State v. Sandoval

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                           Appellee,
                              v.
                    RICKY EUGENE SANDOVAL,
                           Appellant.

                             Opinion
                         No. 20220620-CA
                     Filed December 19, 2024

            Seventh District Court, Price Department
                The Honorable Jeremiah Humes
                         No. 211700469

       Freyja Johnson, Rachel Phillips Ainscough, and Anna
                 Grigsby, Attorneys for Appellant
               Sean D. Reyes and Jonathan S. Bauer,
                     Attorneys for Appellee

     JUDGE AMY J. OLIVER authored this Opinion, in which
 JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
                         concurred.

OLIVER, Judge:

¶1      A jury convicted Ricky Eugene Sandoval on one count of
forcible sexual abuse. Sandoval appeals that conviction on the
ground of ineffective assistance of counsel. Specifically, Sandoval
contends that his trial counsel (Counsel) rendered constitutionally
ineffective assistance (1) by stipulating to the admission of text
messages between Sandoval and the victim’s mother that he
claims were not properly authenticated and (2) by failing to object
to witness statements that he claims were unfairly prejudicial. We
reject these arguments and affirm his conviction.
                         State v. Sandoval


                        BACKGROUND 1

¶2     Robyn 2 and her mother (Mother) lived together in a house
they rented from a landlord (Landlord). Another woman (Friend)
lived with them, sleeping on the living room couch. Sandoval was
a friend of both Mother and Landlord and had put them in touch
when Mother and Robyn were looking for a place to live.

¶3     Landlord tried to evict Robyn and Mother for their failure
to pay rent. When they refused to leave, Landlord took
“inappropriate” steps to remove them that resulted in Robyn and
Mother obtaining a civil protective order against him. Robyn and
Mother continued to live in the house without paying rent. On
December 30, 2020, and again on February 10, 2021, Landlord
served Robyn and Mother with a three-day notice to vacate for
criminal nuisance. Amid these tensions between Landlord and his
tenants, Sandoval visited the residence a few times, “hanging out”
or picking up Landlord’s personal property for him.

¶4     On the evening of February 11, 2021, Sandoval had been in
and out of the house so many times to get Landlord’s belongings
that Friend eventually left the door unlocked so she could sleep
uninterrupted on the couch. Around 2:00 a.m., Robyn awoke in
her bedroom to find her tank top and bra pushed up and Sandoval
fondling her exposed breasts. Although she was “half asleep and
waking up,” Robyn yelled at him multiple times to “stop.”
Sandoval stopped touching her when Friend walked in. Friend
had heard Robyn repeatedly telling someone to “stop,” and when
Friend opened the door to Robyn’s room, she saw Sandoval trying


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, 

, 

.

2. A pseudonym.


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                        State v. Sandoval


to hide behind the door. Friend returned to the couch, and
Sandoval followed and sat next to her. Friend asked Sandoval
what he was doing in Robyn’s room, and his response was to “just
tell [her] that she was dreaming.” Mother was asleep in her
bedroom next to Robyn’s when she heard Robyn “hollering.” By
the time she got dressed to see what was going on, she saw
Sandoval in the family room talking with Friend. Mother went
and talked to Robyn, who told her about the assault, and then
Mother went back to the family room and confronted Sandoval.

¶5     A few days later, Robyn reported the sexual assault, and
an officer (Officer) came to the house in response. When Officer
took Mother’s statement, Mother told him that a week or two
before Robyn’s assault, Sandoval had similarly assaulted her in
the night. Mother “woke up to him fondling [her] breasts” over
her clothes. She asked what he was doing, and he said “nothing”
and that she “must have been dreaming.” Officer took written
statements from Robyn, Mother, and Friend, passing them along
to the detective (Detective 1) assigned to the case.

¶6     On March 10, Detective 1 met with Robyn and Mother. He
suggested they try “pretext messaging,” which he explained is a
common investigatory technique used by law enforcement, to
communicate with Sandoval about Robyn’s assault. Robyn did
not have a phone, nor did she feel comfortable interacting with
Sandoval, so Mother used her phone and pretended to be Robyn.
During the meeting with Detective 1, she texted, “Hey, is this
Rick?” and waited for him to reply. When over an hour passed
and Sandoval had not responded, Detective 1 ended the meeting,
instructing Mother that if Sandoval replied, she “[couldn’t] lead
him” but she should “just see what he’ll say.”

¶7     On March 15, Mother called Detective 1, saying that
Sandoval had replied and she had been texting with him over the
last few days about the incident. She wanted to show Detective 1
the texts, so he met with her to review the texts. As Detective 1



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                         State v. Sandoval


testified, he did not instruct Mother “exactly what to say” and
thought she “went rogue a little bit with this pretext thing.”

¶8     The text exchange centered on small talk for the first couple
of days, with Sandoval asking if Robyn and Mother still lived at
Landlord’s house and updating them on where he was currently
living. Then Mother—posing as Robyn the entire time—and
Sandoval texted as follows:

       [Mother]: By the way, sorry I hollered when you
       came in my room the other day, you woke me from
       a sound sleep and I didn’t know what you were
       doing . . . I’ve never been woken up like that before
       is that why you stopped because I hollered if it was
       [I’m] sorry you shouldn’t have stopped!!

       [Sandoval replying the following night]: You at
       home tonight?

       [Mother]: Nope not tonight, sorry[.]

       ....

