State v. Lorenzo

2015 UT App 189

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
ISAAC LORENZO,
Defendant and Appellant.

Memorandum Decision
No. 20140152-CA
Filed August 6, 2015

Fifth District Court, Cedar City Department
The Honorable G. Michael Westfall
No. 131500545

Matthew D. Carling, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Memorandum
Decision, in which JUDGES JAMES Z. DAVIS and JOHN A. PEARCE
concurred.

VOROS, Judge:

¶1 With his two young daughters in the car, Isaac Lorenzo
led police officers on a high-speed chase through Cedar City. He
was convicted of failure to respond to an officer’s signal, a third
degree felony; reckless endangerment, a class A misdemeanor;
reckless driving, a class B misdemeanor; and driving on a
suspended or revoked driver license, a class B misdemeanor.
Lorenzo contends that insufficient evidence supported his
reckless-endangerment, reckless-driving, and suspended-license
convictions and that his trial counsel rendered constitutionally
ineffective assistance. We affirm.
State v. Lorenzo

BACKGROUND1

¶2 Recognizing Lorenzo from prior encounters, a police
officer stopped him for outstanding warrants and for driving
with an invalid driver license. During the stop, the police officer
smelled alcohol on Lorenzo’s breath and the two ‚started talking
about the odor of alcoholic beverage.‛ In response, Lorenzo took
off, leading the police officer on a high-speed chase through
Cedar City.

¶3 Lorenzo sped through a residential neighborhood, ran
stop signs, sped past multiple cars, and crossed in front of
oncoming traffic and onto the freeway. Lorenzo then exited the
freeway, turned through a busy intersection, and cut off cars as
he sped toward the north-bound freeway. Lorenzo then entered
the north-bound freeway, weaving in and out of traffic. During
the chase, the police officer chased Lorenzo at speeds ranging
from 90 to 110 miles per hour. The police officer called for
backup, and another police officer joined the chase. Lorenzo
exited the freeway again, ran another red light, and sped
through a business district before stopping and surrendering in
his residential neighborhood. Lorenzo’s two daughters stepped
out of the car, ‚terrified.‛

¶4 At trial, Lorenzo admitted that ‚he was out of control‛
and that he ‚was driving probably very fast—a little fast.‛ He
acknowledged that during the chase his ‚daughters were
nervous‛ but that they were not in danger, because he ‚always
drove well.‛

1. ‚On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.‛
State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (citation and internal
quotation marks omitted). ‚We present conflicting evidence only
as necessary to understand issues raised on appeal.‛ Id.

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State v. Lorenzo

¶5 The parties agreed to a bifurcated trial. A jury tried
Lorenzo for failure to respond to an officer’s signal, reckless
driving, and reckless endangerment. The jury found Lorenzo
guilty of all charges. Lorenzo did not move for a directed verdict
or challenge the sufficiency of the evidence supporting his
convictions.

¶6 The trial court tried Lorenzo for driving on a suspended
or revoked driver license. At the bench trial, the State called the
police officer and a hearing officer from the Division of Motor
Vehicles (DMV) to testify. The DMV officer testified that
Lorenzo did not have a valid driver license, that he could not get
a valid driver license, and that his driving privileges ‚are
restricted . . . so he cannot have any alcohol in his system when
he drives.‛ The police officer testified that Lorenzo’s driver
license was ‚suspended or revoked for alcohol.‛ After
concluding that the alcohol restriction could only have resulted
from a conviction for driving under the influence (DUI)—an
enhancement to the driver-license charge—the trial court found
Lorenzo guilty of driving on a suspended or revoked driver
license, a class B misdemeanor.

ISSUES ON APPEAL

¶7 Lorenzo asserts three claims of error on appeal. First, he
contends that insufficient evidence supported his jury-trial
convictions for reckless driving and reckless endangerment.

¶8 Second, Lorenzo contends that insufficient evidence
supported his bench-trial conviction for driving on a suspended
or revoked driver license.

