State v. Heyen

2020 UT App 147
THE UTAH C OURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
LEE ERVIN HEYEN,
Appellant.
Opinion
No. 20180804-CA
Filed October 29, 2020
Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 151911025
Brett J. DelPorto, Attorney for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee
J UDGE MICHELE M. C HRISTIANSEN FORSTER authored this Opinion,
in which J UDGES G REGORY K. ORME and J ILL M. P OHLMAN
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 	Lee Ervin Heyen was convicted on multiple counts of
raping two fifteen-year-old girls. Heyen argues that he would
not have been convicted had his trial counsel (Counsel) insisted
that tattoos on his face and neck be covered or at least requested
a cautionary jury instruction about them. We conclude that
Heyen’s ineffective assistance of counsel claim fails and affirm
his convictions.

State v. Heyen
20180804-CA 	2 	2020 UT App 147
BACKGROUND1
¶2 	Heyen sold or gave marijuana to two fifteen-year-old
girls, S.W. and C.W. He also employed these two girls to sell
marijuana. And on separate occasions, he raped them multiple
times.
¶3 	The first victim, S.W., had asked around her school for
someone to sell her marijuana. In response, Heyen’s son (Son)
introduced her to Heyen. S.W. became friends with Heyen, and
the two would “[s]moke [marijuana] and listen to music” at
Heyen’s apartment. On one occasion at his apartment, Heyen
asked S.W. “why [she] hung out with him” and expressed that
“he thought that there was a reason that [she] hung out with him
other than buying marijuana from him.” Heyen then insisted
that she sit next to him on the couch. S.W. recalled being afraid
of Heyen because he had told her that he had been “involved in
some sort of a shooting when he was younger,” he had been in
prison, and he had “been part of a gang.” She also revealed that
she was scared because of his “prison tattoos and gang tattoos.”
Heyen then raped and forcibly sodomized S.W., ignoring her
pleas to stop. After the rape, Heyen told S.W. “to stop crying”
and that if she “did anything to upset him, there would be
consequences.” S.W. recalled being worried not only about her
own well-being but also that of her family and friends.
¶4 	Over the next few weeks, S.W. continued to visit Heyen
because she “felt like [she] didn’t have a choice.” He would pick
up S.W. in his car and ask her if she “knew anybody who would
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d
346 (quotation simplified).

State v. Heyen
20180804-CA 	3 	2020 UT App 147
want to buy [drugs] from him.” On two separate occasions,
Heyen took S.W. to his apartment where she said that he raped
her in similar fashion to the first sexual assault. S.W. also alleged
that Heyen forced her to perform oral sex on him on two
separate occasions while in his car in a public parking lot.
¶5 	The other victim, C.W., became acquainted with Heyen
when she asked Son “if he knew anywhere that [she] could get a
tattoo at 14 years old, and he told [her] his dad was doing
tattoos.” 	Without 	obtaining 	her 	parents’ 	permission, 	C.W.
received five tattoos from Heyen over time. In addition to
getting tattooed, C.W. began to “hang out” with Heyen more
frequently: “We would just kind of smoke weed together, drink
together, have parties, sell.” In January 2015, she left her father’s
house, where she had been living, dropped out of school, and
moved to Heyen’s apartment. About that same time, C.W. heard
a 	rumor 	from 	a 	friend 	that 	she 	and 	Heyen 	were 	sexually
involved. She was upset about the rumor and told Heyen, who
responded that they “might as well just make it true.” C.W.
recalled feeling “terrified” that Heyen was proposing a sexual
relationship.
¶6 	A few weeks later, after having made threats implying
harm to C.W.’s family, Heyen pushed C.W. into his bedroom
and raped her. She recalled being “terrified” and “shocked” as
Heyen sexually assaulted her. C.W. testified that Heyen sexually
assaulted her “multiple times for the next four months,” alleging
that he raped her about three times a week during this period.
¶7 	Heyen was charged with seven counts of rape—four for
raping C.W. and three for raping S.W.—that occurred between
January and May 2015. He was also charged with three counts of
distributing or arranging to distribute a controlled substance,
one with respect to C.W. and two with respect to S.W.
¶8 	Heyen’s defense at trial was that while he may have been
involved in drug dealing and practiced questionable parenting,

