State v. Trujillo

2017 UT App 116

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TIMOTHY JAMES TRUJILLO,
Appellant.

Opinion
No. 20150468-CA
Filed July 13, 2017

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 131907893

Nathalie S. Skibine and Christopher J. Jones,
Attorneys for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

ORME, Judge:

¶1 Timothy James Trujillo appeals his conviction for
retaliation against a witness, victim, or informant, a third degree
felony. See Utah Code Ann. § 76-8-508.3(2) (LexisNexis 2012). On
appeal, Trujillo argues that his statements to police did not
constitute a threat; that any threat he might have made was not
directed against a witness, victim, or informant; and that the trial
court erroneously admitted evidence of gang affiliation. We
affirm.
State v. Trujillo

BACKGROUND 1

¶2 While on patrol one evening, a police officer encountered
an intoxicated minor who appeared to have been assaulted.
Although several other people were nearby, this initial officer
determined that none of them were the culprits. He cited the
minor for underage drinking and left. Later that night, the initial
officer returned to the scene after receiving a report of a man
wielding a knife.

¶3 Upon arrival, the initial officer saw two groups of people
arguing. One of these groups included the minor encountered
previously, the minor’s brother, Trujillo, and another man. The
other group consisted of neighbors. The initial officer detained
the minor and his brother and told Trujillo and the other man to
leave. After further surveying the scene, the initial officer located
three butcher knives and called for backup. When the backup
officers arrived, the initial officer told them that Trujillo and the
other man might be the owners of the knives, and he gave the
backup officers their likely location.

¶4 After locating Trujillo and the other man, the backup
officers asked both individuals to speak with them, but they ran
inside a nearby house. The officers followed, knocked on the
door, and announced that they were police officers. They
received no response. Fearing the men might retrieve weapons,
the officers kicked down the door. The backup officers arrested
Trujillo and the other man and then confirmed their identities
with the initial officer, who informed Trujillo and the other man
that they were being charged with aggravated assault and failing
to stop at the command of a police officer.

1. “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. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

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State v. Trujillo

¶5 At this point, Trujillo began to argue with the officers and
proclaim his innocence. After Trujillo brought up the neighbors,
the officers told Trujillo that the neighbors had not been
involved in the minor’s assault, that they were trying to help the
minor, and that Trujillo should “stay away from them.” Trujillo
responded by saying that “if I’m being charged with [aggravated
assault],” then “my boys will be paying [them] a visit . . . and it’s
[the officers’] fault.” Trujillo repeated this several times before
continuing, “Do you expect me to go to . . . jail and nothing
happen?”

¶6 The State charged Trujillo with one count of retaliation
against a witness, victim, or informant. Following his bindover
on the charge, Trujillo filed a motion to quash, arguing that the
State did not present sufficient evidence that he made a threat of
harm. The trial court denied the motion. Later, the State filed a
motion in limine, seeking leave to admit evidence of Trujillo’s
gang affiliation because of its importance in demonstrating that
Trujillo’s comments constituted a threat of harm. The trial court
granted the motion. At trial, the State called one of the backup
officers as an expert witness, and he testified as to the history of
gangs in prison, gang culture generally, and Trujillo’s role as a
leader in the gang with which he was affiliated. The jury
convicted Trujillo, and the trial court sentenced him to an
indeterminate prison term not to exceed five years. Trujillo
appeals.

ISSUES AND STANDARDS OF REVIEW

¶7 Trujillo first claims that there was insufficient evidence to
support a conclusion that his statements constituted a threat. “In
assessing a claim of insufficiency of the evidence, ‘we review the
evidence and all inferences which may reasonably be drawn
from it in the light most favorable to the verdict of the jury.’”
State v. Cruz, 2016 UT App 234, ¶ 72, 387 P.3d 618 (quoting State
v. Maestas, 2012 UT 46, ¶ 302, 299 P.3d 892).

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State v. Trujillo

¶8 Trujillo next asserts that, under the plain language of the
retaliation statute, a threat cannot be directed against a witness,
victim, or informant unless that threat is communicated directly
to such a person. Whether a threat must be communicated to a
witness, victim, or informant before it will trigger criminal
liability raises a question of statutory interpretation, which we
review for correctness. See State v. Davis, 2011 UT 57, ¶ 16, 266
P.3d 765.

¶9 Finally, Trujillo argues that the trial court erroneously
admitted evidence of his gang affiliation. “[W]e review a trial
court’s decision to admit or exclude specific evidence for an
abuse of discretion.” State v. Cruz-Meza, 2003 UT 32, ¶ 8, 76 P.3d
1165.

