State v. Ruiz , 272 P.3d 185 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20100254‐CA
)
v. ) FILED
) (February 16, 2012)
Manuel Ruiz, )
) 2012 UT App 42Defendant and Appellant. )
‐‐‐‐‐
Third District, Salt Lake Department, 091901992
The Honorable William W. Barrett
Attorneys: Herschel Bullen, Salt Lake City, for Appellant
Mark L. Shurtleff and Christine F. Soltis, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges Voros, Orme, and Davis.
ORME, Judge:
¶1 Defendant appeals his conviction and sentencing on two counts of aggravated
sexual assault1 on the ground that the evidence at trial was inherently improbable. He
also argues that he is entitled to be resentenced under the statutes in effect at the time of
1
Defendant was convicted of five charges, but he only appeals his convictions for
aggravated sexual assault involving rape or forcible sodomy.
sentencing, and with this contention the State agrees.2 We decline to disturb the verdict
but remand for resentencing.
¶2 Both sides agree that sexual intercourse and sodomy occurred between
Defendant and the victim in an upstairs bedroom with minor children present, but the
parties disagree over whether the victim consented to the acts. Medical examinations of
the victim following the incident indicated that she appeared to be in pain, with
tenderness “on the right side of her head, just above her ear” to the base of her neck and
extending down her back on her right side. Additionally, she “had tenderness on her
upper arm, right forearm, her right outer leg, left knee, lower back and the right
scapula.” A nurse observed a small laceration on the left inner surface of her labia, as
well as a small circular red spot near her anus. According to the nurse who examined
the victim soon after the incident, such injuries, while not conclusive, are consistent
with rape and forcible sodomy.
¶3 Primarily because of inconsistencies and confusing statements in the victim’s
testimony, Defendant claims both that the trial court erred in denying his motion for a
directed verdict and that there is insufficient evidence to support the verdict. His
primary contention is that the evidence presented was inherently improbable and
therefore insufficient as a matter of law.
In criminal cases, our review of a district court’s ruling on a
motion for directed verdict and of sufficiency of the evidence
to support a jury verdict involves basically the same
analysis. As to both issues, we review the evidence and all
inferences that may reasonably be drawn from it to ensure
that there was some basis upon which a reasonable jury
could reach a verdict of guilt beyond a reasonable doubt.
2
The State concedes that Defendant is entitled to have his sentences vacated and
to be resentenced in accordance with the statutes in effect at the time of his sentencing.
The State’s concession is consistent with settled Utah law. See State v. Kenison, 2000 UT
App 322, ¶ 8, 14 P.3d 129 (holding that a defendant is entitled to a lesser penalty
afforded by a statute amended between the time of the offense and the time of
sentencing).
20100254‐CA 2
State v. Featherhat, 2011 UT App 154, ¶ 36, 257 P.3d 445 (citations and internal quotation
marks omitted). We will not disturb a jury’s verdict on a theory of “inherent
improbability” unless there are “(1) . . . material inconsistences in the testimony and
(2) . . . no other circumstantial or direct evidence of the defendant’s guilt.” State v.
Robbins, 2009 UT 23, ¶ 19, 210 P.3d 288. While “the definition of inherently improbable
must include circumstances where a witness’s testimony is incredibly dubious and, as
such, apparently false,” id. ¶ 18, “[t]he existence of any additional evidence supporting
the verdict prevents the judge from reconsidering the witness’s credibility,” id. ¶ 19.
“We stress . . . that the court may choose to exercise its discretion to disregard
inconsistent witness testimony only when the court is convinced that the credibility of
the witness is so weak that no reasonable jury could find the defendant guilty beyond a
reasonable doubt.” Id. ¶ 18.
¶4 This is simply not such a case. The jury may well have concluded that the
inconsistencies in the victim’s testimony were not a product of fabrication but rather of
her language limitations and cognitive impairment. Additionally, the victim exhibited
symptoms of memory loss consistent with the blackout she claimed to have suffered
during the attack. We defer to the jury’s credibility assessments. See generally State v.
Calliham, 2002 UT 86, ¶ 23, 55 P.3d 573 (stating that the appellate court defers “to the
trial court based on the presumption that the trial judge [or jury], having personally
observed the quality of the evidence, the tenor of the proceedings, and the demeanor of
the parties, is in a better position to perceive the subtleties at issue than we can looking
only at the cold record”). The physical evidence tended to support the victim’s account,
and throughout her preliminary hearing and trial testimony, she never wavered in her
insistence that the vaginal and anal intercourse occurred without her consent. All
things considered, her testimony was not inherently improbable. Indeed, the scenario
that Defendant proposes—that the victim engaged in consensual sexual acts during the
course of a burglary and acts of domestic violence3—is much less believable than a
scenario in which the sexual encounters were nonconsensual.
¶5 Accordingly, we affirm Defendant’s convictions of aggravated sexual assault and
forcible sodomy. We vacate the sentences on those counts and remand for resentencing
3
The convictions that Defendant does not appeal, see supra note 1, are one
conviction of burglary and two convictions of domestic violence in the presence of a
child.
20100254‐CA 3
in accordance with the statutes in effect at the time of Defendant’s sentencing.4 See Utah
Code Ann. § 76‐5‐402(3)(a) (Supp. 2011); 5 id. § 76‐5‐403(4)(a) (2008).
____________________________________
Gregory K. Orme, Judge
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¶6 WE CONCUR:
____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge
____________________________________
James Z. Davis, Judge
4
Defendant was sentenced under Utah Code section 76‐5‐405(1)(a), which, at the
time of his offenses, defined “aggravated sexual assault” to include rape or forcible
sodomy that results in “bodily injury.” Utah Code Ann. § 76‐5‐405(1)(a) (2008). In May
2009, before Defendant was sentenced, the statute was amended to replace “bodily
injury” with “serious bodily injury.” Id. § 76‐5‐405(1)(b)(i) (Supp. 2011). See supra note
2.
5
This section has been further amended subsequent to the time of sentencing, but
no material changes were made. We therefore cite to the most current version of the
statute as a convenience to the reader.
20100254‐CA 4