State v. Heyen
20180804-CA 	4 	2020 UT App 147
he did not rape the two victims. Noting that there was no DNA
evidence, no photographs, no video, no third-party witnesses,
and no text messages to corroborate the victims’ allegations of
sexual assault, Heyen argued that the accusations of rape were
based on “just the words of teenage girls.” Thus, challenging the
credibility of the two victims was critical to his defense, which is
the context in which Heyen’s tattoos came into play. Heyen
wanted to introduce evidence of a spiderweb tattoo “on [his]
penis—a hard-to-miss tattoo that neither alleged victim reported
seeing—without opening the door for the state to introduce
other tattoo evidence.”
¶9 	While Heyen wanted the penis tattoo evidence admitted,
he argued that the “probative value of [his] prior gang affiliation
and 	[other] 	gang-affiliated 	tattoos 	[was] 	substantially
outweighed by the danger of unfair prejudice.” These tattoos
were associated with the white supremacy movement: “SAC”2
written on his forehead, a swastika3 on his stomach, a broken
sun cross4 on his neck, “Supreme White Power”5 written under
2. “Soldiers of Aryan Culture (SAC) is a large Utah-based white
supremacist 	prison 	gang.” 	Soldiers 	of 	Aryan 	Culture, 	Anti-
Defamation League, https://www.adl.org/education/references/
hate-symbols/soldiers-of-aryan-culture 	[https://perma.cc/ZC6R-
937C].
3. “Since 1945, the swastika has served as the most significant
and 	notorious 	of 	hate 	symbols, 	anti-Semitism 	and 	white
supremacy 	. 	. 	. 	. 	In 	the 	United 	States, 	the 	swastika 	is
overwhelmingly 	viewed 	as 	a 	hate 	symbol.” 	Swastika, 	Anti-
Defamation 	League, 	https://www.adl.org/education/references
/hate-symbols/swastika [https://perma.cc/A2Q3-NZVF].
4. 	“The 	white 	supremacist 	version 	of 	the 	Celtic 	Cross,
which 	consists 	of 	a 	square 	cross 	interlocking 	with 	or
(continued…)

State v. Heyen
20180804-CA 	5 	2020 UT App 147
his neck, and “88”6 written on the top of his head. In contrast,
the State wanted to introduce evidence of the totality of Heyen’s
tattoos for two reasons. First, the State argued that the “whole
picture in context” served to rebut the fabrication claim by
showing that it would have been unlikely that S.W. and C.W.
would notice the penis tattoo among the many tattoos all over
Heyen’s body. Second, the State believed that the tattoos, “in
conjunction with evidence of Heyen’s statements to the victims
that he was a member of a gang and had been to prison,” would
have given credence to the claims that he had threatened S.W.
and C.W. and that they took the threats as credible.
¶10 	Counsel 	stipulated 	to 	the 	admission 	of 	a 	number 	of
photographs showing Heyen’s tattoos on his face, neck, arms,
and 	hands, 	but 	he 	specifically 	asked 	the 	court 	to 	exclude
“testimony or pictures of [the] swastika [tattoo] because it didn’t
have an effect on” C.W. or S.W. The district court essentially
(…continued)
surrounded 	by 	a 	circle, 	is 	one 	of 	the 	most 	important
and commonly used white supremacist symbols. . . . It is
the short ‘sun cross’ version of the Celtic Cross, surrounded
by 	a 	circle, 	that 	is 	more 	commonly 	used 	by 	white
supremacists 	. . . .” 	Celtic 	Cross, 	Anti-Defamation 	League,
https://www.adl.org/education/references/hate-symbols/celtic-
cross [https://perma.cc/6HFR-TK47].
5. “Supreme White Power” is a common prison tattoo. SWP,
Anti-Defamation 	League, 	https://www.adl.org/education/
references/hate-symbols/swp [https://perma.cc/YHZ6-ZBWD].
6. “88 is a white supremacist numerical code for ‘Heil Hitler.’ H
is the eighth letter of the alphabet, so 88 = HH = Heil Hitler.”
88, Anti-Defamation 	League, 	https://www.adl.org/education/
references/hate-symbols/88 [https://perma.cc/JTT6-ZFDP].