ANALYSIS

I. Trujillo’s Statements to Police Constituted a Threat.

¶10 Trujillo first claims that his statements were not threats.
Rather, he suggests that his words “were more akin to a
confession of retaliatory feelings.” An individual is guilty of
retaliation against a witness, victim, or informant if, “believing
that an official proceeding or investigation is pending, is about
to be instituted, or has been concluded,” he or she “makes a
threat of harm”; “directs the threat or action . . . against a
witness,” victim, or informant; and directs the threat “as
retaliation or retribution against the witness, victim, or
informant.” Utah Code Ann. § 76-8-508.3(2)(a)–(b) (LexisNexis
2012).

¶11 The initial officer testified that, when he arrived at the
house where the backup officers found and detained Trujillo,
Trujillo was “arguing and yelling about someone having to
pay.” After being arrested, Trujillo exclaimed, “Do you expect
me to go to . . . jail and nothing happen?” Trujillo completed his

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State v. Trujillo

tirade by warning the officers that if he was charged with
aggravated assault, his “boys will be paying [the neighbors] a
visit,” which would be the officers’ fault. One backup officer
testified that he regarded the threat as “quite serious” because of
Trujillo’s leadership role in his gang. Given that younger gang
members are often eager to “gain favor” with and “impress the
leaders,” the officer feared retaliation against the neighbors on
Trujillo’s behalf.

¶12 At trial, the backup officer testifying as an expert witness
stated that gangs and their members have a tendency to react
violently to perceived “slights.” After learning more about the
events of that night, the jury could have inferred that Trujillo
was angry with the neighbors because he believed that they
were involved in the assault of the minor, because he believed
they reported the knives, because they were arguing with his
gang’s members, or simply because he was being arrested.
Regardless, Trujillo made a conditional statement that if he was
arrested for aggravated assault, then his “boys” would pay the
neighbors a visit. This statement’s inverse, then, is that if the
officers did not arrest him for aggravated assault, then his boys
would not pay the neighbors a visit. From this, the jury could
reasonably infer that Trujillo’s statement was a threat against the
neighbors and that, in making it, Trujillo intended to pressure
the arresting officers into dropping the matter. We therefore
conclude that there was sufficient evidence for a jury to conclude
that Trujillo’s statements constituted a threat.

II. Trujillo Directed His Threat Against a Witness, Victim,
or Informant.

¶13 The applicable statute provides, in relevant part, that “[a]
person is guilty of . . . retaliation against a witness, victim, or
informant” if he “makes a threat of harm” and “directs the threat
against” any of the described persons. Utah Code Ann. § 76-8-
508.3(2) (LexisNexis 2012). Trujillo claims that the statute’s plain
language requires that “the threat will reach its target.” Put

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State v. Trujillo

simply, Trujillo argues that threats can be directed against a
witness, victim, or informant only if the threat is communicated
to that witness, victim, or informant.

¶14 When interpreting a statute, we look first to its plain
language. See R.A. McKell Excavating, Inc. v. Wells Fargo Bank, NA,
2004 UT 48, ¶ 8, 100 P.3d 1159. “A starting point for our
assessment of ordinary meaning is the dictionary.” State v.
Bagnes, 2014 UT 4, ¶ 14, 322 P.3d 719. Merriam-Webster’s
Dictionary defines “against” as “in opposition or hostility to.”
Against, Merriam-Webster’s Dictionary, https://www.merriam-
webster.com/dictionary/against [https://perma.cc/MQ2M-XVKM].
Trujillo’s argument would be persuasive if the statute required
that an individual make a threat to a witness, victim, or
informant, as “to” is used “to indicate the receiver of an action.”
To, Merriam-Webster’s Dictionary, https://www.merriam-
webster.com/dictionary/to [https://perma.cc/U64R-95XR]. But
the statute uses the term “against” instead of “to,” and it is
devoid of any language suggesting that the threat must be made
with the intent that it reach the witness, victim, or informant. See
Utah Code Ann. § 76-8-508.3(2). The Utah Legislature could
easily have included such language had it intended that
meaning. See, e.g., id. § 76-8-508.5(2) (requiring that a threat be
communicated “to” a juror before a person may be convicted of
tampering with a juror). Thus, we conclude that a statement
need not be communicated to a witness, victim, or informant
before section 508.3 is violated. Instead, the threat must simply
be directed against such a person.