¶9 Finally, Lorenzo contends that his trial counsel rendered
constitutionally ineffective assistance by failing to file a motion
to suppress evidence of the initial traffic stop on the ground that
reasonable suspicion did not support the stop.

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State v. Lorenzo

ANALYSIS

I. Insufficient Evidence Claims

A. Reckless Driving and Reckless Endangerment

¶10 Lorenzo first contends that insufficient evidence
supported his jury-trial convictions for reckless driving and
reckless endangerment. He argues that his ‚driving did not
amount to willful and wanton nor did it create a situation that
was a substantial risk‛ of serious bodily harm or death, because,
‚*f+or the circumstances, Lorenzo did what he could to keep his
daughters and everyone else safe.‛ The State responds that
Lorenzo failed to preserve this issue for appeal and that, in any
event, ‚the evidence was sufficient to support the jury’s verdicts
for both reckless driving and reckless endangerment.‛

¶11 Under the preservation doctrine, a sufficiency claim ‚not
raised before the trial court cannot be raised on appeal.‛ State v.
Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. ‚*T+o preserve an issue for
appeal the issue must be presented to the trial court in such a
way that the trial court has an opportunity to rule on that issue.‛
Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366 (citation and
internal quotation marks omitted). Because the trial court has no
duty to examine the ‚sufficiency of the evidence unless the
defendant moves the court to do so or there is an ‘apparent’
insufficiency, the preservation rule ensures that the issue will be
brought to the trial court’s attention and the trial court will have
the opportunity to address the issue.‛ Holgate, 2000 UT 74, ¶ 16.
The preservation rule ‚prevent*s+ a defendant from deliberately
foregoing relief below based on the sufficiency of the evidence,
hoping that a remedial evidentiary defect might not be perceived
and corrected, thus strategically facilitating the defendant’s
chance for a reversal on appeal.‛ Id. We will not consider an
unpreserved claim on appeal unless the appellant demonstrates
that the trial court committed plain error, shows that exceptional

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State v. Lorenzo

circumstances exist, or asserts ineffective assistance of counsel.
State v. Low, 2008 UT 58, ¶ 19, 192 P.3d 867.

¶12 Lorenzo has not preserved his sufficiency claim and does
not raise any exception to the preservation rule on appeal. He
instead argues that State v. Holgate, 2000 UT 74, 10 P.3d 346, ‚did
not determine that the ‘plain error’ exception was required to
reach a sufficiency challenge to a jury verdict.‛ In Holgate, our
supreme court noted that the Utah Code provides that ‚the trial
court ‘shall’ grant relief when the evidence is insufficient, even if
a defendant fails to properly raise the issue, but only when the
evidentiary defect is ‘apparent’ to the trial court.‛ Id. ¶ 15. From
this language, Lorenzo argues that the trial court had ‚an
inherent duty to ensure that the evidence was sufficient,
requiring trial court action regardless of preservation.‛ But he
raises this argument for the first time in his reply brief. ‚It is well
settled that issues raised by an appellant in the reply brief that
were not presented in the opening brief are considered waived
and will not be considered by the appellate court.‛ Allen v. Friel,
2008 UT 56, ¶ 8, 194 P.3d 903 (citation and internal quotation
marks omitted). Lorenzo’s sufficiency claim accordingly fails.2

B. Driving on a Suspended or Revoked Driver License

¶13 Lorenzo next contends that insufficient evidence
supported his bench-trial conviction for driving on a suspended
or revoked driver license. Lorenzo does not challenge the trial
court’s finding that he was driving with a suspended license.
Instead, he argues that the evidence supported at most a class C

2. We note that Lorenzo’s sufficiency claim would have failed in
any event. Indeed, his appellate counsel effectively conceded the
sufficiency argument at oral argument when he stated, ‚Once
that video . . . was shown to the jury, it was over. It was really
over.‛

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State v. Lorenzo

misdemeanor, not a class B misdemeanor. He argues that
because ‚the statute for driving on a suspended or revoked
license calls for various and specific reasons why one has to be
revoked or denied in order for someone to be found guilty,‛ it
was ‚inappropriate *for the trial court+ to just infer or guess as to
why Lorenzo’s license was revoked when the statute and the
elements listed within it are very specific.‛ The State responds
that the trial court had sufficient evidence to conclude that
Lorenzo committed a class B, rather than a class C,
misdemeanor.

