State v. Lopez-Betanco

2022 UT App 119

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ADONIS JONATHAN LOPEZ-BETANCO,
Appellant.

Opinion
No. 20190775-CA
Filed October 20, 2022

Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 191900649

Sarah J. Carlquist, Amy V. Powers, and Matthew
Vanek, Attorneys for Appellant
Sean D. Reyes and David A. Simpson,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.

HARRIS, Judge:

¶1 Adonis Jonathan Lopez-Betanco and his girlfriend (Karla1)
had an altercation. Accounts of the altercation differed, but the
jury found Karla’s account more persuasive and convicted Lopez-
Betanco of aggravated assault and domestic violence in the
presence of a child. Lopez-Betanco now appeals those convictions,
asserting that the trial court erred in failing to take additional
action related to a translation issue that arose at trial. We affirm
Lopez-Betanco’s convictions.

1. A pseudonym.
State v. Lopez-Betanco

BACKGROUND2

¶2 At the time of the events in question, Lopez-Betanco and
Karla—both native Spanish speakers with limited ability to speak
English—were living together in an apartment along with Karla’s
three-year-old daughter from a previous relationship. One night,
Lopez-Betanco and Karla got into a disagreement that apparently
had to do with one of them texting or otherwise communicating
with a person of the opposite sex. But they each gave very
different accounts of what happened.

¶3 As Karla recounted the events, she was in the couple’s
shared bedroom with her daughter when she received a short
video, on her phone, from her daughter’s father. The video
included a “romantic song,” and when Lopez-Betanco saw the
video he “deleted it,” which upset Karla. An argument ensued,
and Lopez-Betanco took Karla’s phone into the bathroom for a
few minutes, then returned to the bedroom and “hit [Karla] in the
nose with his closed fist” so hard that Karla thought her nose was
broken. Karla then expressed a desire to leave the apartment, and
asked Lopez-Betanco to give her phone back so that she could call
a friend to come pick her up, but he refused and “became very
aggressive.” Karla testified that Lopez-Betanco proceeded to
“beat [her],” and even “kicked [her] in the stomach” hard enough
to knock her to the floor. While Karla was on the floor, Lopez-
Betanco told her that “he was going to kill [her],” and started
“wringing [her] neck” and “strangulating [her] really hard.” At
first, Karla attempted to fight back, and scratched Lopez-Betanco
on the neck, but she eventually found it difficult to breathe and
soon she couldn’t “see anything anymore.” Karla’s daughter was
present the whole time, and at one point she began to cry and
plead with Lopez-Betanco to “let [her mother] go.” Eventually,

2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Rosen, 2021 UT App 32, n.1, 484 P.3d 1225 (quotation simplified).

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State v. Lopez-Betanco

Lopez-Betanco released Karla, and she was able to leave the
apartment with her daughter.

¶4 Lopez-Betanco testified in his own defense at trial, and he
described the events in question quite differently. In his telling,
the dispute arose because Karla had been “looking through” his
phone while he was in the shower. While doing so, Karla
discovered messages from the mother of Lopez-Betanco’s
daughter, which upset her. Perceiving that Karla was angry,
Lopez-Betanco tried to leave the room, but Karla “grabbed [him]
by the shirt” and “started attacking” and “slapping” him. In the
fracas, Karla “grabbed [Lopez-Betanco’s] neck” and scratched it,
inflicting a minor injury. To escape Karla’s grasp of his shirt, he
“took off” the shirt and then “pushed her.” Lopez-Betanco stated
that, at that point, Karla “grabbed [a] hammer” and “threw it at
[him],” but he “dodged it.” Eventually, things “calmed down”
and Karla left the apartment with her daughter.

¶5 After Karla and her daughter left the apartment, they
walked across the street to a nearby laundromat. Karla was upset,
crying, and bleeding from her head. She spoke with a woman
outside the laundromat and told her: “Call the police, I have been
beaten.” Two officers arrived at the laundromat shortly thereafter,
one of whom (Officer) spoke Spanish3 and one of whom did not.

