Taylor was six years old on the date of the offense.
Id. ¶ 2. ‚She explained that [the defendant] offered her ‘half a
dollar’ to ‘suck on his private,’ which she described as tasting
like urine.‛ Id. ¶ 3. The State also introduced a note the child had
written to her mother that read, with corrected spelling, ‚Bryan
told me to suck on his private and I did it.‛ Id. When asked to
pinpoint the dates and times of the acts, her answers were
imprecise. Id. ¶ 4.
¶75 As in Taylor, the evidence here was sufficient to support
Cruz’s convictions for sodomy upon a child. During the first CJC
interview, Child stated that Cruz ‚put his hand on the door‛ and
‚didn’t let me out.‛ Child said, ‚I didn’t want to do it, but he
made me do it. He made me put my mouth on his [tito].‛ She
also said that Cruz ‚put his tito in my mouth.‛ In the second CJC
interview, Child explained that Cruz ‚put me up on the
bed . . . on my knees‛ while his pants were ‚unzipped.‛ Child
20140994-CA 27
2016 UT App 234
State v. Cruz
told police that Cruz ‚took his tito out,‛ told Child ‚not to tell
anybody,‛ and ‚not to bite his tito.‛ Child said Cruz told her to
suck his penis ‚like a popsicle.‛ She reiterated that Cruz ‚put his
tito in *her+ mouth‛ and then her ‚mom walked in the door and
she saw.‛ Mother testified that she walked into the family
bedroom and saw Cruz ‚laying down‛ on the bed, with his
pants ‚wide open,‛ ‚unbuttoned, and the zipper was down.‛
Mother testified that she saw Child on the bed next to Cruz, near
his ‚hip area.‛
¶76 Child thus described the crimes in detail, and Mother
corroborated her account. Although Cruz points to evidence that
might have caused the jury to question Child’s account, we
‚may not reassess the credibility or reweigh the evidence, but
must resolve conflicts in the evidence in favor of the jury
verdict.‛ State v. Workman,
852 P.2d 981, 984 (Utah 1993); see also
State v. Cardona-Gueton,
2012 UT App 366, ¶ 11,
291 P.3d 847
(‚*I+t is the exclusive province of the jury to weigh the competing
theories of the case, in light of the evidence presented and the
reasonable inferences drawn therefrom, and to conclude which
one they believe.‛). Based on the evidence presented at trial, we
cannot conclude that ‚the evidence is sufficiently inconclusive or
inherently improbable such that reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime for which he . . . was convicted.‛ See State v. Holgate,
2000
UT 74, ¶ 18,
10 P.3d 346 (citation and internal quotation marks
omitted). We thus reject Cruz’s sufficiency claim.
V. Cumulative Error
¶77 Cruz argues that ‚cumulative error warrants reversal of
Cruz’s convictions and a new trial.‛
¶78 Under the doctrine of cumulative error or cumulative
prejudice, ‚we will reverse only if the cumulative effect of the
several errors undermines our confidence . . . that a fair trial was
had.‛ State v. Dunn,
850 P.2d 1201, 1229 (Utah 1993) (omission in
original) (citation and internal quotation marks omitted); see also
State v. Campos,
2013 UT App 213, ¶ 61,
309 P.3d 1160 (referring
20140994-CA 28
2016 UT App 234
State v. Cruz
to ‚cumulative prejudice‛). By its nature, this doctrine has no
application where only one error occurred. See State v. Wach,
2001 UT 35, ¶ 37 n.4,
24 P.3d 948 (stating that ‚because this case
involves only one erroneous for-cause ruling, *appellant’s+
cumulative error argument fails‛). Here, we have concluded that
only one error occurred.10 Accordingly, the cumulative error
doctrine has no application in this case.
CONCLUSION
¶79 For the foregoing reasons, the judgment of the trial court
is affirmed.
10. In addition, with respect to Cruz’s claim based on Child’s
head gesture, we concluded that ‚any possible error was
harmless.‛ By this we do not mean to imply that error did occur
or might have occurred. Furthermore, we do not believe the
court’s statement had any effect on the verdict.
20140994-CA 29
2016 UT App 234