¶14 ‚When reviewing a bench trial for sufficiency of the
evidence, we must sustain the trial court’s judgment unless it is
against the clear weight of the evidence, or if [we] otherwise
reach[] a definite and firm conviction that a mistake has been
made.‛ State v. Gordon, 2004 UT 2, ¶ 5, 84 P.3d 1167 (alterations
in original) (citation and internal quotation marks omitted). ‚*I+n
those instances in which the trial court’s findings include
inferences drawn from the evidence, we will not take issue with
those inferences unless the logic upon which their extrapolation
from the evidence is based is so flawed as to render the inference
clearly erroneous.‛ Glew v. Ohio Sav. Bank, 2007 UT 56, ¶ 18, 181
P.3d 791.

¶15 A person may be convicted of a class C misdemeanor for
driving a motor vehicle with a ‚denied, suspended, disqualified,
or revoked‛ driver license. Utah Code Ann. § 53-3-227(1), (2)
(LexisNexis 2010). This offense becomes a class B misdemeanor
if the driver’s license was denied, suspended, disqualified, or
revoked for, among other things, an alcohol-related prior
offense. Id. § 53-3-227(3) (identifying enhancing alcohol-related
prior offenses by Utah Code section numbers).

¶16 At the bench trial, the police officer testified that
Lorenzo’s driver license had been ‚suspended or revoked for
alcohol,‛ but he did not specify which alcohol violation caused

20140152-CA 6 2015 UT App 189
State v. Lorenzo

Lorenzo’s license restriction. A DMV hearing officer testified
that Lorenzo’s driving privileges ‚are restricted . . . so he cannot
have any alcohol in his system when he drives.‛ The trial court
and the parties then had the following exchange:

[Court]: Can I just infer that . . . if someone is
alcohol restricted . . . that the only way their license
can be alcohol restricted is if they have a prior
DUI?

[Prosecutor]: Yes.

....

[Trial Counsel]: *W+e’re not in the business of
inferring anything here. It needs to be stated
specifically . . . .

[Court]: Are there other reasons that *Lorenzo’s+
license could have been . . . alcohol restricted other
than having been convicted of a DUI?

[Trial Counsel]: That I’m aware of, no.

....

I just—when the proof is beyond a reasonable
doubt to just simply infer I would argue is taking it
a step too far.

On the basis of the testimony and the exchange with the parties,
the trial court concluded that a prior DUI triggered Lorenzo’s
driving restriction:

[B]ased on . . . what’s been presented in terms of
argument, and that is that there is no way that he

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State v. Lorenzo

could be [an] alcohol restricted driver other than to
have been convicted of a DUI, then I do find that
there is sufficient evidence to find beyond a
reasonable doubt that he’s been convicted of a DUI
and that that’s why his license was restricted at the
time.

Lorenzo argues that the trial court’s inference that a DUI caused
his license restriction ‚was flawed and clearly erroneous‛
because ‚*t+here was no evidence presented showing what the
alcohol restriction related to and when it was in place.‛

¶17 ‚*A+ reasonable inference arises when the facts can
reasonably be interpreted to support a conclusion that one
possibility is more probable than another.‛ State v. Cristobal, 2010
UT App 228, ¶ 16, 238 P.3d 1096. Here, the court apparently
believed that the inference it drew was not only a reasonable
inference, but the only reasonable inference from Lorenzo’s
alcohol-restricted license. Lorenzo did not identify at trial, nor
does he identify on appeal, any crime that would result in an
alcohol restriction but would not result in an enhancement. In
other words, he identifies no competing inference from the
evidence before the court. Accordingly, he has not demonstrated
that the trial court’s finding contravened the clear weight of the
evidence.3