State v. Heyen
20180804-CA 	6 	2020 UT App 147
agreed with Counsel in making the following rulings: First, there
was a “significant risk” in exposing the jury to “tattoos that
obviously symbolize white supremacist content” because the
“content of the tattoos“ could be “used in a way that would
detract the jury’s attention away from the facts of this case.”
Second, the victims could testify that they felt “threatened”
because 	Heyen 	had 	told 	them 	that 	his 	tattoos 	were 	“gang
tattoos.” Third, “the defense’s introduction of the evidence of the
penis tattoo [would] not open the door to the State being able to
introduce evidence of the other tattoos.” But the district court
cautioned, “[T]here may be other ways in which [the] defense
may open the door and it, obviously, needs to proceed carefully,
but 	the 	mere 	introduction 	of 	that 	[penis 	tattoo] 	evidence
wouldn’t do it.”
¶11 	Although Heyen had grown out his facial hair and hair on
his head and wore a shirt and tie for trial, some of the tattoos on
his forehead, face, neck, and hands remained visible to members
of the jury.
¶12 	During voir dire, the prospective jurors were asked about
the 	tattoos 	visible 	on 	Heyen’s 	body. 	None 	of 	the 	eight
individuals who were ultimately selected to sit on the jury
expressed that they knew the meaning of those tattoos. Six of the
eight jurors were expressly asked by Counsel if they knew the
meanings of the visible tattoos, and they all denied they did. The
remaining 	two 	jurors, 	while 	not 	explicitly 	asked 	about 	the
meaning of the tattoos in question, both expressed that the
tattoos would not impact their judgment: one said the tattoos
were in no way “troubling,” and the other said that she had
tattoos and had “no problem” with Heyen’s tattoos.
¶13 	At 	trial, 	Counsel 	began 	his 	opening 	statement 	by
suggesting that his client was being unfairly targeted because of
his tattoos: “[Heyen] is a man who’s the easiest guy to blame.
Look at him. Tattoos on his face. Look at the tattoos on his arm,

State v. Heyen
20180804-CA 	7 	2020 UT App 147
on his hands. He has tattoos up his sleeve. He’s the easiest man
to blame.” Both S.W. and C.W. testified that Heyen had tattoos
all over his body. And S.W. testified that Heyen had described
his tattoos as “prison tattoos and gang tattoos.” The State also
presented several photos of Heyen with his tattoos exposed—
including photographs of Heyen’s head that clearly showed his
SAC, broken cross, and 88 tattoos—that were admitted without
objection. Heyen then presented evidence of the penis tattoo,
specifically to make the point that it predated the rapes of C.W.
and S.W. And both victims testified that they did not see the
tattoo on Heyen’s penis.
¶14 	The jury convicted Heyen on four counts of rape of C.W.,
one count of rape of S.W., and the three counts of distribution.
He was acquitted of the other charges. Heyen appeals.7
ISSUE AND STANDARD OF REVIEW
¶15 	The primary issue on appeal is whether Counsel was
constitutionally ineffective for not concealing Heyen’s tattoos
during trial. “A claim of ineffective assistance of counsel raised
for the first time on appeal presents a question of law, which we
7. While the notice of appeal does not distinguish between the
convictions for rape and distribution, it does not appear from
Heyen’s brief or the record that he is appealing the convictions
for distribution of a controlled substance. At trial, Heyen stated
that he “absolutely” believed that he “should be convicted of
selling 	marijuana.” 	And 	in 	his 	brief, 	Heyen 	states 	that 	he
“acknowledged in open court” that he was “guilty” of the
“crime . . . of distributing a controlled substance.” Furthermore,
Heyen’s brief states that “[t]his appeal is from a conviction for
rape.” Thus, because Heyen has not expressly challenged the
jury’s verdict on the distribution charges, we limit our analysis
to the five rape convictions.

