State v. Ortiz , 300 P.3d 786 ( 2013 )


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    2013 UT App 100
    _________________________________________________________
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Plaintiff and Appellee,
    v.
    DANIEL MARTINEZ ORTIZ,
    Defendant and Appellant.
    Memorandum Decision
    No. 20120198‐CA
    Filed April 25, 2013
    Second District, Ogden Department
    The Honorable W. Brent West
    No. 101900863
    Samuel P. Newton, Attorney for Appellant
    John E. Swallow and Michelle M. Young, Attorneys
    for Appellee
    JUDGE JAMES Z. DAVIS authored this Memorandum Decision,
    in which JUDGES CAROLYN B. MCHUGH and STEPHEN L. ROTH
    concurred.
    DAVIS, Judge:
    ¶1      Daniel Martinez Ortiz appeals his conviction for aggravated
    robbery, a first degree felony, see Utah Code Ann. § 76‐6‐302
    (LexisNexis 2012), on the ground that he was unfairly prejudiced
    by the trial court’s denial of his motion for permission to cover his
    facial tattoos at trial.1 We affirm.
    1. We are aware of no rule or statute requiring a defendant to
    obtain permission to cover up tattoos, although there are measures
    available to aid in identification that might justify requiring a
    defendant to display his tattoos where the tattoos are relevant, see
    (continued...)
    State v. Ortiz
    ¶2     Ortiz asserts that the tattoos were inadmissible under rules
    401, 402, and 403 of the Utah Rules of Evidence because they were
    irrelevant and unfairly prejudicial. See generally Utah R. Evid. 401,
    402, 403. Ortiz’s argument rests on the assumption that the tattoos
    constituted evidence and that their admissibility was therefore
    governed by the Utah Rules of Evidence. However, as the State
    points out, Ortiz’s tattoos were not admitted or used as evidence
    in this case, and their mere visibility as part of Ortiz’s general
    appearance was not subject to the evidentiary limitations of rules
    401, 402, and 403.
    ¶3      Ortiz cites a number of cases from other jurisdictions
    analyzing the admissibility of tattoo evidence under evidentiary
    rules. However, in each of those cases, the defendants’ tattoos were
    actually used as evidence and referenced at trial. See United States
    v. Smith, 348 F. App’x 636, 638–39 (2d Cir. 2009) (reviewing the
    admissibility of a photograph of the defendant’s tattoo depicting a
    skeleton firing a gun and the words “D’EVILS WITHIN”); United
    States v. Newsom, 
    452 F.3d 593
    , 559–604 (6th Cir. 2006) (considering
    prejudice resulting from the prosecution’s questioning witnesses
    about the defendant’s tattoos depicting firearms and gang‐related
    symbols); United States v. Thomas, 
    321 F.3d 627
    , 630–33 (7th Cir.
    2003) (reviewing the admissibility of a photograph of the
    defendant’s tattoo depicting two revolvers); United States v. Irvin,
    
    87 F.3d 860
    , 862, 865–66 (7th Cir. 1996) (considering the prejudicial
    impact of testimony describing a tattoo and its connection to a
    motorcycle gang); Boliek v. Delo, 
    912 F. Supp. 1199
    , 1212–13 (W.D.
    Mo. 1995) (reviewing the admissibility of testimony that the
    defendant had a tattoo depicting a smoking double‐barreled
    shotgun and the words “Death Dealer”), rev’d on other grounds sub
    1. (...continued)
    Utah R. Crim. P. 16(h) (listing activities the accused may be
    required to engage in for identification purposes, such as “cut[ting]
    hair or allow[ing] hair to grow to approximate appearance at the
    time of the alleged offense”).
    20120198‐CA                      2                
    2013 UT App 100
    State v. Ortiz
    nom, Boliek v. Bowersox, 
    96 F.3d 1070
     (8th Cir. 1996); Belmar v. State,
    
    621 S.E.2d 441
    , 444–46 (Ga. 2005) (reviewing the admissibility of a
    photograph of a tattoo that read “12 gauge” where the alleged
    crime was committed with a 12‐gauge shotgun); Brooks v. State, 
    903 So. 2d 691
    , 699–700 (Miss. 2005) (reviewing the admissibility of
    evidence connecting the defendant’s tattoo to gang activity); State
    v. Huff, 
    763 N.E.2d 695
    , 703 (Ohio Ct. App. 2001) (evaluating
    prejudice where on “cross‐examination, the state had [the
    defendant] display his tattoos to the jury and asked him what the
    tattoos meant and why he wore the tattoos” and suggested to the
    jury that the tattoos were gang‐related).
    ¶4     Here, neither the State nor any of the witnesses referred to
    Ortiz’s tattoos or their meaning, and no other evidence drew the
    tattoos to the attention of the jury. The tattoos were merely visible
    on Ortiz’s face and served no apparent evidentiary purpose.2
    Because the tattoos did not relate to any alleged fact at issue, they
    2. Although the State asserts that the tattoos may have aided the
    witnesses in identifying Ortiz, none of the witnesses cited the
    tattoos as the basis of their identification or otherwise referred to
    the tattoos. Ultimately, it is difficult to see how the trial court’s
    ruling prejudiced Ortiz. We disagree with Ortiz’s assertion that
    tattoos carry the same indicia of guilt as prison garb or handcuffs.
    See generally Estelle v. Williams, 
    425 U.S. 501
    , 504 (1976); State v.
    Mitchell, 
    824 P.2d 469
    , 473 (Utah Ct. App. 1991). While tattoos
    might carry a negative connotation for some, they are not
    exclusively associated with prisoners or criminals the way prison
    clothing and handcuffs are. Unlike prison garb, tattoos are
    voluntarily donned by the defendant and, once created, are part of
    his regular appearance. Furthermore, in this case, the jurors were
    specifically asked whether the facial tattoos would affect their
    ability to be fair and impartial and none of the jurors indicated that
    they would. If anything, the defense used Ortiz’s tattoos to its
    advantage by suggesting that the witnesses’ failure to mention his
    tattoos undermined the credibility of their identifications.
    20120198‐CA                       3                 
    2013 UT App 100
    State v. Ortiz
    did not constitute evidence and were therefore not subject to the
    rules of evidence. See generally Black’s Law Dictionary 635 (9th ed.
    2009) (defining “evidence” as “[s]omething (including testimony,
    documents and tangible objects) that tends to prove or disprove the
    existence of an alleged fact”); 31A C.J.S. Evidence § 2, at 18–19 (2008)
    (“Evidence is the demonstration of a fact; it signifies that which
    demonstrates, makes clear, or ascertains the truth of the very fact
    or point at issue, either on the one side or on the other. In legal
    usage, the term ‘evidence’ includes all the means by which any
    alleged matter of fact, the truth of which is submitted to
    investigation, is established or disproved.” (footnotes omitted)).
    Accordingly, we reject Ortiz’s argument that the tattoos constituted
    inadmissible evidence and that he therefore should have been
    permitted to cover them, and we affirm Ortiz’s conviction.
    20120198‐CA                        4                
    2013 UT App 100