Case Information
*1 IN THE UTAH COURT OF APPEALS
‐‐‐‐ ooOoo ‐‐‐‐ Utah, ) MEMORANDUM DECISION
)
Plaintiff Appellee, ) Case No. ‐ )
v. ) F I L E D
) (July 2012) Saul Cristobal, )
)
Defendant Appellant. ) ‐‐‐‐‐
Fourth District, Department, Honorable Lynn W. Davis
Attorneys: Robert Congelliere, Provo, Appellant
Mark L. Shurtleff Andrew F. Peterson, Salt Lake City, Appellee Before Judges McHugh, Thorne, Christiansen.
McHUGH, Judge: Saul appeals from conviction aggravated assault “in enhancement, second degree felony, see Code Ann. § ‐ ‐ (2008); § 202; § ‐ ‐ 203.1 2011), riot, degree felony, see § ‐ (2008). We affirm.
Since events giving rise charges case, Legislature made material statute. that statute effect when offense occurred. Compare Ann.
(continued...) The background in this case is same in companion case of High , released concurrently with this opinion, we do not restate detail here. At trial, Cristobal testified that he is former of Provo Varrio Locotes, PVL, street gang. While Cristobal raised other arguments his appellate brief, oral argument he limited claim appeal challenge under rule of of part final The Evidence. Activity Evidence of Rules Utah Gang analysis 404(b) of Utah Rules of Evidence rule balancing of probative value High See prejudice. unfair of its against of (stating that “‘may be excluded probative value is outweighed danger of unfair prejudice’” Nelson Waggoner, 1120)). With exception, all evidence challenged Cristobal also formed basis High’s appeal. See 42. As explained High either properly received any assumed error harmless. ¶¶ 54. only Cristobal challenges does PVL considers be its (the testimony). concedes relevance this evidence, but argues should have been excluded substantially 1. (...continued)
(2008), with 2011). Because legislature any substantive provisions statutes discussed opinion, we cite current version respect statutes statute. 2. Gang Activity Evidence includes be territory, PVL’s purpose fight within territory, fighting aggressive behavior earns status within High acknowledged he knew such activity probably illegal. 42. Rules Evidence amended 2011. amendments intended “be stylistic only” intended “change any result any ruling admissibility.” R. Evid. advisory committee’s notes. Therefore, unless otherwise indicated, current rules reader’s convenience.
¶3 “‘We review a trial court’s decision to admit or exclude [r]ule 403 . . . [using] an abuse standard.’” State v. Downs , 2008 UT App 247, ¶ 6, 190 P.3d (alterations original) State v. Castillo , 324, 6, 170 P.3d 1147) (additional internal quotation marks omitted). Rule provides a “court may exclude relevant a . . . prejudice.” “inclusionary” and “presumes the admission relevant where the an unusual propensity unfairly prejudice, inflame, or mislead jury.” v. Kooyman , 26, P.3d (internal quotation marks omitted). territory testimony relevant “in enhancement motive explains why gang members might congregate area exhibit hostility toward intruding nonmembers. People Hernandez , P.3d 1080, 1086 (Cal. 2004) (“Evidence defendant’s gang affiliation—including the gang’s territory . . . —can help prove identity, motive, modus operandi, specific intent, means applying force fear, or issues pertinent guilt charged crime.”) ; People Ayala , N.E.2d (Ill. App. Ct. 1990) (holding victims were territory claimed two rival and admissible prove motive seemingly inexplicable attack); People Cherry N.Y.S.2d (N.Y. App. Div. 2007) (holding err expert testimony gangs, including “the geographic areas ascribed the local gang,” where “explained possible motive, namely perceived disrespect victim who gang sold drugs an area controlled the gang”). Cristobal, High, an unidentified man, had initiated unprovoked attack two brothers they walked along River Parkway. Where neither brother affiliated territory testimony was needed prove state’s theory brothers were harassed then brutally attacked no apparent reason while using River Parkway. the brothers gang’s time altercation more likely aggressors. ¶5 We are likewise convinced would likely “rouse jury overmastering hostility.” Allen (internal quotation marks omitted). By time elicited testimony, jury aware “Provo Varrio Locotes” translates English “Provo *4 Neighborhood Crazies,” thereby suggesting “neighborhood.” Under these circumstances, additional claims Provo carries little conclude exceed testimony. ¶7 Affirmed.
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Carolyn B. McHugh, Judge
¶8 WE CONCUR:
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William A. Thorne Jr., Judge
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Michele Christiansen, Judge