State v. Aponte

2016 UT App 248
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
S ANTIAGO A VILA A PONTE,
Appellant.
Memorandum Decision
No. 20150154-CA
Filed December 22, 2016
Fourth District Court, Provo Department
The Honorable Samuel D. McVey
No. 141400333
Jennifer Gowans Vandenberg and Emily Adams,
Attorneys for Appellant
Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee
JUDGE GREGORY K. O RME authored this Memorandum Decision,
in which J UDGES M ICHELE M. C HRISTIANSEN and DAVID N.
M ORTENSEN concurred.
ORME, Judge:
¶1 	Santiago 	Avila 	Aponte 	(Defendant) 	appeals 	his
convictions for failure to respond to an officer’s signal to stop, a
third degree felony, see Utah Code Ann. § 41-6a-210 (LexisNexis
2010); failure to stop at an accident involving injury, a class A
misdemeanor, see id. § 41-6a-401.3; reckless driving, a class B
misdemeanor, see id. § 41-6a-528; and driving on a suspended or
revoked operator’s license, a class C misdemeanor, see id. § 53-3-
227. Defendant challenges his convictions, arguing that the trial
court erroneously admitted eyewitness and character evidence.
We affirm.

State v. Aponte
20150154-CA 	2 	2016 UT App 248
¶2 	One evening in August 2013, a police officer attempted to
pull over a Chevrolet Impala, which had been reported as
stolen.1 The driver did not slow down but instead accelerated
and attempted to evade the officer. After the driver ignored a
stop sign, sped through a busy intersection, and reached speeds
of over seventy-five miles per hour—forty miles per hour over
the posted speed limit—the officer abandoned his pursuit in the
interest of public safety.
¶3 	Shortly thereafter, the officer received a report that the
Impala had crashed at a nearby, well-lit gas station. Witnesses
reported that the car hit a curb, soared through the air, and
crashed into a cement column that protected a series of gas
pumps. The driver wrestled with the airbag, and because his
door 	was 	damaged 	in 	the 	crash, 	climbed 	out 	through 	his
window “Dukes of Hazzard style,” as one witness put it. He
then fled on foot, scaling an eight-foot fence in the process.
¶4 	An injured passenger remained inside the Impala. She
identified Defendant, by name, as the driver of the Impala and
described 	him. 	Using 	that 	information, 	officers 	retrieved 	a
digital photograph of Defendant from an online source. Officers
showed the photograph to two witnesses of the crash, and both
confirmed the passenger’s identification of Defendant.2
¶5 	Defendant was eventually caught, arrested, and charged
with multiple offenses. Before trial, Defendant filed a motion to
1. “On appeal, we recite the facts in the light most favorable to
the jury’s verdict.” State v. Martinez, 2013 UT App 154, ¶ 2 n.1,
304 P.3d 110 (citation and internal quotation marks omitted).
2. Ten months later, officers created a photo array that contained
photographs 	of 	five 	other 	individuals 	and 	a 	different
photograph 	of 	Defendant. 	Both 	witnesses 	again 	confirmed
Defendant as the driver.

State v. Aponte
20150154-CA 	3 	2016 UT App 248
suppress, 	challenging 	the 	reliability 	of 	the 	eyewitness
identifications. Following a suppression hearing, the trial court
denied Defendant’s motion. Later, the State filed notice of its
intent to introduce two of Defendant’s other convictions into
evidence, both of which involved fleeing from pursuing police
officers.3 Following oral argument, the trial court ruled that the
evidence was admissible under the doctrine of chances and to
show intent, knowledge, and absence of mistake.4
¶6 	Defendant did not appear for his trial as scheduled. He
was, however, tried in absentia. After hearing testimony from
the passenger, both eyewitnesses, and the pursuing officer, as
well as evidence of Defendant’s two other attempts to flee from
the police 	and 	his resulting convictions, 	the jury convicted
Defendant on the counts set forth in the first paragraph of this
decision. See supra ¶ 1. The trial court sentenced Defendant to
prison. Defendant appeals the admission of the eyewitnesses’
testimony and the evidence of his prior convictions.
3. In September 2012, an officer attempted to stop Defendant for
driving eighty miles per hour in a forty-mile-per-hour zone. But
Defendant did not stop after the officer activated his lights and
sirens. Instead, Defendant ran two red lights and a stop sign. He
eventually crashed and attempted to flee on foot. In October
2013, 	two 	months 	after 	the 	crash 	in 	this 	case, 	an 	officer
approached Defendant’s vehicle to inquire about an assault.
Defendant rolled up his window and sped off. The officer
terminated that pursuit for the public’s safety. By the time of
trial in this case, Defendant had pled no contest to reckless
driving, speeding, DUI, and two counts of attempted failure to
respond to an officer’s signal to stop.
4. At trial, the court instructed the jury that it could not consider
the evidence “to prove the character trait of the defendant or to
show that he acted in a manner consistent with such a trait.”