¶6 When the officers arrived, they observed that Karla was “in
distress.” She had a swollen right eye, “some swelling on the
bridge of her nose,” and dried blood on her forehead. The officers
approached Karla and spoke with her; Officer communicated
directly with Karla in Spanish and translated the conversation for
his colleague, and their discussion (including Officer’s English
translation of it) was recorded on Officer’s bodycam.

3. Although the record indicates that Officer spoke Spanish, it
does not reveal much about the extent of his language training or
ability, or whether he is a native Spanish speaker.

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State v. Lopez-Betanco

¶7 Karla was initially hesitant to provide the officers with any
substantive information, but she did tell them that “her significant
other hit [her],” and she eventually disclosed both Lopez-
Betanco’s name and their shared address. As the conversation
went on, Officer felt as though he was able to build a rapport with
Karla’s daughter, and Karla “was able to open up to [Officer].”

¶8 At one point in the conversation, Officer asked Karla
whether Lopez-Betanco had attempted to strangle her. Karla
responded in the affirmative, stating that Lopez-Betanco had
wrapped both his hands around her neck for as long as five
minutes. Officer then photographed what he saw as “a pattern of
a hand being wrapped around the neck and applying pressure to
it,” in addition to some small reddish dots called “petechiae” on
Karla’s eyes and lips. According to Officer, these were “textbook
[signs of] strangulation,” and it would have been “difficult to self-
inflict them.”

¶9 After Karla finished talking to the officers, she went back
to the apartment to pick up her things. The officers followed her
there, where they found Lopez-Betanco. The officers spoke with
Lopez-Betanco; that conversation was also recorded on Officer’s
bodycam. As was the case at the laundromat, the conversation
took place in Spanish, with Officer acting as a translator for his
colleague. During the conversation, Lopez-Betanco described the
events largely as recounted above. However, he could not account
for the bumps on Karla’s head and forehead. Nor could he explain
the apparent finger marks found on her neck. When asked about
those injuries, he stated simply, “I don’t know. I couldn’t tell you.”
He later added, “Yeah, she likes to cut herself.”

¶10 With regard to the hammer specifically, Lopez-Betanco
told the officers, in Spanish, the following: “luego pues agarró un
martillo y me quería dar con el martillo.” Officer translated this
sentence for his colleague, telling him that Lopez-Betanco had
said, “She grabbed a hammer and was going to swing it at me.”

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State v. Lopez-Betanco

But despite searching for it, the officers were unable to find a
hammer in the apartment.

¶11 Lopez-Betanco was ultimately charged with two crimes:
(1) aggravated assault, stated in the first instance as a second-
degree felony (if the jury found that Karla had lost consciousness
while being strangled) but also stated, in the alternative, as a
third-degree felony (if the jury did not find that Karla had lost
consciousness); and (2) domestic violence in the presence of a
child. The case proceeded to a jury trial.

¶12 At trial, Karla, Officer, and Lopez-Betanco testified as
outlined above. The only other witnesses to testify were a
bystander at the laundromat, who testified about Karla’s
emotional arrival there, and a forensic nurse (Nurse), who
testified about Karla’s injuries. According to Nurse, the petechiae
found on Karla’s eyes and lips were consistent with strangulation.
She also testified that the petechiae did not seem consistent with
Lopez-Betanco’s version of events, in which he simply grabbed
Karla and “pushed her away.” Nurse noted that, although
petechiae can result from other causes—such as childbirth, scuba
diving, allergic reaction, or infection—in those cases, the
petechiae would be more broadly distributed throughout the
body, as opposed to being concentrated in one central location, as
was the case with Karla.

¶13 Both Karla and Lopez-Betanco testified in Spanish, with
court-certified interpreters translating their testimony for the jury.
Officer testified in English, and therefore no interpreter was used
to transmit his testimony to the jury. During Officer’s testimony,
the State played the video from Officer’s bodycam, and the jury
heard Officer translate Lopez-Betanco’s statement about the
hammer as follows: “She grabbed a hammer and was going to
swing it at me.” The prosecutor followed up with a question,
asking Officer, “So at this point [Lopez-Betanco] now says that she
grabbed a hammer and swung it at him; is that correct?” Officer
responded in the affirmative.

