State v. Flores

2015 UT App 164

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
GERBER FLORES,
Defendant and Appellant.

Memorandum Decision
No. 20131103-CA
Filed June 25, 2015

Eighth District Court, Vernal Department
The Honorable Clark A. McClellan
No. 131800025

Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and
STEPHEN L. ROTH concurred.

VOROS, Judge:

¶1 A jury convicted Gerber Flores of aggravated burglary,
aggravated kidnapping, three counts of child kidnapping, and
five counts of aggravated sexual assault, all first degree felonies.
The jury also convicted Flores of attempted forcible sodomy, a
second degree felony, and three counts of domestic violence in
the presence of a child, class B misdemeanors. Flores appeals the
three child kidnapping convictions. We affirm.

¶2 ‚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). Here, for approximately thirty-six
hours in December 2012—from Thursday evening until Saturday
State v. Flores

morning—Flores detained a mother (Mother) and her children in
Mother’s apartment.

¶3 At trial, Mother testified that she had three children. At
the time of the incident, Mother’s children were approximately
eight years old (Older Son), seven years old (Daughter), and four
years old (Younger Son). Mother also testified that she had been
in a relationship with Flores beginning in September 2012 but
that she had ended it. On the same day that Mother ended the
relationship, Flores returned and gained entry to her apartment.
Mother explained, ‚We’re just getting ready for bed. We’re all
upstairs, just getting everything ready just to go to bed.‛ Then
she ‚heard somebody coming up the stairs‛ and saw Flores. He
barricaded himself and Mother in her bedroom.

¶4 Over the next thirty-six hours Flores repeatedly sexually
and physically assaulted Mother. Mother testified that on the
first night of the thiry-six-hour ordeal, Flores wanted to argue
about their relationship. The prosecutor asked Mother, ‚[D]o
you know what your children are doing at this point?‛ Mother
responded, ‚They were in bed. So I was trying to tell [Flores],
you know, ‘Keep it down. They are sleeping.’‛

¶5 On Friday morning Flores still had Mother barricaded
with him in her room. Mother pleaded with him to let her out so
that she could feed her children, saying, ‚I need to go feed my
children,‛ ‚I hear them downstairs. They’re hungry.‛ Mother
explained that she told Flores several times that she wanted to
leave ‚because [she] needed to go to [her] children to herd them
up.‛ Crying, she implored him, ‚You know, you might be mad
at me, but you should not do this to my kids.‛ Flores relented
and let her go downstairs to feed her children, but he followed
and ‚actually stood guard‛ to make sure she did not leave. He
then forced her back upstairs; Mother complied because she ‚did
not want [her] children to see him get violent again.‛

¶6 Later that day, while Flores showered, Mother tried to
gather up shoes for herself and her children so they could leave.

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State v. Flores

When asked if she intended ‚to take [her] children with [her],‛
she replied, ‚Take my children. That’s why I was trying to get all
our shoes, because this is winter.‛ But Flores got out of the
shower and prevented Mother from leaving.

¶7 On Saturday morning, while Flores was still in bed,
Mother went downstairs and ‚told [her] kids, . . . ‘We’re going to
get ready. We’re going to go to the store.’‛ Mother then went
back upstairs and told Flores that he needed to leave. Flores
responded by throwing Mother onto the bed. Older Son, who by
this time ‚had had enough,‛ approached Flores with a knife.
Mother took the knife away from Older Son, and Flores grabbed
a utility knife and ‚ran after all [of Mother’s] children with [it].‛

¶8 The jury also heard recorded interviews of Older Son and
Daughter. Older Son stated that Flores trapped Mother in her
bedroom, that Flores had a utility knife in the bedroom, and that
Flores told him that if Mother ‚told us to call the police or [if] we
were outside, he would come out and slit our throats and then
he would throw us into the hole in the wall.‛ Older Son further
explained that Flores kept ‚threatening me that he was going to
kill all of us if I dared to go outside.‛

¶9 At the close of the State’s evidence, Flores moved for a
directed verdict. Specifically, Flores asked ‚for a directed verdict
on at least two of the counts of kidnapping. [Younger Son] was
very—was hardly mentioned at all . . . and then I’m going to ask
also with regards to [Daughter].‛ Flores argued that ‚there’s no
evidence whatsoever of actually where [Younger Son] was at all
during the whole time.‛ But then he went on to say, ‚I think . . .
[M]other said at one time that [Younger Son] was in the house.‛
Flores acknowledged that he did not seek a directed verdict with
respect to Older Son but argued that the threats he made to
Older Son did not prove he intended to detain Younger Son and
Daughter also. The trial court denied the motion on the ground
that ‚the jury could believe . . . [M]other was restrained to the
bedroom, and that the three children were downstairs for the
most part,‛ and ‚that at this stage of the proceeding there is

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State v. Flores

sufficient evidence to go forward on all counts on all three
children.‛

¶10 On appeal, Flores contends that the trial court erred in
denying his request for a directed verdict on the three child
kidnapping counts. Flores raises two arguments in support of
this contention. First, he argues that the State presented no
evidence that Younger Son was even present during the
incident. Second, he argues that the State presented insufficient
evidence to prove that Flores kidnapped the three children
independently from the kidnapping of Mother.

¶11 ‚We review a trial court’s ruling on a motion for directed
verdict for correctness.‛ State v. Gonzalez, 2015 UT 10, ¶ 21, 345
P.3d 1168. When a trial court denies a motion for a directed
verdict based on a claim of insufficient evidence, ‚[t]he evidence
is to be viewed in the light most favorable to the [S]tate.‛ State v.
Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183. ‚[W]e will uphold the
trial court’s decision if, upon reviewing the evidence and all
inferences that can be reasonably 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.‛ Id. (citation and internal quotation marks
omitted).