State v. Aponte
20150154-CA 	4 	2016 UT App 248
I. Eyewitness Testimony
¶7 	Defendant argues that the trial court violated his due
process 	rights 	by 	admitting 	“unnecessarily 	suggestive”
eyewitness 	identification 	evidence.5 	Whether 	eyewitness
identification evidence is reliable is “a question of law, which we
review for correctness.” State v. Hubbard, 2002 UT 45, ¶ 22, 48
P.3d 953. “We apply this same standard of review to both the
federal and the state analyses.” Id.
¶8 	The United States Supreme Court has recognized “a due
process check on the admission of eyewitness identification,
applicable 	when 	the 	police 	have 	arranged 	suggestive
circumstances leading the witness to identify a particular person
as the perpetrator of a crime.” Perry v. New Hampshire, 565 U.S.
228, 232 (2012). The admissibility of traditional identification
testimony under the United States Constitution requires a two-
step inquiry. See Neil v. Biggers, 409 U.S. 188, 196–99 (1972).
¶9 	The court first determines whether the identification was
the 	product 	of 	“unnecessarily 	suggestive” 	law 	enforcement
procedures. Perry, 565 U.S. at 239–40. If identification procedures
were neither “suggestive [nor] unnecessary,” due process has
not been violated. Id. at 238–39. But if the identification process
involved “unnecessarily suggestive” conduct, we proceed to the
second step and 	must determine, under the totality of the
circumstances, whether the identification was reliable. See Neil,
409 U.S. at 199.
5. Defendant asserts his due process rights under only the
United 	States 	Constitution, 	despite 	the 	Utah 	Constitution
requiring 	“a 	more 	stringent 	standard 	in 	making 	reliability
determinations than that employed in the federal system.” State
v. Lujan, 2015 UT App 199, ¶ 10, 357 P.3d 20, cert. granted, 364
P.3d 48 (Utah 2015).

State v. Aponte
20150154-CA 	5 	2016 UT App 248
¶10 	The parties debate the criteria—both federal and state—
that apply to the eyewitness identification evidence in this case.6
Both lines of jurisprudence, as far as we can tell, involve cases in
which officers allegedly employed suggestive techniques in the
course 	of 	the 	initial 	identification 	of 	a 	suspect. 	Suggestive
circumstances with the initial identifier are problematic because
they increase “the likelihood of misidentification.” Id. at 198, 201.
Indeed, it is the likelihood of misidentification that implicates a
defendant’s right to due process. Id. at 198.
¶11 	But 	this 	case 	does 	not 	implicate 	the 	paradigmatic
concerns about misidentification. Rather, needing to apprehend
a 	fugitive, 	and 	hoping 	to 	dispel 	any 	possibility 	that 	the
passenger’s 	identification 	of 	the 	driver 	was 	deliberately
misleading 	or 	otherwise 	inaccurate, 	the 	officers 	used 	the
photograph only for the limited purpose of confirming the
accuracy of an identification already made by someone who
should have known the driver’s identity, but who also may have
had a motive to misstate his identity to protect him. In essence,
the 	uninvolved 	eyewitnesses 	were 	performing 	a 	merely
confirmatory role. The passenger knew Defendant and provided
officers with Defendant’s name and an accurate description of
him.7 Ancillary efforts that the officers took to allay any concern
6. Contrary to our observation in footnote 5, the State maintains
that the Due Process Clause of the Utah Constitution parallels
the two-step inquiry of the United States Constitution. Because
Defendant has not asserted that his state constitutional rights
were violated, we have no occasion to consider the issue. In any
event, the Utah Supreme Court has granted certiorari in the
Lujan case, and this question may be answered in the course of
its resolution. See State v. Lujan, 2015 UT App 199, 357 P.3d 20,
cert. granted, 364 P.3d 48 (Utah 2015).
7. At trial, the passenger testified that, at the time of the crash,
she had been friends with Defendant for a “couple months.”

State v. Aponte
20150154-CA 	6 	2016 UT App 248
that the passenger was not forthright in her report do not
undermine the reliability of the passenger’s initial identification.8
¶12 	Defendant has not pointed us to any judicial decision that
involves facts like 	these 	but 	that 	requires 	the 	confirmatory
identifications made by other witnesses, after a suspect has
already been reliably identified, to pass the rigors of due process
analysis as though no such prior identification had been made.9
8. Defendant 	asserts 	that 	the 	passenger 	was 	not 	a 	reliable
witness. 	In 	support, 	he 	points 	to 	her 	prior 	convictions—
including one for giving false information to a police officer—
and the perception that she was under the influence of an
unspecified narcotic when she identified Defendant. At the time
of the passenger’s trial testimony, however, she had already pled
guilty to possession charges stemming from the same incident.
She received nothing in exchange for her testimony. And at the
time 	she 	identified 	Defendant 	at 	the 	scene, 	most 	of 	those
credibility issues would not have been known to police. Had
they been known, of course, it would only further validate the
officers’ intuition to corroborate the passenger’s report as to the
driver’s identity by checking with other witnesses.
9. After oral argument, Defendant submitted a letter with, inter
alia, citations to three cases “where the eyewitness was shown a
single photo of the defendant to confirm the identity of the
defendant 	rather 	than 	to 	discover 	it.” 	These 	cases 	do 	not,
however, parallel the unique reliability of the identification that
occurred here. In each of the three cases, an initial witness
described a suspect to an officer, who then furnished a picture of a
particular individual, and the initial witnesses then “confirmed”
the identification from a single photo of the suspect. See Manson
v. Brathwaite, 432 U.S. 98, 101 (1977); Wicks v. Lockhart, 569 F.
Supp. 549, 554 (E.D. Ark. 1983); United States v. Brady, No. 3:13-
CR-23-06, 2013 WL 5674848, at *2–3 (N.D. W. Va. Oct. 17, 2013).
In each of these cases, the eyewitness who confirmed the identity
(continued…)