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State v. Lopez-Betanco

¶14 Lopez-Betanco was the last witness to testify at trial.
During cross-examination, the prosecutor attempted to cast doubt
on the credibility of Lopez-Betanco’s account by emphasizing
alleged inconsistencies in his version of events, including whether
Lopez-Betanco believed Karla had “swung” the hammer at him
or had “thrown” it at him. As noted above, the jury had heard
Officer—during the bodycam video—state that Lopez-Betanco
told him, in their initial conversation at the apartment, that Karla
had grabbed a hammer and had “swung” it at him. But during his
direct examination, Lopez-Betanco told the jury—through a
court-certified interpreter—that Karla had “grabbed [the]
hammer” and “threw it at [him].”

¶15 On this topic, the prosecutor engaged in the following
colloquy with Lopez-Betanco, with the questions being posed in
English and the responses being given in Spanish, all translated
for the witness and for the jury by one of the court-certified
interpreters:

Q: Now you also indicated on your direct
testimony that [Karla] grabbed a hammer and
threw it at you; isn’t that correct?

A: Yes.

....

Q: You told the officers that she tried to hit you with
the hammer; didn’t you?

A: Yes. Yes. Correct.

Q: But here you’re saying she threw the hammer at
you?

20190775-CA 6 2022 UT App 119
State v. Lopez-Betanco

A: Yeah. She threw the hammer at me because she
wanted to hit me with the hammer and so she
threw it at me.

Q: Okay. But the word you used with the officers
wasn’t “hit” it was “swing”; isn’t that right? That
[Karla] swung the hammer at you, was going to
swing it at you and then you ran out of the room?

¶16 At this point, the interpreter interrupted the proceedings
and stated: “This is the interpreter speaking. I need to consult a
term with my colleague.” After a brief off-the-record consultation
between the interpreters, the prosecutor then continued with his
line of questioning:

Q: When you were describing the incident to
officers, you said that [Karla] was going to swing
it at you and then you ran out of the room; isn’t
that right?

A: Yes.

Q: So which one is it? Did she swing it at you, did
she try to hit you with it, or did she throw it at
you?

A: Well, I told the officers that she wanted to get me
with the hammer.

....

Q: You told the officers that she swung the hammer
at you and then you left the room; isn’t that
correct?

A: Yes.

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State v. Lopez-Betanco

¶17 Later, after Lopez-Betanco had finished testifying and both
sides had rested, but before closing arguments and final jury
instructions, the interpreters approached the court during a break
and explained that they did not believe that “swing” was the best
translation for the verb that Lopez-Betanco had used in his
statement to Officer during the initial interview. One of them
explained to the court that “the word ‘swing’ in Spanish doesn’t
actually exist in a literal sense and so . . . the interpreter had to use
a word that was more descriptive of the action but that was not
the word that [Lopez-Betanco] used in Spanish.”4 He stated that
this linguistic conundrum had put them “in a bit of a
predicament” during the State’s cross-examination of Lopez-
Betanco “because there was extensive questioning about” the
word “swing” and the interpreters “didn’t want to interfere on
either side of the case for or against any side.”

¶18 Defense counsel then asked the court “to notify the jury
about” the issue. In response, the court stated, “I don’t know that
I’m going to ask the jury to do anything other than simply listen
to the interpreters and they’ve done their due diligence.” Defense
counsel then asked whether “a simple . . . oral instruction from
[the court] explaining what the sidebar was about and instructing
the jury that there is no actual verbatim translation for the term
‘swing’ [would] be appropriate.” The court replied:

4. The record submitted to us does not reveal which “more
descriptive” Spanish words the interpreters used when they
translated the prosecutor’s question for Lopez-Betanco. But, as
noted below, Lopez-Betanco makes no allegation that the
linguistic work-around the interpreters utilized failed to
appropriately convey the meaning of the English word “swing”
to Lopez-Betanco; indeed, he does not allege, in connection with
this appeal, that the court-appointed interpreters made any
translation error at all at any point in these proceedings.

20190775-CA 8 2022 UT App 119
State v. Lopez-Betanco

You know, my sense is that we’re probably going
to—rather than wading in on this that . . . I can
certainly indicate to the jury that the interpreters
had a conference, that the conference they discussed
translation for terms. And rather than highlight any
term or not highlight one that the interpreters met
and conferred and by virtue of that made the
appropriate translation of the record here. You
know, I’d be glad to do that so there’s no question
that they received that. Okay?

