State v. Ortiz

2013 UT App 100
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
DANIEL MARTINEZ ORTIZ,
Defendant and Appellant.

Memorandum Decision
No. 20120198‐CA
Filed April 25, 2013

Second District, Ogden Department
The Honorable W. Brent West
No. 101900863

Samuel P. Newton, Attorney for Appellant
John E. Swallow and Michelle M. Young, Attorneys
for Appellee

JUDGE JAMES Z. DAVIS authored this Memorandum Decision,
in which JUDGES CAROLYN B. MCHUGH and STEPHEN L. ROTH
concurred.

DAVIS, Judge:

¶1 Daniel Martinez Ortiz appeals his conviction for aggravated
robbery, a first degree felony, see Utah Code Ann. § 76‐6‐302
(LexisNexis 2012), on the ground that he was unfairly prejudiced
by the trial court’s denial of his motion for permission to cover his
facial tattoos at trial.1 We affirm.

1. We are aware of no rule or statute requiring a defendant to
obtain permission to cover up tattoos, although there are measures
available to aid in identification that might justify requiring a
defendant to display his tattoos where the tattoos are relevant, see
(continued...)
State v. Ortiz

¶2 Ortiz asserts that the tattoos were inadmissible under rules
401, 402, and 403 of the Utah Rules of Evidence because they were
irrelevant and unfairly prejudicial. See generally Utah R. Evid. 401,
402, 403. Ortiz’s argument rests on the assumption that the tattoos
constituted evidence and that their admissibility was therefore
governed by the Utah Rules of Evidence. However, as the State
points out, Ortiz’s tattoos were not admitted or used as evidence
in this case, and their mere visibility as part of Ortiz’s general
appearance was not subject to the evidentiary limitations of rules
401, 402, and 403.

¶3 Ortiz cites a number of cases from other jurisdictions
analyzing the admissibility of tattoo evidence under evidentiary
rules. However, in each of those cases, the defendants’ tattoos were
actually used as evidence and referenced at trial. See United States
v. Smith, 348 F. App’x 636, 638–39 (2d Cir. 2009) (reviewing the
admissibility of a photograph of the defendant’s tattoo depicting a
skeleton firing a gun and the words “D’EVILS WITHIN”); United
States v. Newsom, 452 F.3d 593, 559–604 (6th Cir. 2006) (considering
prejudice resulting from the prosecution’s questioning witnesses
about the defendant’s tattoos depicting firearms and gang‐related
symbols); United States v. Thomas, 321 F.3d 627, 630–33 (7th Cir.
2003) (reviewing the admissibility of a photograph of the
defendant’s tattoo depicting two revolvers); United States v. Irvin,
87 F.3d 860, 862, 865–66 (7th Cir. 1996) (considering the prejudicial
impact of testimony describing a tattoo and its connection to a
motorcycle gang); Boliek v. Delo, 912 F. Supp. 1199, 1212–13 (W.D.
Mo. 1995) (reviewing the admissibility of testimony that the
defendant had a tattoo depicting a smoking double‐barreled
shotgun and the words “Death Dealer”), rev’d on other grounds sub

1. (...continued)
Utah R. Crim. P. 16(h) (listing activities the accused may be
required to engage in for identification purposes, such as “cut[ting]
hair or allow[ing] hair to grow to approximate appearance at the
time of the alleged offense”).

20120198‐CA 2 2013 UT App 100
State v. Ortiz

nom, Boliek v. Bowersox, 96 F.3d 1070 (8th Cir. 1996); Belmar v. State,
621 S.E.2d 441, 444–46 (Ga. 2005) (reviewing the admissibility of a
photograph of a tattoo that read “12 gauge” where the alleged
crime was committed with a 12‐gauge shotgun); Brooks v. State, 903
So. 2d 691, 699–700 (Miss. 2005) (reviewing the admissibility of
evidence connecting the defendant’s tattoo to gang activity); State
v. Huff, 763 N.E.2d 695, 703 (Ohio Ct. App. 2001) (evaluating
prejudice where on “cross‐examination, the state had [the
defendant] display his tattoos to the jury and asked him what the
tattoos meant and why he wore the tattoos” and suggested to the
jury that the tattoos were gang‐related).

¶4 Here, neither the State nor any of the witnesses referred to
Ortiz’s tattoos or their meaning, and no other evidence drew the
tattoos to the attention of the jury. The tattoos were merely visible
on Ortiz’s face and served no apparent evidentiary purpose.2
Because the tattoos did not relate to any alleged fact at issue, they

2. Although the State asserts that the tattoos may have aided the
witnesses in identifying Ortiz, none of the witnesses cited the
tattoos as the basis of their identification or otherwise referred to
the tattoos. Ultimately, it is difficult to see how the trial court’s
ruling prejudiced Ortiz. We disagree with Ortiz’s assertion that
tattoos carry the same indicia of guilt as prison garb or handcuffs.
See generally Estelle v. Williams, 425 U.S. 501, 504 (1976); State v.
Mitchell, 824 P.2d 469, 473 (Utah Ct. App. 1991). While tattoos
might carry a negative connotation for some, they are not
exclusively associated with prisoners or criminals the way prison
clothing and handcuffs are. Unlike prison garb, tattoos are
voluntarily donned by the defendant and, once created, are part of
his regular appearance. Furthermore, in this case, the jurors were
specifically asked whether the facial tattoos would affect their
ability to be fair and impartial and none of the jurors indicated that
they would. If anything, the defense used Ortiz’s tattoos to its
advantage by suggesting that the witnesses’ failure to mention his
tattoos undermined the credibility of their identifications.

20120198‐CA 3 2013 UT App 100
State v. Ortiz

did not constitute evidence and were therefore not subject to the
rules of evidence. See generally Black’s Law Dictionary 635 (9th ed.
2009) (defining “evidence” as “[s]omething (including testimony,
documents and tangible objects) that tends to prove or disprove the
existence of an alleged fact”); 31A C.J.S. Evidence § 2, at 18–19 (2008)
(“Evidence is the demonstration of a fact; it signifies that which
demonstrates, makes clear, or ascertains the truth of the very fact
or point at issue, either on the one side or on the other. In legal
usage, the term ‘evidence’ includes all the means by which any
alleged matter of fact, the truth of which is submitted to
investigation, is established or disproved.” (footnotes omitted)).
Accordingly, we reject Ortiz’s argument that the tattoos constituted
inadmissible evidence and that he therefore should have been
permitted to cover them, and we affirm Ortiz’s conviction.

20120198‐CA 4 2013 UT App 100