¶15 Here, Trujillo made his threatening statements
immediately after the officers urged him to leave the neighbors
alone. Trujillo was warned not to take action against the
neighbors, and he responded by repeating his threat. Because the
plain language of the statute does not require a threat to be
communicated directly to a witness, victim, or informant, we
conclude that the jury had sufficient evidence to determine that
the threat was directed against the neighbors.

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State v. Trujillo

III. The Trial Court Did Not Erroneously Admit Evidence of
Gang Affiliation.

¶16 Finally, Trujillo claims that the trial court “exceeded its
discretion” by admitting “highly prejudicial character evidence.”
For such evidence to be admitted, (1) it “must be offered for a
genuine, noncharacter purpose,” (2) it “must be relevant to that
noncharacter purpose,” and (3) “the probative value of the
evidence must not be substantially outweighed by the danger of
unfair prejudice.” State v. Reece, 2015 UT 45, ¶ 57, 349 P.3d 712
(citation and internal quotation marks omitted). Because Trujillo
does not contend that the evidence was unrelated to a
noncharacter purpose, we limit our discussion to the first and
third prongs.

A. The Evidence Was Offered For a Noncharacter Purpose.

¶17 Trujillo argues that the evidence of his gang affiliation
consisted of “impermissible character and propensity” evidence.
Rule 404(b) of the Utah Rules of Evidence, often referred to as
the “bad acts” rule, instructs that “[e]vidence of a crime, wrong,
or other act is not admissible to prove a person’s character in
order to show that on a particular occasion the person acted in
conformity with the character.” 2 Utah R. Evid. 404(b)(1). But this

2. This is not to say that we are convinced that the State
presented evidence of Trujillo’s bad acts. Tracing the roots of
gangs in the prison system, testifying about gang culture, and
revealing how individuals gain respect and prominence in a
gang are all unrelated to any specific act of Trujillo. Indeed, the
only gang-related evidence that pertained to Trujillo was
testimony of his ongoing leadership role in a gang and his gang
tattoo, neither of which is necessarily protected evidence under
rule 404(b). See State v. Gonzalez, 2015 UT 10, ¶¶ 39–40, 345 P.3d
1168 (stating that “mere evidence of gang affiliation that does
not relate to prior bad acts [of a defendant] does not violate rule
(continued…)

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State v. Trujillo

type of evidence may be admitted for certain noncharacter
purposes, “such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Id. R. 404(b)(2). This list is not exhaustive, as
prior bad act evidence is inadmissible only “where the sole
reason it is being offered is to prove bad character or to show
that a person acted in conformity with that character.” State v.
Pullman, 2013 UT App 168, ¶ 31, 306 P.3d 827 (emphasis in
original) (citation and internal quotation marks omitted). Utah
courts have previously admitted gang-affiliation evidence for
noncharacter purposes, including evidence “showing a key
witness’s fear of gang retaliation, gang evidence explaining the
circumstances surrounding a crime and the victim’s and the
defendant’s intent, and evidence demonstrating motive based on
a long-standing grudge between rival gangs.” State v. Gonzalez,
2015 UT 10, ¶ 40, 345 P.3d 1168.

¶18 Here, the evidence was presented for a proper
noncharacter purpose. First, the evidence was admitted to show
that Trujillo knowingly, intentionally, or recklessly made a threat
as opposed to some more innocuous comment. Additionally,
and more importantly, the expert witness’s testimony about
gangs was offered to demonstrate that Trujillo’s statements
constituted a threat—a required element of the charged offense.
Indeed, some of Trujillo’s statements could seem innocuous
absent this all-important context. For instance, consider the
statement, “if I’m being charged with [aggravated assault],” then
“my boys will be paying [the neighbors] a visit[.]” If Trujillo
were a scoutmaster meaning only to send the “boys” of his scout

(…continued)
404’s prohibition against character evidence”). Insofar as the
State’s evidence consists of prior bad acts, however, we hold that
the trial court admitted the evidence for a permissible,
noncharacter purpose. See infra ¶ 18.

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State v. Trujillo

troop over for a visit to the neighbors, perhaps bearing a cake as
a token of apology from Trujillo, one would not take his remark
as menacing. But a visit from a gang leader’s “boys” has a much
more perilous connotation. This is especially true given the
expert witness’s testimony that retaliatory violence is common
with gangs. Thus, we conclude that the trial court did not abuse
its discretion in admitting gang-affiliation evidence for the
purpose of demonstrating that Trujillo’s statements constituted
threats.