¶12 Flores first contends that the trial court erred in denying
his request for a directed verdict with respect to the kidnapping
of Younger Son. Flores argues that during trial ‚no particulars
were provided‛ as to Younger Son and that ‚it constitutes an
unreasonable inference to conclude‛ that Flores kidnapped
Younger Son ‚when there is not a scintilla of evidence that
[Younger Son] was even present during the incident.‛ The State
responds that Flores did not preserve his argument at trial and
on appeal does not argue any exception to the preservation
requirement.

¶13 ‚As a general rule, claims not raised before the trial court
may not be raised on appeal.‛ State v. Holgate, 2000 UT 74, ¶ 11,

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State v. Flores

10 P.3d 346. ‚When a party fails to present an issue to the [trial]
court, and instead raises the issue for the first time on appeal, we
require that the party articulate an appropriate justification for
appellate review.‛ State v. Moa, 2012 UT 28, ¶ 24, 282 P.3d 985
(citation and internal quotation marks omitted). Appropriate
justifications for appellate review include plain error,
exceptional circumstances, and ineffective assistance of counsel.
Oseguera v. State, 2014 UT 31, ¶ 15, 332 P.3d 963. ‚Under the
invited error doctrine, however, we have declined to engage in
plain error review when counsel made an affirmative statement
that led the court to commit the error.‛ Moa, 2012 UT 28, ¶ 24.

¶14 In this case, Flores invited any error the trial court made
in denying his request for a directed verdict with respect to
Younger Son. In the course of arguing the motion, Flores
asserted that ‚there’s no evidence whatsoever of actually where
[Younger Son] was at all during the whole time.‛ But later in the
same discussion he backed off of this assertion, acknowledging,
‚I think . . . [M]other said at one time [Younger Son] was in the
house.‛ Thus, Flores led the trial court to believe that some
evidence existed from which a jury could reasonably infer that
Younger Son was present during the incident. Accordingly,
Flores invited any possible error on the part of the trial court in
not directing a verdict on the basis that no evidence showed
Younger Son’s presence during the crime.

¶15 Flores next contends that the trial court erred in denying
his request for a directed verdict as to all the children. Flores
argues that the State presented insufficient evidence to prove
that he ‚seized, confined, detained, or transported‛ Younger Son
without consent. And he argues that no evidence showed that
Older Son or Daughter ‚were locked in‛ during the incident. On
the contrary, he maintains that while he detained Mother in the
bedroom, the children ‚were left to the rest of the house, and at
liberty to move as they wished.‛

¶16 The State responds that Flores did not preserve his
argument with respect to Older Son. We agree. When Flores

20131103-CA 5 2015 UT App 164
State v. Flores

requested a directed verdict, he did so only with respect to
Younger Son and Daughter, clarifying that his request did not
include Older Son, specifically stating, ‚I’m not asking for him.‛
Because Flores did not preserve his sufficiency challenge with
respect to the kidnapping of Older Son, and because he does not
‚articulate an appropriate justification‛ for reviewing his
unpreserved claim, Moa, 2012 UT 28, ¶ 24, we decline to address
it, Holgate, 2000 UT 74, ¶ 11. Flores did, however, preserve his
sufficiency challenge with respect to the kidnapping of Daughter
and Younger Son.

¶17 A person is guilty of child kidnapping if he or she
‚intentionally or knowingly, without authority of law, and by
any means and in any manner, seizes, confines, detains, or
transports a child under the age of 14 without the consent of the
victim’s parent.‛ Utah Code Ann. § 76-5-301.1 (LexisNexis 2012).

¶18 Here, Older Son stated that Flores threatened to kill ‚all of
us‛ if any of the children dared to go outside. Older Son also
stated that Flores threatened to ‚slit our throats‛ if the children
called the police or went outside. Mother testified that at one
point during the ordeal Flores grabbed a utility knife and chased
‚all of [her] children‛ with it. Viewing this evidence and all
reasonable inferences drawn from it in the light most favorable
to the State, we conclude that sufficient evidence ‚exists from
which a reasonable jury could find . . . beyond a reasonable
doubt‛ that Flores kidnapped Daughter and Younger Son. See
State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (citation and
internal quotation marks omitted).

¶19 True, no evidence establishes that Flores physically
detained any of the children in the same way he physically
detained Mother. But under our statute, the confinement or
detention of a child under fourteen may be accomplished ‚by
any means and in any manner.‛ Utah Code Ann. § 76-5-301.1.
Thus, our supreme court has opined in dicta that a kidnapping
may occur where a child is ‚lured away by a deceptive promise
and without the consent of the child’s parent or guardian.‛ State

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State v. Flores

v. Strunk, 846 P.2d 1297, 1300 (Utah 1993). Further, given the
inclusive scope of the statutory text, we agree with the Missouri
Court of Appeals that ‚[i]t is not necessary that actual violence
occur for a kidnapping to be committed. Appeals to fear, such as
a threat to kill or do bodily harm[,] are sufficient.‛ State v. Van
Vleck, 805 S.W.2d 297, 299 (Mo. Ct. App. 1991) (citation omitted).
We readily conclude that confining or detaining a child ‚by any
means and in any manner‛ may include threatening the child
with physical harm. See Utah Code Ann. § 76-5-301.1. Here,
Flores confined or detained all three of Mother’s children when
he threatened to slit their throats if any of them went outside.

¶20 In sum, because Flores failed to preserve his sufficiency
challenge as to Older Son, and articulated no exception to the
preservation requirement, we decline to review his unpreserved
claim. In addition, the trial court committed no error in denying
Flores’s motion for a directed verdict with respect to his
kidnapping of Daughter and Younger Son.

¶21 We accordingly affirm Flores’s three child kidnapping
convictions.

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