State of Utah, v. Cruz

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Samuel Cruz,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010181-CA

F I L E D
April 11, 2002 2002 UT App 106 -----

Fifth District, Cedar City Department
The Honorable Robert T. Braithwaite

Attorneys:
Hakeem Ishola, Katy, Texas, for Appellant
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee -----

Before Judges Jackson, Bench, and Greenwood.
BENCH, Judge:

Defendant argues that the trial court committed plain error when it permitted Detective Minefee to state that the victim "never wavered in her statements to the police in identifying Defendant as the perpetrator." Defendant alleges that this statement improperly vouches for the victim's credibility in violation of Rule 608(a) of the Utah Rules of Evidence. Defendant points to our decision in State v. Stefaniak, 900 P.2d 1094 (Utah Ct. App. 1995), in support of his argument. In Stefaniak, we concluded that it was improper for the State to elicit testimony from a witness as to the witness's impressions of a child victim's candor and truthfulness on a particular occasion. See id. at 1095. We held that to allow such testimony would "'usurp the fact-finding function of judge or jury,'" id. at 1096 (quoting State v. Rimmasch, 775 P.2d 388, 392 (Utah 1989)), because the jury's duty is to determine witness credibility. Unlike the witness in Stefaniak, Detective Minefee did not give an opinion of the victim's candidness. All Detective Minefee testified to was that the victim's story never wavered in its specifics during the times that he interviewed her. In State v. Adams, 2000 UT 42, 5 P.3d 642, the supreme court concluded that "[r]ule 608(a) does not prohibit an expert. . . from giving testimony from which a jury could infer the veracity of the witness." Id. at ¶14. Detective Minefee's testimony is similar to that of the witness in Adams in that it "did not directly address [the victim's] veracity," and did not "impermissibly invade the province of the jury or violate rule 608(a)." Id. We conclude, therefore, that the trial court did not commit plain error in admitting Detective Minefee's testimony.

Next, Defendant argues that the trial court plainly erred in allowing Daneen Peterson, a social worker who collected the rape kit, to testify to anecdotal statistical evidence, and thereby bolster the victim's credibility. Defendant points to State v. Iorg, 801 P.2d 938 (Utah Ct. App. 1990), where we concluded that it was improper to allow a deputy's testimony that, in her experience, delayed reporting of sexual abuse cases did not mean the victim was untruthful. See id. at 941. We held that this evidence was the type of "anecdotal 'statistical' evidence concerning matters not susceptible to quantitative analysis such as witness veracity" that leads to "undue prejudice." Id. By comparison, in our case, Ms. Peterson did not offer any opinion as to the credibility of the victim's account of the attack, or whether the victim was actually raped. Ms. Peterson's testimony, that it was not unusual for a rape examination conducted seventy-two hours after the incident to not produce any physical evidence, was elicited by the State simply to offer the jury an explanation as to why there was no physical evidence in this case. We conclude that Ms. Peterson's testimony did not introduce anecdotal statistical evidence designed to bolster witness credibility, and it was not plain error for the trial court to admit it.

Defendant's next allegation of plain error relates to statements made during cross-examination of Defendant, which he claims improperly shifted the burden of proof from the State to Defendant. Defendant takes issue with a portion of questioning during cross-examination where the prosecutor asked him to recount his time line, then asked him about a fifteen minute gap when Defendant was alone and no one else could account for his whereabouts. Defendant argues that this line of questioning shifted the burden to Defendant to prove his affirmative defense. We disagree. When a defendant waives his right not to testify, he subjects himself to the same cross-examination as other witnesses. See State v. Benson, 712 P.2d 256, 259 (Utah 1985). During this examination, the prosecutor has the right to question a defendant on "matters that would tend to contradict, explain, or cast doubt upon the credibility of his testimony." Id. at 259-60. Defendant in the instant case opened the door by asserting that he could not have committed the rape because his time was all accounted for that night and others could vouch for his whereabouts. The prosecutor was entitled therefore to elicit from Defendant an acknowledgment that there was, in fact, a period of time where no one could account for his whereabouts. We conclude that the prosecutor's questions were within the boundaries of acceptable cross-examination, and the trial court did not plainly err in allowing them.

Defendant contends that the evidence presented by the State was insufficient to support his conviction. When reviewing the sufficiency of the evidence, we will "uphold the [jury's] decision if, upon reviewing the evidence and all inferences that can reasonably be drawn from it, we conclude that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt." State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989). Defendant acknowledges that the State presented evidence that could "conceivably support" the verdict; therefore, Defendant has not met his burden of showing us how this evidence when "viewed in the most favorable light, is insufficient to support the verdict." State v. Shepherd, 1999 UT App 305,¶25, 989 P.2d 503. We have considered Defendant's other arguments on appeal and conclude that they are without merit. See State v. Allen, 839 P.2d 291, 303 (Utah 1992) (permitting appellate courts to decline to analyze and address in writing every issue raised).

Accordingly, we affirm the judgment of the trial court.
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Pamela T. Greenwood, Judge