State v. Aponte
20150154-CA 	7 	2016 UT App 248
Because an acquaintance of Defendant made the identification
independent from any photograph, and because two witnesses
merely 	confirmed 	that 	initial 	identification 	when 	shown 	a
photograph, we conclude that the identification was not “so
impermissibly suggestive as to give rise to a very substantial
likelihood 	of 	irreparable 	misidentification.” 	See 	Simmons 	v.
United States, 390 U.S. 377, 384 (1968). Accordingly, under the
totality of the circumstances, the identifications—especially the
passenger’s, 	which 	was 	based 	on 	her 	personal 	knowledge
untainted by the suggestion of a photo—were reliable, and the
trial 	court 	did 	not 	abuse 	its 	discretion 	in 	admitting 	the
identifications into evidence.
II. Prior Conviction Evidence
¶13 	Defendant also complains that the jury “was not apprised
of 	the 	legal 	meanings” 	of 	the 	noncharacter 	purposes 	for
submitting prior conviction evidence in the limiting instruction
(…continued)
of the suspect was also the initial identifier. In such a situation,
the danger of misidentification is high because, upon seeing a
single photograph more or less matching the description given,
witnesses often make positive identifications. See Simmons v.
United States, 390 U.S. 377, 383 (1968). Reliability is further
undermined if a witness “obtained only a brief glimpse of a
criminal, or [saw] him under poor conditions.” Id. In contrast,
the initial identifier here was an acquaintance of Defendant,
whose 	initial 	identification 	of 	Defendant 	was 	entirely
independent of the photograph, based on her own familiarity
with Defendant. Two witnesses, both of whom had unobstructed
views 	of 	Defendant 	for 	significant 	amounts 	of 	time, 	then
confirmed the passenger’s identification. This was solid police
work, as it foreclosed the possibility that police would arrest an
innocent party, wrongly identified by the passenger, even as
Defendant disappeared into the night.

State v. Aponte
20150154-CA 	8 	2016 UT App 248
the trial court provided and that the enumerated noncharacter
purposes were not “legitimate bases for admitting the prior bad
acts evidence.”10 We conclude that these issues are not properly
before us.
¶14 	“An issue is preserved for appeal when it has been
presented to the district court in such a way that the court has an
opportunity to rule on [it].” Patterson v. Patterson, 2011 UT 68,
¶ 12, 266 P.3d 828 (alteration in original) (citation and internal
quotation marks omitted). See Utah R. App. P. 24(a)(5)(A)–(B).
The preservation rule precludes review of any unpreserved
claim “unless a defendant can demonstrate that exceptional
circumstances exist or plain error occurred.” State v. Larrabee,
2013 UT 70, ¶ 15, 321 P.3d 1136 (citation and internal quotation
marks omitted).
¶15 	Defendant’s trial counsel did not object at any point to the
limiting instruction given in contemplation of rule 404(b) of the
Utah 	Rules 	of 	Evidence. 	Nor 	did 	Defendant 	object 	to 	the
inclusion 	of 	the 	specified 	noncharacter 	purposes, 	including
knowledge, opportunity, lack of mistake or accident, and the
doctrine of chances.11 Below, Defendant’s sole objection was that
10. Defendant is mistaken in asserting that lack of mistake,
accident, knowledge, or opportunity, and the doctrine of chances
are 	not 	“legitimate 	bases 	for 	admitting 	the 	prior 	bad 	acts
evidence.” Rule 404(b) permits the admission of evidence for
almost any purpose, so long as it was not offered to show that on
a specific occasion the person acted in conformity with the
particular character trait. See Utah R. Evid. 404(b); State v. Verde,
2012 UT 60, ¶ 15, 296 P.3d 673.
11. In Defendant’s objection to the State’s notice of rule 404(b)
evidence, he conceded that the convictions were admissible to
prove 	identity. 	If 	Defendant 	believed 	this 	to 	be 	the 	only
(continued…)

State v. Aponte
20150154-CA 	9 	2016 UT App 248
the probative value of the challenged character evidence was
substantially outweighed by its unfair prejudice. While this
argument was preserved, Defendant has not raised it on appeal,
so 	we 	do 	not 	consider 	it. 	Conversely, 	Defendant’s 	jury
instruction arguments now pursued on appeal were not raised
below, 	and 	because 	he 	has 	not 	raised 	the 	plain 	error 	or
exceptional 	circumstances 	exceptions, 	we 	also 	decline 	to
consider this issue.
¶16 	Affirmed.
(…continued)
permissible noncharacter purpose, he should have tailored his
objection accordingly.