State v. Barriga

2019 UT App 178
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JOEL S ANCHEZ B ARRIGA ,
Appellant.
Opinion
No. 20180188-CA
Filed November 7, 2019
Second District Court, Ogden Department
The Honorable Noel S. Hyde
No. 171901795
Emily Adams and Cherise M. Bacalski, Attorneys
for Appellant
Sean D. Reyes and Thomas Brunker, Attorneys
for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. O RME and DIANA HAGEN concurred.
HARRIS, Judge:
¶1 	A 	jury 	convicted 	Joel 	Sanchez 	Barriga 	of 	failure 	to
respond to an officer’s signal to stop. Barriga appeals that
conviction, 	asserting 	that 	his 	trial 	counsel 	rendered
constitutionally 	ineffective 	assistance 	by 	failing 	to 	object 	to
certain evidence. We affirm.

State v. Barriga
20180188-CA 	2 	2019 UT App 178
BACKGROUND1
¶2 	One 	evening, 	at 	approximately 	10:00 	p.m., 	a 	police
detective (Detective) and an agent (Agent) from Adult Probation
and Parole were conducting routine surveillance of a townhouse
complex when they noticed a black car that signaled to turn into
the complex, but stopped in the middle of the road for a few
seconds, and then straightened its course and continued driving.
Their curiosity piqued, the officers decided to follow the car.
¶3 	While following and observing the car, Agent ran the
license plate and discovered that the car was not insured. At that
point, the officers decided to initiate a traffic stop, and activated
their red and blue lights. Instead of pulling over and coming to a
complete stop, however, the car accelerated and sped off. The
officers gave chase, with Detective driving and Agent in the
passenger seat. Eventually, the officers were able to catch up to
the vehicle and pull alongside it, with both cars still moving
down the road at significant speed. While the cars were traveling
alongside each other, Agent looked over at the black car and
immediately recognized the driver of the vehicle as Barriga.
¶4 	Agent was familiar with Barriga, and able to identify him
so quickly, because Barriga was on parole, and Agent had been
assigned to supervise Barriga for two-and-a-half years. This
supervision included “dozens” of interactions, both at Agent’s
office and at Barriga’s home; indeed, by coincidence, Agent and
Detective had attempted to visit Barriga at his home earlier that
same day, but he was not there. Through those interactions,
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. Reigelsperger, 2017 UT App 101,
¶ 2 n.1, 400 P.3d 1127 (quotation simplified).

State v. Barriga
20180188-CA 	3 	2019 UT App 178
Agent 	had 	become 	familiar 	with 	Barriga’s 	facial 	features,
including 	a 	star 	tattoo 	under 	his 	eye. 	Agent 	testified 	that,
although it was dark outside when they pulled alongside the
black 	car, 	the 	street 	was 	“well 	lit” 	and 	dashboard 	lights
illuminated Barriga’s face, allowing Agent to see, among other
things, that the driver of the black car had a star tattoo under his
left eye. Agent testified that he was able to identify Barriga
“without a problem.”
¶5 	After identifying Barriga as the driver of the black car, the
officers backed off, hoping to mitigate the danger of a high-
speed 	chase 	and 	encourage 	Barriga 	to 	slow 	down. 	They
continued to follow the car for a while, but Barriga did not slow
down. To the contrary, he continued to drive at a high speed and
turned off his headlights, eventually shaking the officers’ tail.
The officers contacted dispatch and attempted to locate the black
car, but were unsuccessful, even after making another trip to
Barriga’s residence to see if the car was there. Agent then
proceeded to obtain an arrest warrant for Barriga.
¶6 	The following week, the same officers responded to a call
that Barriga was at the Northern Utah Community Correctional
Center, a probation facility. Upon arrival, they spotted the same
black car, with the same license plate, in the parking lot, and
they found Barriga inside the building. Detective told Barriga he
was under arrest for fleeing, but Barriga claimed to have no idea
what 	Detective 	was 	talking 	about. 	Detective 	explained 	that
Barriga fled from the officers in the same car that was parked in
the 	parking 	lot, 	but 	Barriga 	denied 	any 	involvement. 	A
subsequent search of Barriga revealed a car key in his pocket;
officers later used that same key to unlock and start the black
car. Barriga initially insisted he was not the one driving the car
“that 	night,” 	claiming 	that 	he 	had 	been 	at 	home. 	When
confronted with the fact that Detective and Agent visited his
home that night and he was not there, Barriga then claimed that
he was out that night due to an emergency.