Defense counsel responded, “I think that would be fine, Your
Honor.”

¶19 A few minutes later, after the jury returned to the
courtroom, the court made the following statement:

During the break there was an issue that came up
and I simply wanted to report to the jury so they’re
fully aware with regard to matters. During . . . the
testimony of one of the witnesses here there was a
question between the interpreters as to the correct
interpretation of the terms they were called upon to
interpret and I can report to you that the interpreters
advised the Court subsequently that they had met
and conferred, talked about the interpretation, and
that the interpretation that they made was
consistent with their charge to fully and accurately
interpret terms and conditions. So just so you are
aware of that taking place and that the interpreters
handled that pursuant to their charge as interpreters
here in the case.

20190775-CA 9 2022 UT App 119
State v. Lopez-Betanco

¶20 After deliberation, the jury found Lopez-Betanco guilty of
domestic violence in the presence of a child and of third-degree-
felony aggravated assault.5

ISSUE AND STANDARD OF REVIEW

¶21 Lopez-Betanco now appeals, and asserts that the trial court
erred by “refus[ing] to correct [Officer’s] noncertified and
incorrect translation of [Lopez-Betanco’s] statement to police.”
We review the court’s actions for abuse of discretion. See State v.
Humphrey, 793 P.2d 918, 925 (Utah Ct. App. 1990) (“Trial courts
have the discretion to determine whether a curative instruction is
required in a particular case.”); see also State v. Trujillo, 214 P.2d
626, 634–35 (Utah 1950) (“Before the lower court is overruled in
[its] use of an interpreter, there should be positive evidence of an
abuse of discretion on [its] part.”); Guevara v. United States, 77 A.3d
412, 424 (D.C. 2013) (stating that, where a party “makes the court
aware of any difficulties with the translator, then the court must
take corrective action,” and that, on appeal, “this court will then
review the trial court’s action for abuse of discretion” (quotation
simplified)).6

5. By finding Lopez-Betanco guilty only of third-degree-felony
aggravated assault, the jury apparently did not find, beyond a
reasonable doubt, that he had caused Karla to lose consciousness.

6. The State contends that this issue is not preserved for our
review, given that Lopez-Betanco’s attorney ultimately indicated
that the court’s proposed resolution of the issue “would be fine.”
But because we resolve this case on the merits in the State’s favor,
we need not further explore the State’s preservation arguments.
See State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (“[I]f the
merits of a claim can easily be resolved in favor of the party
asserting that the claim was not preserved, we readily may opt to
do so without addressing preservation.” (emphasis omitted)).

20190775-CA 10 2022 UT App 119
State v. Lopez-Betanco

ANALYSIS

¶22 Rule 604 of the Utah Rules of Evidence requires that court
interpreters “be qualified” and that they “give an oath or
affirmation to make a true translation.” Our supreme court has
noted that “[i]t is the function of an interpreter to transmit
question and answer between counsel and the witness, [so] that
the court and jury may hear and understand what is said.”
Trujillo, 214 P.2d at 635. When a trial court becomes “aware of any
difficulties with” the accuracy of a court-appointed interpreter’s
translation, “then the court must take corrective action.” See
Guevara, 77 A.3d at 424.

¶23 Lopez-Betanco points out that, in this case, difficulties with
translation became apparent, and he asserts that the trial court
abused its discretion by handling the issue the way it did. In
particular, Lopez-Betanco contends that the court’s instruction to
the jury about the issue did not go far enough, and he asserts that
the court should have taken additional steps to “correct or clarify
[Officer’s] incorrect translation of Lopez-Betanco’s police
statement,” including specifically informing the jury that there is
no direct translation in Spanish for the English verb “to swing.”

