State v. Jimenez , 299 P.3d 1158 ( 2013 )

2013 UT App 76_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
NELSON JIMENEZ,
Defendant and Appellant.
Per Curiam Decision
No. 20100957‐CA
Filed March 28, 2013
Third District, West Jordan Department
The Honorable Terry L. Christiansen
No. 091403058
Ronald Fujino, Attorney for Appellant
John E. Swallow and Marian Decker, Attorneys for Appellee
Before JUDGES ORME, DAVIS, and MCHUGH.
PER CURIAM:
¶1 Nelson Jimenez appeals his convictions of various first
degree felony charges involving sexual abuse of a child. We affirm.
¶2 Jimenez asserts that he received ineffective assistance of
counsel at trial because trial counsel failed to obtain forensic
examinations of the victims, failed to move to sever the charges
based on the individual victims, and failed to object to prior bad
acts testimony from a witness. To establish a claim of ineffective
assistance of counsel, a defendant must show that “counsel’s
performance was deficient” and that “the deficient performance
State v. Jimenez
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984).
¶3 Jimenez first argues that trial counsel was deficient for
failing to obtain forensic examinations of the victims to produce
exculpatory evidence. Jimenez cannot establish that counsel
performed ineffectively in this regard because he has not shown
that such examinations would produce any relevant evidence given
the time the abuse occurred. Relevant evidence is that which “has
any tendency to make a fact more or less probable than it would be
without the evidence.” Utah R. Evid. 401(a). Only relevant evidence
is admissible. Id. R. 402.
¶4 Testimony established that the abuse of the victims had
ended at least two years before the disclosure of the abuse to
authorities. The abuse of the eldest victim ended in roughly 1996.
The abuse of the other two victims ended sometime in 2007. The
victims reported the abuse in November 2009. Jimenez has not
shown that there is any reasonable possibility that a physical
examination of the victims years after the abuse ended would
produce any relevant evidence. Accordingly, he cannot show that
counsel was ineffective in not pursuing such examinations.
¶5 Jimenez next argues that counsel should have moved to
sever the counts and obtain separate trials for each victim. Multiple
charges may be joined in the same information if the charges are
“based on the same conduct or are otherwise connected in their
commission,” or if they are “alleged to have been part of a common
scheme or plan.” Utah Code Ann. § 77‐8a‐1(1) (LexisNexis 2012).
To establish ineffective assistance for failing to seek severance, a
defendant “must demonstrate both that the motion should have
been granted and ‘a reasonable probability’ that, but for counsel’s
deficient performance, the outcome of the proceeding would have
been different.” State v. Hallet, 796 P.2d 701, 706 (Utah Ct. App.
1990) (citation omitted).
20100957‐CA 2 2013 UT App 76State v. Jimenez
¶6 Although Jimenez argues that the charges should not have
been joined because the crimes were distinct in the details, we are
not persuaded. It appears that the charges were properly joined as
“part of a common scheme or plan.” Utah Code Ann. § 77‐8a‐1(1).
A common scheme or plan applies “when the crimes involve a
similar fact pattern and proximity in time.” State v. Balfour, 2008 UT
App 410, ¶ 20, 198 P.3d 471. “To be classified as a common plan or
scheme it is not necessary for the crimes to have been perpetrated
in an absolutely identical manner, so long as the court perceives a
visual connection between the [multiple] crimes.” Id.¶7 Here, there is a clear connection between the crimes. The
victims were siblings, Jimenez had easy access, he began abusing
each of them as preteens, the abuse extended over a long period of
time, and the most prevalent type of molestation had a common
fact pattern with each of the victims. Although details of the abuse
each victim experienced varied some, the differences do not
overcome the commonalities in a prolonged pattern of behavior.
Jimenez’s abuse of three siblings over more than a decade can be
considered a common scheme or plan under section 77‐8a‐1(1)(b).
¶8 However, even when charges are properly joined they may
be severed if trying them together would prejudice the defendant.
See Utah Code Ann. § 77‐8a‐1(4)(a). To analyze prejudice, the court
must determine “whether evidence of the other crime[s] would
have been admissible in a separate trial.” Balfour, 2008 UT App 410,
¶ 21. Typically, evidence of other crimes comes under the rubric of
rule 404(b) of the Utah Rules of Evidence. Other crimes evidence is
admissible for specific purposes, including showing intent and a
plan. Utah R. Evid. 404(b). Additionally, although other crimes
cannot be admitted to show propensity under rule 404(b), in child
molestation cases such evidence may be admitted expressly for
propensity under rule 404(c). Id. R. 404(c).
¶9 Jimenez does not address whether the testimony of other
victims would have been admissible at trial if the charges were
severed. Accordingly, he has not shown that a motion to sever
20100957‐CA 3 2013 UT App 76State v. Jimenez
“should have been granted.” Hallet, 796 P.2d at 706. As a result, he
cannot show that trial counsel was ineffective for failing to move
to sever the charges for separate victims.
¶10 Finally, Jimenez asserts that trial counsel was ineffective for
failing to object to testimony from his ex‐wife regarding the reason
for their divorce in 2000. He contends that the testimony was
inadmissible as prior bad acts evidence under rule 404(b). Even if
counsel should have objected, which we do not decide, Jimenez
cannot show any prejudice from the testimony.
¶11 To show that counsel’s deficient performance prejudiced his
defense, Jimenez must demonstrate that, absent counsel’s error,
there is a reasonable probability that the result of the proceeding
would have been different. See Strickland v. Washington, 466 U.S.
668, 694 (1984). “A reasonable probability is a probability sufficient
to undermine confidence in the [verdict].” Id. Ex‐wife unexpectedly
testified in a cursory manner that one of the reasons for their
divorce was Jimenez’s physical abuse of her. No further explana‐
tion or detail was presented. Given the direct testimony of the three
victims regarding the duration, frequency, and particulars of the
sexual abuse by Jimenez, there is no reasonable probability of a
different outcome without Ex‐wife’s testimony. The other evidence
against Jimenez was overwhelming.
¶12 In sum, Jimenez fails to establish a claim of ineffective
assistance of his trial counsel.1 Affirmed.
1. In his statement of issues, Jimenez references the plain error
doctrine as another means of review. However, he did not brief
plain error for any single issue raised and we do not address it. See
Utah R. App. P. 24.
20100957‐CA 4 2013 UT App 76