State v. Barriga
20180188-CA 	4 	2019 UT App 178
¶7 	The State charged Barriga with one count of failure to
respond to an officer’s signal to stop. Barriga defended the case
primarily on the theory that he had not been the individual in
the black car on the night in question. Prior to trial, the State
moved, pursuant to rule 404(b) of the Utah Rules of Evidence, to
admit 	evidence 	of 	Barriga’s 	status 	as 	a 	parolee. 	The 	State
asserted that this evidence was necessary to prove identity—that
Barriga was indeed the person driving the black car. The State
argued that, without that evidence, it would be hard to explain
to a jury how Agent could possibly have identified Barriga so
quickly, 	while 	moving 	at 	high 	speeds 	at 	night. 	Barriga’s
response to the motion, if any, is not contained in the appellate
record, and the trial court made no ruling on the State’s motion.
¶8 	At 	trial, 	the 	State 	called 	two 	witnesses: 	Agent 	and
Detective. Without objection from Barriga, the State asked Agent
how he knew Barriga and how he was able to identify him so
quickly, and Agent explained that Barriga was on parole and
that he had been supervising him. Similar questions were put to
Detective, again without objection from Barriga. And during
closing argument, the prosecutor argued that Agent “knows
[Barriga] well, has supervised him for two-and-a-half years,
[and] has had dozens of encounters with him, both in his office
and at [Barriga’s] home.” After deliberation, the jury found
Barriga guilty.
ISSUE AND STANDARD OF REVIEW
¶9 	Barriga now appeals from the jury’s verdict, and asks us
to reverse his conviction due to ineffective assistance of counsel.
“When a claim of ineffective assistance of counsel is raised for
the first time on appeal, there is no lower court ruling to review
and we must decide whether the defendant was deprived of the
effective assistance of counsel as a matter of law.” Layton City v.
Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified).

State v. Barriga
20180188-CA 	5 	2019 UT App 178
ANALYSIS
¶10 	Barriga contends that trial counsel rendered ineffective
assistance by failing to object to the admission of evidence
regarding 	his 	parole 	status. 	Barriga 	contends 	that, 	through
admission of this evidence, the jury heard—multiple times—that
he was on parole, and that the jury therefore must have inferred
that he had committed crimes in the past. He contends that this
evidence should not have been admitted, and that if it had not
been 	admitted, 	he 	would 	have 	received 	a 	more 	favorable
outcome at trial.
¶11 	In order to establish that his attorney provided ineffective
assistance, Barriga must make a two-part showing: (1) that his
attorney’s “performance was deficient in that it fell below an
objective standard of reasonableness,” and (2) that his attorney’s
deficient performance was “prejudicial,” meaning that “there is
a reasonable probability that but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
State v. Miller, 2012 UT App 172, ¶ 9, 281 P.3d 282 (quotation
simplified); see also Strickland v. Washington, 466 U.S. 668, 687
(1984). Defendants claiming ineffective assistance are required
“to affirmatively prove both prongs of the Strickland test to
prevail.” State v. Ellis, 2014 UT App 185, ¶ 14, 336 P.3d 26
(quotation simplified). “As a result, it is not necessary for us to
address both components of the inquiry if we determine that a
defendant 	has 	made 	an 	insufficient 	showing 	on 	one.” 	Id.
(quotation simplified).
¶12 	To satisfy the first part of the Strickland test, a defendant
challenging 	counsel’s 	decision-making 	must 	overcome 	the
“strong presumption” that those decisions were made within the
“wide range” of reasonable assistance. Strickland, 466 U.S. at 689.
Given the “countless ways to provide effective assistance in any
given case,” we review counsel’s performance in a manner that
is “highly deferential.” Id. Thus, “the relevant question is not