State v. Heyen
20180804-CA 	8 	2020 UT App 147
consider de novo.” State v. King, 2018 UT App 190, ¶ 11, 437 P.3d
425 (quotation simplified).8
ANALYSIS
¶16 	Heyen 	appeals 	his 	rape 	convictions, 	asserting 	that 	if
Counsel had advised or insisted that he cover the tattoos on his
face and neck, “there is a reasonable probability that . . . Heyen
would 	have 	been 	acquitted 	on 	tenuous 	allegations 	from
witnesses whose credibility was impeached.” Heyen specifically
argues that allowing him to appear “in court with his tattoos in
full view of jurors” “essentially nullified [the] victory” of the
8. Heyen also argues that he received ineffective assistance
because Counsel did not request a cautionary jury instruction
about the tattoos. But in the single paragraph in his appellate
brief 	in 	which 	he 	makes 	this 	argument, 	he 	provides 	no
explanation of what that instruction should have been. Without
this information, we cannot reach the conclusion that Heyen was
prejudiced. “To show prejudice in the ineffective assistance of
counsel context, the defendant bears the burden of proving that
counsel’s 	errors 	actually 	had 	an 	adverse 	effect 	on 	the
defense . . . . Proof of ineffective assistance of counsel cannot be a
speculative matter but must be a demonstrable reality.” State v.
Munguia, 2011 UT 5, ¶ 30, 253 P.3d 1082 (quotation simplified).
In 	short, 	by 	not 	providing 	us 	with 	a 	proposed 	cautionary
instruction, Heyen also cannot demonstrate what difference a
cautionary instruction would have made to the outcome of the
trial. See State v. Popp, 2019 UT App 173, ¶ 29, 453 P.3d 657 (“To
establish prejudice, [a defendant] must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (quotation simplified)).

State v. Heyen
20180804-CA 	9 	2020 UT App 147
court’s 	ruling 	excluding 	his 	racist 	tattoos: 	“Instead 	of
shielding . . . Heyen from the prejudicial impact of the tattoos,
the defense paraded the racist imagery in front of jurors for four
days.” Thus, Heyen claims that Counsel “was ineffective in
usurping . . . Heyen’s right to prevent jurors from viewing the
racist tattoos.”
¶17 	To succeed on a claim of ineffective assistance of counsel,
Heyen 	must 	demonstrate 	that 	Counsel’s 	“performance 	was
deficient” and that “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Because failure to establish either prong of the test is fatal to an
ineffective assistance of counsel claim, we are free to address
[Heyen’s] claims under either prong.” See Honie v. State, 2014 UT
19, ¶ 31, 342 P.3d 182. Thus, we limit our analysis to Strickland’s
first prong because we conclude that Counsel’s performance was
not deficient.
¶18 	To show deficient performance, Heyen must overcome
the presumption that Counsel’s decision not to cover the tattoos
“falls 	within 	the 	wide 	range 	of 	reasonable 	professional
assistance.” See Strickland, 466 U.S. at 689. “The court gives trial
counsel wide latitude in making tactical decisions and will not
question such decisions unless there is no reasonable basis
supporting them.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162
(quotation 	simplified). 	Moreover, 	“the 	question 	of 	deficient
performance is not whether some strategy other than the one
that counsel employed looks superior given the actual results of
trial. It is whether a reasonable, competent lawyer could have
chosen the strategy that was employed in the real-time context of
trial.” State v. Nelson, 2015 UT 62, ¶ 14, 355 P.3d 1031 (quotation
simplified). And “even where a court cannot conceive of a sound
strategic reason for counsel’s challenged conduct, it does not
automatically 	follow 	that 	counsel 	was 	deficient. 	. 	. 	. 	[T]he
ultimate 	question 	is 	always 	whether, 	considering 	all 	the
circumstances, 	counsel’s 	acts 	or 	omissions 	were 	objectively

