State v. High, 20100668–CA.

Citation282 P.3d 1046,712 Utah Adv. Rep. 13,2012 UT App 180
Decision Date06 July 2012
Docket NumberNo. 20100668–CA.,20100668–CA.
PartiesSTATE of Utah, Plaintiff and Appellee, v. Lonny HIGH, Defendant and Appellant.
CourtCourt of Appeals of Utah

OPINION TEXT STARTS HERE

Matthew R. Morrise and Margaret P. Lindsay, Provo, for Appellant.

Mark L. Shurtleff and Andrew F. Peterson, Salt Lake City, for Appellee.

Before Judges McHUGH, THORNE, and CHRISTIANSEN.

OPINION

McHUGH, Presiding Judge:

¶ 1 Lonny High appeals his conviction for aggravated assault with an “in concert” enhancement, a second degree felony, seeUtah Code Ann. § 76–5–103 (2008); id. § 76–2–202; id. § 76–3–203.1 (Supp. 2011), and riot, a third degree felony, see id. § 76–9–101 (2008).1 We affirm.

BACKGROUND 2

¶ 2 On October 24, 2009, High, Saul Cristobal,3 and an unidentified third individual (the Third Man), assaulted two brothers (Big Brother and Little Brother). That evening, Big Brother and his friend (Friend) were longboarding on the Provo River Parkway (the Trail). High, Cristobal, and the Third Man, who were also on the Trail, chased Friend and pulled him off his longboard. Eventually, Friend and Big Brother left without further incident.

¶ 3 Later that night, around 10 p.m., Big Brother was riding his longboard down the Trail alone and again saw the three men. As he passed, one of the men asked Big Brother, “What you looking at?”

¶ 4 Approximately one hour later, Big Brother and Little Brother met on the Trail to walk home. Despite Big Brother's urging to take a different route, Little Brother decided to proceed on their normal path along the Trail. Little Brother was on foot and Big Brother was riding his longboard. Soon thereafter, on a portion of the Trail adjacent to a road, the brothers came across High, Cristobal, and the Third Man, who were walking toward them. High and Cristobal left the Trail, and crossed to the far side of the road, while the Third Man walked past the two brothers. When the Third Man whistled, High and Cristobal returned to the Trail and the three began following the brothers. Big Brother informed Little Brother that these three men had confronted him earlier that night. The brothers paused on two occasions to ask the three men to stop following them. During the second exchange, Big Brother referred to the three men as “wannabe gangsters.”

¶ 5 As the two brothers turned to continue on their way, Cristobal picked up a rock and ran at Big Brother with it, while the Third Man attacked Big Brother with what appeared to be a stick. Big Brother curled up into a defensive position just before Cristobal slammed the rock into the side of his head and the Third Man beat him with the stick. High also participated in the altercation, during which the Third Man hit Little Brother on the head with the stick. As the three assailants left the scene, they shouted “PVL,” an acronym for the “Provo Varrio Locotes” gang, and “flash[ed] the signs,” to let the brothers know “that's who did it.” The assault left Big Brother bleeding from a head wound.

¶ 6 The brothers called the police and positively identified High and Cristobal as two of the three men who had assaulted them. The State charged High and Cristobal with riot and aggravated assault committed in concert with two or more persons. Neither defendant requested a separate trial.

¶ 7 Before trial, the State disclosed that it planned to introduce gang evidence, including that High and Cristobal had been convicted for assault in concert with two or more persons for a May 20, 2009 altercation on the Trail. After briefing and argument,4 the trial court ruled that some of the gang evidence was admissible and reserved ruling on the admissibility of the other gang evidence. During trial, High and Cristobal announced their decisions to testify, and the trial court provided the parties another opportunity to be heard on the admissibility of the gang evidence. Ultimately, the trial court ruled that the fact both defendants were felons could be introduced, but the details of the convictions could not due to their similarity to the circumstances of the instant charges. The court also decided that because there had already been evidence that High had “PVL” tattooed on his hand and that the defendants yelled “PVL” as they fled, the State could ask questions about “how long [the defendants had] known each other and in what capacity, and whether or not they [were gang] members.” When asked for clarification, the trial court instructed the State “to exercise some caution” and invited the defendants to object if the State went “too far.”

¶ 8 High and Cristobal both testified that they had acted in self-defense when the brothers attacked them without provocation. They indicated that their first encounter with Big Brother came while they were “hang[ing] out” on the Trail.5 High and Cristobal testifiedthat they told Big Brother and Friend not to pay attention to the Third Man, whom they claimed not to know, because he appeared to be intoxicated and had approached Big Brother and Friend. When they next saw Big Brother, he rode his longboard past them, and no words were exchanged.

