State v. Percival, 050720 UTCA, 20180377-CA

Docket Nº:20180377-CA
Opinion Judge:POHLMAN, JUDGE:
Party Name:State of Utah, Appellee, v. Santana James Percival, Appellant.
Attorney:Herschel Bullen, Attorney for Appellant Sean D. Reyes and Jonathan S. Bauer, Attorneys for Appellee
Judge Panel:Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.
Case Date:May 07, 2020
Court:Court of Appeals of Utah
 
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2020 UT App 75

State of Utah, Appellee,

v.

Santana James Percival, Appellant.

No. 20180377-CA

Court of Appeals of Utah

May 7, 2020

Third District Court, Salt Lake Department The Honorable Mark S. Kouris No. 151903580

Herschel Bullen, Attorney for Appellant

Sean D. Reyes and Jonathan S. Bauer, Attorneys for Appellee

Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.

POHLMAN, JUDGE:

¶1 Santana James Percival was the only person seen with a knife during a brawl that broke out at a party attended by numerous gang members. In the melee, four people were stabbed, including one victim who suffered life-threatening stab wounds to his heart and lung. Percival appeals his convictions for aggravated assault resulting in serious bodily injury, a second-degree felony, and aggravated assault, a third-degree felony. He claims that his trial counsel was constitutionally ineffective in failing to request a special verdict form to ensure jury unanimity regarding the victim of the third-degree-felony aggravated assault. He also claims that the district court abused its discretion by admitting gang evidence. He has not shown prejudice on either claim and we therefore affirm.

BACKGROUND1

¶2 On the night of March 13, 2015, twenty-three-year-old Percival hosted a party at the third-floor apartment he shared with his seventeen-year-old girlfriend, Danielle.2 Marco and Nicholas attended the party, along with several teenagers, including Adriana, Sandra, and Carlos. There was "[a] lot of drinking" at the party.

¶3 Percival was the leader of a gang called the Sureños Villains, a subset of the Sureños gang. The party itself was "a Friday the 13th celebration party" because the number "13 is correlated with [the] Sureños." Partygoers wore "tan Dickies and white shirts," clothing associated with the gang.

¶4 Nicholas and Carlos were members of the Washington Boys gang. The Washington Boys are another subset of the Sureños gang. The Sureños Villains and the Washington Boys were friendly with each other, and both groups used blue as their gang color.

¶5 During the party, Percival and Nicholas started arguing near the bathroom. One witness thought that the argument was precipitated by Percival saying something about Nicholas's red hat, which was a color associated with a different gang, while another thought that Nicholas had criticized Percival's leadership of the Sureños Villains. In any event, Percival and Nicholas were in "each other's faces yelling back and forth."

¶6 When the argument got louder, at least two of the partygoers tried to intervene. But Percival "kept coming towards" Nicholas, trying to fight. Nicholas left the apartment and went downstairs to the ground level of the apartment building.

¶7 But the conflict did not end there. Percival ran down the stairwell and "tackled" Nicholas on the grass. They started punching each other. Carlos then saw Percival stab Nicholas with a knife he observed in Percival's hand. Nicholas fell to the ground, and Adriana and Sandra saw that he was bleeding from his chest.

¶8 Adriana tried to pick up Nicholas, turning her back to Percival. Adriana then felt Percival "hit [her] in the back" and felt a "numb feeling" in the side of her hip. Although she did not immediately realize that she had been stabbed, Adriana knew that Percival struck her. Sandra also saw Percival hit Adriana in the side and Sandra tried to stop Adriana's bleeding.

¶9 Also while Percival was hitting Nicholas, who was on the ground, Danielle approached Percival and put her hand on his back. She then felt "hits" to her face and stomach without seeing who hit her and she "blacked out." But Adriana and Sandra both saw Percival fall on top of Danielle.

¶10 Percival resumed hitting Nicholas, who was still on the ground and bleeding. Marco joined Percival, and the two "started kicking" and continued punching Nicholas.

¶11 Eventually, Adriana, Sandra, and Carlos helped get Nicholas into a car so that they could take him to the hospital. Nicholas's injuries required emergency lifesaving measures, including CPR and surgery. He had two penetrating wounds to his chest, which caused his lung to collapse and created a hole and bleeding in his heart. Although Nicholas survived his injuries, he suffered permanent cognitive impairment.

¶12 The police were contacted and they investigated at the hospital and at the apartment complex. They discovered that, in addition to Nicholas, three other individuals had stab wounds. Adriana was wounded in her left hip, Danielle had two stab wounds to her shoulder and back, and Marco had a small stab wound to his lower leg. They also observed that Percival had blood on his clothes and injuries on his right hand, including to the base of his thumb and to the "web" between his thumb and forefinger.

¶13 The partygoers, however, were less than forthcoming about the events of the evening. Expecting that the police would be called, Adriana, Sandra, and Carlos "all decided to lie" because, among other things, they thought they "were going to get locked up" because they had been drinking at a party while underage and "ended up fighting." In keeping with their plan, Adriana and Sandra later told police that "a black guy came towards" them near a high school and stabbed Nicholas. They both admitted at Percival's trial that this story was a lie.

¶14 The State charged Percival with one count of attempted murder or, alternatively, second-degree-felony aggravated assault resulting in serious bodily injury (Count One) for his acts against Nicholas. It also charged him with one count of aggravated assault as a third-degree felony (Count Two) for the other stabbings.

¶15 The case proceeded to a four-day jury trial. Adriana, Danielle, Sandra, and Carlos testified about the altercation. Although Sandra testified "there was something in [Percival's] hand" that she "assumed" was a knife because "it looked like a knife" and she saw bleeding, Carlos was the only witness who specifically testified that he saw the knife in Percival's hand. But Adriana, Sandra, and Danielle testified that they had seen Percival with a knife on other occasions. Adriana testified that shortly before the day of the party, Percival showed her his yellow pocketknife, "flipping it open and stuff." Sandra had also witnessed Percival show off a switchblade pocketknife. And Danielle testified that Percival kept a knife in his right pocket.

¶16 Throughout trial, the defense repeatedly objected to the introduction of evidence of Percival's gang membership and activity and evidence of other aspects of gang activity. The defense argued that the gang evidence was, among other things, irrelevant and unfairly prejudicial. The...

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