State v. Heyen
20180804-CA 	10 	2020 UT App 147
unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350;
accord State v. Ray, 2020 UT 12, ¶¶ 34–36, 469 P.3d 871.
¶19 	Here, Heyen argues that leaving his face and neck tattoos
exposed during trial was unreasonable and that “there was no
reason to allow jurors to see them.” We disagree. There were
several 	obvious 	reasons 	for 	leaving 	the 	tattoos 	uncovered,
leading 	to 	the 	conclusion 	that 	it 	was 	not 	“objectively
unreasonable” for Counsel to allow the jury to see them. See
Scott, 2020 UT 13, ¶ 36.
¶20 	First, because the jury was going to see a good number of
the tattoos anyway through admissible photographic evidence,
see supra ¶ 10, Counsel could reasonably have concluded that
covering Heyen’s tattoos would have been counterproductive.
Covering the tattoos could have left the jury with the impression
or room to speculate that the tattoos bore a more significant and
offensive 	meaning 	than 	the 	jury 	might 	have 	otherwise
presumed. 	In 	addition, 	Counsel 	may 	have 	feared 	that 	any
attempt to conceal (e.g., through cosmetics) the tattoos may have
been obvious to the jury and caused the jury to regard Heyen
with skepticism, as being untrustworthy, or as literally trying to
hide something. Thus, considering the circumstances, it was not
unreasonable for Counsel to favor transparency concerning the
existence of Heyen’s tattoos when evidence of them would be
presented at trial anyway.
¶21 	Second, 	Counsel 	attempted 	to 	use 	Heyen’s 	tattoos
strategically by suggesting that Heyen was an easy target for
prosecution 	because 	of 	his 	tattoos 	and 	not 	because 	of 	the
evidence: “Look at him. Tattoos on his face. Look at the tattoos
on his arm, on his hands. He has tattoos up his sleeve. He’s the
easiest man to blame.” Counsel went on to say, “When you look
at the evidence and when you judge [Heyen], judge him not on
the ink on his skin but on the content of the evidence.” A
significant 	theme 	of 	Counsel’s 	argument 	at 	trial 	was 	that

State v. Heyen
20180804-CA 	11 	2020 UT App 147
Heyen’s tattoos made him an easy target for blame from the
victims and attack by the prosecution. And the only viable way
for Counsel to make this argument was to acknowledge the
presence of Heyen’s numerous tattoos. Moreover, Counsel used
the tattoo on Heyen’s penis in an effort to discredit the two
victims, and Counsel may have thought the jury would have
viewed concealing Heyen’s other tattoos as inconsistent. Thus,
Counsel could reasonably conclude that any attempt to cover or
disguise Heyen’s tattoos in light of such a defense could have
been perceived as, at the very least, disingenuous by the jury. By
avoiding a counterproductive move, Counsel’s decision not to
cover 	Heyen’s 	tattoos 	cannot 	be 	viewed 	as 	“objectively
unreasonable.” See Scott, 2020 UT 13, ¶ 36.
¶22 	Being upfront about the existence of the tattoos—to the
point of allowing them to be visible during voir dire—also
allowed Counsel to screen the prospective jurors to eliminate
those who might bear an overt bias against tattooed persons. By
allowing the prospective jurors to see some of Heyen’s visible
tattoos that the jury was going to see photographic evidence of
during the trial, Counsel could reasonably conclude that he had
effectively desensitized the jury to the impact of Heyen’s tattoos
from the earliest stages of the trial. This strategy was reasonable
because it allowed Counsel to select jury members who would
be dispassionate about Heyen’s tattoos from the outset.
¶23 	Transparency about the existence of the tattoos, along
with their strategic use to paint Heyen as an easy target, was a
reasonable decision and, under the circumstances, “might be
considered sound trial strategy.” See Strickland, 466 U.S. at 689
(quotation simplified). “We view Counsel’s trial decision as a
quintessential question of judgment and strategy. We easily
could imagine this appeal being before us under the alternative
scenario 	in 	which 	Counsel 	instead 	had 	advised” 	Heyen 	to
conceal his tattoos. See State v. Fleming, 2019 UT App 181, ¶ 12,
454 P.3d 862. Indeed, under that scenario, Heyen might well

State v. Heyen
20180804-CA 	12 	2020 UT App 147
have complained that Counsel’s decision had caused him to
come across as guileful before the jury. Because Heyen does not
show 	that 	Counsel’s 	actions 	were 	unreasonable 	given 	the
circumstances, he has not established the first Strickland prong.
Therefore, 	his 	ineffective 	assistance 	of 	counsel 	claim 	is
unavailing.
CONCLUSION
¶24 	We reject Heyen’s claim of ineffective assistance because
reasonable counsel could have had strategic reasons for leaving
Heyen’s 	tattoos 	exposed 	during 	trial, 	and 	thus 	it 	was 	not
objectively unreasonable for Counsel to do so.
¶25 	Affirmed.