¶ 9 High and Cristobal testified that the Third Man was not present when they again encountered the brothers a short while later. High, who had walked across the street to go his separate way, saw the brothers approaching Cristobal on the Trail. Because all three then stopped, High returned to learn what was happening. Both High and Cristobal reported that Big Brother was armed with a pool cue and taunting Cristobal.6 High testified that Big Brother raised the pool cue and “looked like he was getting ready to come at [them].” To defend himself, High picked up a rock as Big Brother rushed at him. High hit Big Brother with the rock, causing Big Brother to drop the pool cue. High grabbed the pool cue and hit Big Brother with it. Then Little Brother grabbed High, so High responded by hitting Little Brother with the cue. Cristobal testified that he did not participate in the fight but was “watching everything.” After the fighting was over, High exclaimed to Cristobal, [I]t's PVL,” because he was “all pumped up.”

¶ 10 At trial, High admitted that he was a member of the PVL gang, and also showed the jury his “PVL” tattoo. The defendants explained that they had been members of PVL together for about four years. Although High remained an active member of the gang, they both claimed that Cristobal had disavowed his affiliation two or three months before the altercation.

¶ 11 On cross-examination, High stated that PVL stands for “Provo Varrio Locotes,” which translates in English to “Provo Neighborhood Crazies.” The State asked High, “what does [PVL] do; what is it about?” High answered, “A street gang,” and his attorney objected. The trial court permitted the testimony and allowed the defendants to register a continuing objection to that line of questioning. The State then elicited additional testimony about PVL's and High's activities.7

¶ 12 At the close of evidence, High memorialized his objection to the Gang Activity Evidence and moved for a mistrial. The trial court denied the motion for mistrial, ruling that by testifying, High and Cristobal had opened the door to “some threshold inquiries as it relates to the organization [PVL] itself.” The trial court concluded that the State's questioning did not go “beyond the direction of the Court in response to the pretrial and in limine motions. However, the court did give an instruction limiting the jury's use of all of the gang related evidence.8

¶ 13 During closing argument, the State did not mention the Gang Activity Evidence. The State focused on credibility instead, arguing that the testimony of Little Brother and Big Brother was more reliable than that of the defendants. The jury found High and Cristobal guilty of both riot and aggravated assault, and also found that they had acted in concert. High filed a timely appeal to this court, challenging his conviction.

ISSUE AND STANDARD OF REVIEW

¶ 14 On appeal, High claims that the trial court exceeded its discretion by admitting evidence of his other bad acts. Specifically, High challenges the admission of the Gang Activity Evidence. We will reverse a trial court's decision to admit evidence of other bad acts only if the trial court exceeded its discretion, see State v. Widdison, 2001 UT 60, ¶ 42, 28 P.3d 1278, and the error was harmful, see Butler v. Naylor, 1999 UT 85, ¶ 9, 987 P.2d 41.

ANALYSIS

¶ 15 High does not challenge the trial court's pretrial ruling or the Gang Affiliation Evidence. Indeed, High concedes that the Gang Affiliation Evidence was probative of the three assailants' relationship and their “alleged collusion.” 9See State v. Toki, 2011 UT App 293, ¶ 45, 263 P.3d 481 (holding that “shared gang affiliation” is “highly probative” to show codefendants acted “in concert”), cert. denied,272 P.3d 168 (Utah 2012); see also United States v. Brown, 200 F.3d 700, 708–09 (10th Cir.1999) (holding that gang affiliation evidence was relevant to “identity, joint venture and existence of a conspiracy” and that “gang affiliation illuminates the relationship between [a witness] and the [d]efendants”); United States v. Thomas, 86 F.3d 647, 652 (7th Cir.1996) (“Gang affiliation is particularly relevant, and has been held admissible, in cases where the interrelationship between people is a central issue.”). Rather, High contends that the Gang Activity Evidence that was related to his previous participation in gang fights and the fact that status within PVL is attained through violence should have been excluded under rule 404(b) of the Utah Rules of Evidence. 10

I. The Gang Activity Evidence Is Properly Considered Under Rule 404(b)

¶ 16 Rule 404(b) governs the admission of evidence of “crime[s], wrong[s], or other act[s] committed by the defendant. SeeUtah R. Evid. 404(b). 11 Such evidence is admissible if it is offered for a proper, noncharacter purpose, if it is relevant under rules 401 and 402 of the Utah...

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