State v. Barriga
20180188-CA 	6 	2019 UT App 178
whether counsel’s choices were strategic, but whether they were
reasonable,” which can include “a reasonable miscalculation.”
Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000); accord Harrington v.
Richter, 	562 	U.S. 	86, 	110 	(2011). 	In 	essence, 	Barriga 	must
demonstrate that there was “no conceivable tactical basis” for his
counsel’s decisions, State v. Clark, 2004 UT 25, ¶ 7, 89 P.3d 162
(quotation simplified), or, put differently, that “no reasonable
attorney” would have chosen the course that trial counsel took,
State v. Roberts, 2019 UT App 9, ¶ 29, 438 P.3d 885 (quotation
simplified). Furthermore, “[f]ailure to raise futile objections does
not constitute ineffective assistance of counsel.” State v. Kelley,
2000 UT 41, ¶ 26, 1 P.3d 546. In our view, Barriga cannot meet
the first Strickland element, because any objection to admission of
Barriga’s 	parole 	status 	would 	have 	been 	overruled, 	and 	it
therefore would have been futile for Barriga’s counsel to have
raised such an objection.
¶13 	In order to win admission of evidence pursuant to rule
404(b), the proponent of the evidence (here, the State) must make
a three-part showing. First, the “evidence of prior bad acts must
be relevant.” State v. Lucero, 2014 UT 15, ¶ 13, 328 P.3d 841,
abrogated on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d
1016. Second, the evidence of prior bad acts must be “offered for
a genuine, noncharacter purpose.” Id. Third, “the probative
value of the evidence must not be substantially outweighed by
the danger of unfair prejudice.” Id. The rule 404(b) evidence at
issue here clearly satisfies this test.
¶14 	First, the evidence was relevant. Evidence is relevant if it
has “any tendency” to make a consequential fact “more or less
probable than it would be without the evidence” Utah R. Evid.
401. Our supreme court has observed that rule 401 presents “a
low bar” to admission of evidence. See Thornton, 2017 UT 9, ¶ 61.
In this case, evidence of Barriga’s parole status was clearly
relevant, because it helped explain how Agent could identify
him so quickly under the circumstances.

State v. Barriga
20180188-CA 	7 	2019 UT App 178
¶15 	Second, 	as 	Barriga 	wisely 	concedes 	on 	appeal, 	the
evidence was admitted for a proper, noncharacter purpose—
establishing Barriga’s identity. While evidence of a past crime is
not admissible to prove a person’s character, Utah R. Evid
404(b)(1), the same evidence “may be admissible for another
purpose, such as proving . . . identity,” id. R. 404(b)(2). Barriga’s
primary defense theory at trial was that Agent had mistakenly
identified him as the driver of the car. Accordingly, whether
Agent could indeed identify Barriga so quickly, and at night,
was the central issue in the case, and one that the State needed to
prove beyond a reasonable doubt. Had identity not been at issue
at trial—for instance, if Barriga had stipulated that he was the
driver of the black car—there may not have been a valid non-
character purpose for introducing Barriga’s parole status. See
State v. Verde, 2012 UT 60, ¶¶ 25–27, 296 P.3d 673 (holding that
the State could not use rule 404(b) evidence for the purpose of
proving “intent” because the defendant did not contest intent at
trial and offered to stipulate to intent), abrogated on other grounds
by Thornton, 2017 UT 9. But by choosing to make identity the
centerpiece of his defense, Barriga placed identity at issue.
¶16 	Third, 	the 	probative 	value 	of 	the 	evidence 	was 	not
substantially outweighed by the risk of unfair prejudice. See
Utah R. Evid. 403. “Unfair prejudice within the context of rule
403 	means 	an 	undue 	tendency 	to 	suggest 	decision 	on 	an
improper basis.” State v. Burke, 2011 UT App 168, ¶ 34, 256 P.3d
1102 (quotation simplified). “All effective evidence is prejudicial
in the sense of being damaging to the party against whom it is
offered.” 	State 	v. 	Killpack, 	2008 	UT 	49, 	¶ 	53, 	191 	P.3d 	17
(quotation simplified). Rule 403 “only requires that the trial
court measure the danger the evidence poses of causing unfair
prejudice to a defendant.” Id. (quotation simplified).
¶17 	In this case, the probative value of the proffered evidence
was 	quite 	high. 	Agent’s 	testimony 	was 	the 	best 	evidence
addressing the central issue at trial—the identity of the driver of