B. The Evidence Was Not Unfairly Prejudicial.

¶19 Finally, Trujillo asserts that the probative value of the
expert testimony was substantially outweighed by its danger of
unfair prejudice. Relevant evidence is generally admissible
unless “its probative value is substantially outweighed by a
danger of . . . unfair prejudice . . . or needlessly present[s]
cumulative evidence.” Utah R. Evid. 402, 403. Although the
introduction of gang-affiliation evidence implicates the potential
prejudice of “guilt by association,” see State v. High, 2012 UT App
180, ¶ 27, 282 P.3d 1046 (citation and internal quotation marks
omitted), “it is not necessarily unfairly prejudicial and therefore
should be admitted where it has high probative value,” Gonzalez,
2015 UT 10, ¶ 37 (emphasis in original). Evidence of gang
membership and its related activities has been regularly
admitted by Utah courts in appropriate cases. See High, 2012 UT
App 180, ¶ 23. See also State v. Gallegos, 396 P.2d 414, 416 (Utah
1964) (holding that there was no prejudicial error where a trial
court admitted evidence of a violent conflict between rival
gangs); State v. Cristobal, 2012 UT App 181, ¶ 4, 282 P.3d 1064
(concluding that a trial court did not abuse its discretion in
admitting evidence that gang members “congregate in [their
territory] and exhibit hostility toward intruding nonmembers”);
State v. Toki, 2011 UT App 293, ¶ 12, 263 P.3d 481 (refusing to
reverse where an expert witness testified that gangs, by
definition, are “engaged in criminal activity,” that the defendant
was a part of a gang, that the defendant had the clothing, tattoos,

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and moniker consistent with membership in his gang, and that
gangs are a “problem”).

¶20 State v. Milligan, 2010 UT App 152U, is particularly
instructive in this case. There, the State presented evidence that
the defendant belonged to a gang, that the defendant had several
tattoos consistent with membership in that gang, and that gangs
have a general dislike for “snitches” and respond violently to
them. Id. paras. 3–4. In that decision, we noted that we did not
“see much danger of unfair prejudice,” and concluded that there
was “certainly not enough danger of unfair prejudice that it
would substantially outweigh the probative value of [the]
evidence.” Id. para. 4.

¶21 Here, an expert witness traced the history of gangs in the
prison system, explained how members gain respect and
prominence, and testified regarding gang culture generally. And
much like in Milligan, the expert witness testified that Trujillo
belonged to a gang, that Trujillo had a tattoo consistent with his
gang membership, and that gangs have a general dislike for
snitches. There is no question that this gang-affiliation evidence
was prejudicial. But prejudice alone is insufficient to warrant
reversal. See Utah R. Evid. 403.

¶22 We simply do not see “enough danger of unfair prejudice
that it would substantially outweigh the probative value of this
evidence.” See Milligan, 2010 UT App 152U, para. 4. The
probative value of the expert testimony was high. In fact, it was
essential to elucidating the meaning, in context, of Trujillo’s
statements. Additionally, the risk of unfair prejudice did not
substantially outweigh the probative value of the testimony.
First, the majority of the expert testimony spoke to gangs
generally rather than the specific actions undertaken by Trujillo
or his gang. Second, the trial court gave the jury a limiting
instruction, prohibiting the jury from convicting Trujillo based
on “[e]vidence of other crimes, wrongs, or acts,” or “because he
[was] an alleged gang member.” Third, during closing

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argument, the prosecutor likewise limited the use to which he
put the gang-affiliation evidence by informing the jury that it
should not convict Trujillo simply because he was a gang
member. Accordingly, he “did not take unfair advantage of the
gang-related testimony.” See Toki, 2011 UT App 293, ¶ 47. Thus,
this is not a case in which the evidence was only “marginally
relevant and highly prejudicial,” see High, 2012 UT App 180,
¶ 27, and we conclude that the trial court did not abuse its
discretion by admitting the gang-affiliation evidence.

CONCLUSION

¶23 Trujillo has not established that there was insufficient
evidence that he made a threat. Nor has he demonstrated that a
threat must be communicated “to” a witness, victim, or
informant before a threat will be deemed “directed against” a
witness, victim, or informant, in violation of section 76-8-508.3.
Finally, Trujillo has not shown that the trial court abused its
discretion in admitting gang-affiliation evidence.

¶24 Affirmed.

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