¶24 But under the circumstances presented here, there is no
allegation that any court-appointed interpreter made any mistake
or error. Lopez-Betanco’s assertion is that Officer’s translation of
Lopez-Betanco’s statement for his colleague—contained in the
bodycam video played for the jury during Officer’s testimony—
was inaccurate. Indeed, Lopez-Betanco frames the relevant issue
as “[w]hether the trial court erred when it refused to correct
[Officer’s] noncertified and incorrect translation,” and he further
acknowledges that “the issue is not that the [court-appointed]
interpreters themselves made any error.” These concessions
render Lopez-Betanco’s entire argument infirm.

¶25 Certainly, if a court becomes aware that a court-appointed
interpreter has incorrectly translated a witness’s testimony for the

20190775-CA 11 2022 UT App 119
State v. Lopez-Betanco

jury, the court would be under an obligation to take appropriate
action to correct the interpreter’s error. See Guevara, 77 A.3d at
424–25. But where a different witness—one whose testimony is
not being transmitted to the jury through a court-appointed
interpreter—offers admissible testimony purporting to translate a
statement from a foreign language, the veracity of that witness’s
testimony, including the accuracy of the witness’s purported
translation, is not ordinarily a matter for a court to weigh in on.
See People v. Munoz-Casteneda, 300 P.3d 944, 948 (Colo. App. 2012)
(“When a fact witness’s testimony includes an English translation
of his out-of-court conversation with a non-English speaker, his
role does not change from fact witness to neutral interpreter for
purposes of that testimony.”); see also State v. Roldan, 855 A.2d 445,
449 (N.H. 2004) (stating that rules applicable to neutral court
interpreters retained by the court do not apply to testimony
regarding the meaning or accuracy of foreign language evidence).
In such instances, the accuracy of the witness’s purported
translation is simply an evidentiary matter like any other, which
the parties are of course free to debate through the usual and
customary evidentiary means. See Munoz-Casteneda, 300 P.3d at
948 (noting that the credibility of a fact witness, even when
purporting to translate a conversation, is “subject to cross-
examination and, generally, to impeachment by independent
evidence,” and stating that “[i]t is these procedures, rather than
any type of court certification, that ensure truthful and accurate
fact witness testimony”).

¶26 Lopez-Betanco undoubtedly had the right to take issue
with Officer’s translation of the bodycam conversation. He could
have cross-examined Officer about his Spanish-language
capability, or about his experience translating conversations into
English. See United States v. Villalta, 662 F.2d 1205, 1206 (5th Cir.
1981) (noting that “the credibility of the witness’s testimony as to
Spanish conversations” and as “to his ability to understand
Spanish” was a matter for “cross-examination”). He could have
asked Officer directly about the accuracy of his translation of the
bodycam conversation, including examination about whether the

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State v. Lopez-Betanco

Spanish language includes an adequate analogue for the English
verb “to swing.”7 See State v. Garcia, 7 A.3d 355, 368 (Conn. 2010)
(stating that the issue of whether a fact witness’s “translation was
accurate” was one that “[d]efense counsel was free to . . . explore
. . . on cross-examination”). And, assuming he met witness
disclosure requirements, he could have even called witnesses of
his own, trained in Spanish, to offer an opinion regarding the
accuracy of Officer’s translation. But he was not entitled, under
these circumstances, to an instruction from the court directing the
jury that Officer’s translation was inaccurate. See id. (stating that
“the ultimate determination of . . . whether [a] translation was
accurate rested with the jury”); see also Utah R. Crim. P. 19(f)
(stating that courts “shall not comment on evidence in the case,
and if the court refers to any of the evidence, it shall instruct the
jury that they are the exclusive judges of all questions of fact”).

CONCLUSION

¶27 The trial court did not abuse its discretion by declining
Lopez-Betanco’s invitation to instruct the jury that Officer’s
translation of the bodycam conversation was inaccurate. The
accuracy of the translation proffered by Officer—who was not a
court-appointed interpreter—was an evidentiary matter for cross-
examination, witness testimony, and argument, and was not the
proper subject of a corrective jury instruction from the court.

¶28 Affirmed.

7. Upon hearing the interpreters describe the linguistic issue to the
court immediately after the close of evidence, Lopez-Betanco
made no request to re-open the evidence to, for instance, recall
Officer or to offer other testimony about the issue. Nor does he
now assert that his trial attorneys were ineffective for electing not
to make such a request.

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