State v. Barriga
20180188-CA 	8 	2019 UT App 178
the black car. And evidence of Barriga’s parole status, and his
corresponding relationship with Agent as his parole officer, was
critical to Agent’s explanation as to how he was able to identify
Barriga in only two to three seconds, in the dark, while driving
at a high speed alongside his vehicle. Without this context, such
an identification might in fact be rather unlikely; indeed, it is
precisely because of the relationship between the two that Agent’s
quick 	recognition 	of 	Barriga 	holds weight. 	Because 	of 	this,
Barriga’s parole status constitutes an important piece of the
evidentiary picture and is of high probative value.
¶18 	Conversely, Barriga alleges as unfair prejudice only the
possibility that the jury “might already consider him to be part
of the criminal class.” This is insufficient to establish that the
evidence’s high probative value is substantially outweighed by
the risk of unfair prejudice. “[E]vidence of past crimes may be
admissible to help establish identity.” State v. Fairchild, 2016 UT
App 205, ¶ 18, 385 P.3d 696. Moreover, in certain situations
“limited 	allusions” 	of 	parole 	status 	may 	be 	“necessary 	as
context.” State v. Dominguez, 2003 UT App 158, ¶ 28, 72 P.3d 127
(quotation simplified). We readily conclude that such a situation
is presented here.
¶19 	Because 	evidence 	is 	generally 	permitted 	unless 	its
probative value is substantially outweighed by the danger of
unfair prejudice, see Utah R. Evid. 403, we agree with the State
that any objection to witnesses testifying that Barriga was on
parole would have been overruled. The evidence had strong
probative value because it had a high tendency to establish
Barriga’s identity as the driver of the car. This value was not
outweighed by the potential prejudicial impact of suggesting to
the 	jury 	that 	Barriga 	had 	a 	criminal 	past. 	Although 	not
completely eliminated, the danger of unfair prejudice to Barriga
was minimized in two key ways. First, Barriga’s parole status
was mentioned only in the context of his relationship as a
parolee to Agent, the man who identified him as the driver of

State v. Barriga
20180188-CA 	9 	2019 UT App 178
the black car. See State v. Moody, 2012 UT App 297, ¶ 11, 288 P.3d
1092. Second, the crime underlying Barriga’s parole status was
never identified. See id. Under the circumstances presented here,
we conclude that the probative value of the evidence was not
substantially outweighed by the risk of unfair prejudice.
¶20 	In sum, Barriga’s counsel did not perform deficiently by
failing to object to evidence of his parole status, because such an
objection would have been overruled. Accordingly, it is not only
conceivable that a competent attorney would fail to object, but
probable that counsel “made a deliberate and wise tactical
choice” by declining to do so. See State v. Colonna, 766 P.2d 1062,
1067 	(Utah 	1988). 	Accordingly, 	Barriga 	has 	not 	carried 	his
burden 	of 	demonstrating 	that 	his 	attorney 	rendered
constitutionally ineffective assistance.
CONCLUSION
¶21 	Because 	Barriga 	has 	failed 	to 	prove 	that his 	counsel
performed 	deficiently, 	his 	claim 	of 	ineffective 	assistance 	of
counsel 	necessarily 	fails. 	Accordingly, 	we 	affirm 	Barriga’s
conviction.