3. A crime may exist that would result in an alcohol restriction
but not an enhancement. But ‚*p+inpointing where and how the
trial court allegedly erred is the appellant’s burden,‛ not the
appellate court’s. GDE Constr., Inc. v. Leavitt, 2012 UT App 298,
¶ 24, 294 P.3d 567. ‚An appellate court that assumes that burden
on behalf of an appellant ‘distorts th*e+ fundamental allocation
of benefits and burdens.’‛ Niemela v. Imperial Mfg., Inc., 2011 UT
App 333, ¶ 24, 263 P.3d 1191 (alteration in original) (quoting
(continued…)

20140152-CA 8 2015 UT App 189
State v. Lorenzo

II. Ineffective-Assistance-of-Counsel Claim

¶18 Finally, Lorenzo contends that his trial counsel rendered
constitutionally ineffective assistance by failing to file a motion
to suppress evidence of the initial traffic stop on the ground that
reasonable suspicion did not support the stop. Lorenzo argues
that ‚*t+here was no sound trial strategy for failing to file a
suppression motion on the basis that [the police officer] lacked
reasonable suspicion to effectuate the initial traffic stop, which
led to all other charges . . . and was thus highly prejudicial.‛ The
State responds that because ‚no Fourth Amendment violation
occurred,‛ filing a motion to suppress would have been futile.

¶19 To succeed on his claim of ineffective assistance of
counsel, Lorenzo must establish that trial counsel performed
deficiently and that counsel’s deficient performance resulted in
prejudice. See, e.g., Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Jones, 2015 UT 19, ¶ 44, 345 P.3d 1195; State v.
Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92. We review claims of
ineffective assistance of counsel raised for the first time on
appeal for correctness. State v. Lucero, 2014 UT 15, ¶ 11, 328 P.3d
841.

¶20 In addition to proving both of the Strickland elements,
when an ineffective-assistance-of-counsel claim turns on an
alleged Fourth Amendment violation, the defendant bears the
additional burden of proving that the ‚Fourth Amendment
claim is meritorious and that there is a reasonable probability
that the verdict would have been different absent the excludable
evidence in order to demonstrate prejudice.‛ Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986).

(…continued)
State v. Robison, 2006 UT 65, ¶ 21, 147 P.3d 448). Accordingly, we
decline to do so.

20140152-CA 9 2015 UT App 189
State v. Lorenzo

¶21 The legality of the initial stop of Lorenzo’s vehicle does
not control this issue. A ‚prior illegality by officers does not
affect the subsequent arrest of a defendant where there is
an intervening illegal act by the suspect.‛ State v. Griego, 933 P.2d
1003, 1008 (Utah Ct. App. 1997) (citing United States v. Bailey, 691
F.2d 1009, 1016–17 (11th Cir. 1982)); accord State v. Earl, 2004 UT
App 163, ¶ 23, 92 P.3d 167. Thus, ‚notwithstanding a strong
causal connection in fact between lawless police conduct and a
defendant’s response, if the defendant’s response is itself a new,
distinct crime, then the police constitutionally may arrest the
defendant for that crime.‛ Bailey, 691 F.2d at 1016–17. ‚A
contrary rule would virtually immunize a defendant from
prosecution for all crimes he might commit that have a sufficient
causal connection to the police misconduct.‛ Id. at 1017.

¶22 This principle applies here. Even if the initial stop was
unlawful, Lorenzo’s underlying Fourth Amendment claim fails.
All of the charges against Lorenzo stemmed from his actions
after he fled the scene of the stop. Lorenzo committed separate
illegal acts—leading police on a dangerous, high-speed chase on
the freeway and through residential and business districts—after
the allegedly unlawful stop. Because of Lorenzo’s intervening
illegal conduct, a motion to suppress challenging the initial stop
would have been futile. See State v. Kelley, 2000 UT 41, ¶ 26,
1 P.3d 546. Accordingly, Lorenzo’s ineffective-assistance-of-
counsel challenge fails.

CONCLUSION

¶23 For the foregoing reasons, Lorenzo’s convictions are
affirmed.

20140152-CA 10 2015 UT App 189