       [Mother]: You know what you did when you tried
       to wake me up or you didn’t try to wake me up. . .

       [Sandoval]: You woke as I had just got there, ask
       [F]riend on the couch.

       [Mother]: She told me she found you in my room
       and the door was locked so you had to have jimmied
       it to come in she said she heard me say stop and
       when she walked in . . . you were standing there and
       she asked you what you [had] done you told her if I
       ask to tell her I was dreaming . . . but we both know
       I wasn’t dreaming




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                        State v. Sandoval


      [Sandoval]: Didn’t happen, door was shut but not
      locked, promise!

      ....

      [Mother]: I’ve never been awakened that way
      before. But you didn’t need to stop once I woke up
      and got my bearings and realized what was going
      on.

      [Sandoval]: Really??? Not even true

      ....

      [Mother]: You were in my room after all[.]

      [Sandoval]: Yes and you were sleeping!

      [Mother]: Yeah I know I was until you woke me up
      very interesting wake up call I have to admit

      [Sandoval]: I guess, you didn’t say nothing!

      ....

      [Mother]: Enough of the games. You know you
      touched me in an inappropriate manner

      [Sandoval]: There’s no way and this is not a game,
      thank you very much!

¶9     Detective 1 photographed the texts and Sandoval’s contact
page on Mother’s phone. He then verified Sandoval’s phone
number with a “[c]ounty document” in which “Sandoval had put
that [same] number down as his personal contact number.”
Detective 1 also confirmed the “messages were sent between
March 10th and March 15th” and explained he had “correlate[d]




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                          State v. Sandoval


the days of the week” on the photographed texts with the dates to
make that determination.

¶10 The State charged Sandoval with one count of forcible
sexual abuse based on the allegation made by Robyn. His case
proceeded to a jury trial. Before testimony was presented, the
parties and the court engaged in a colloquy about the admission
of exhibits. Counsel stipulated to the admission of numerous State
exhibits, including the photographs of the text exchange on
Mother’s phone.

¶11 In addition to testimony about the incidents and
investigation as described above, the State elicited testimony from
Friend that, later on the same night of Robyn’s assault, Friend
woke up to find Sandoval standing by the couch with his exposed
penis “right in [her] face.” She told Sandoval, “I’m not into that.”
On cross-examination, Counsel asked Friend about her failure to
tell the police about Sandoval exposing himself to her. Friend
admitted she had not told Officer about Sandoval exposing
himself but said she had included it in the written statement she
completed. Friend also testified she was not certain whether
Sandoval exposed his penis to her before or after Robyn’s assault,
but it was sometime that night.

¶12 When Mother testified, she went into detail about the
uncharged incident in which Sandoval allegedly touched her
breasts. She acknowledged some of the details of her alleged
assault were “fuzzy,” such as whether she rolled over and then
said something to Sandoval after he touched her breasts or what
she even said to him. But when asked why she recalled “him
touching [her] breast . . . so vividly,” she said that it was because
she was “not used to a man fondling” her. And when asked how
it made her feel, she responded, “Violated.” The State then asked
Mother about her experience texting Sandoval and “[w]hat was
going through [her] mind as [she was] sending those text




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                          State v. Sandoval


messages.” She replied, “He’s dodging my questions. He’s not
answering them truthfully.”

¶13 Finally, the State called as a witness a detective (Detective
2) who assisted Detective 1 in the investigation. He described how
Robyn was “very concerned” about Sandoval returning to the
house and “didn’t feel protected” “with him being at large,” so
Detective 2 and Robyn created “a safety plan,” which, as he
explained, is “a very common thing to do” “when there’s an
allegation.” The plan included Robyn and Mother being “aware
of [their] surroundings” and calling 911 if Sandoval “arrive[d]
unwanted,” and officers being notified “that there could be a
concern” regarding Sandoval and to “take it seriously.” The State
asked whether the safety plan was ever triggered by Sandoval
returning to the house, and Detective 2 said that while the
detectives received calls of general worry about why Sandoval
was “not being dealt with,” Robyn and Mother did not report
anything “specific about him going to the residence,” and no
“official action” had to be taken in response to those phone calls.

¶14 Sandoval presented no witnesses. In closing, the State said
the text messages were important “because [in them, Sandoval]
admits to being in her bedroom while she is sleeping.” During
Counsel’s closing, he focused on discrepancies in and between
Robyn’s, Mother’s, and Friend’s testimonies. Counsel also
emphasized Landlord’s efforts to evict Robyn and Mother,
arguing that “context matters” because Robyn and Mother “were
this close to being on the streets and they lashed out at anybody
who was perceived to be in cahoots with [Landlord].”

¶15 The jury was instructed that any evidence they had heard
about Sandoval making “sexual acts or advances toward other
individuals who have testified . . . was not admitted to prove a
character trait . . . or to show that he acted in a manner consistent
with that trait.” The instruction went on to explain that the jury
could, however, “consider this evidence, if at all, for the limited



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                         State v. Sandoval


purpose of opportunity, plan, or intent to commit the crime
alleged to have [been] committed against [Robyn].”

¶16 After deliberation, the jury returned a verdict finding
Sandoval guilty of one count of forcible sexual abuse. The trial
court later sentenced Sandoval to a suspended prison term of one
to fifteen years and imposed forty-eight months of probation and
105 days of jail time.


             ISSUE AND STANDARD OF REVIEW

¶17 Sandoval contends that Counsel rendered constitutionally
ineffective assistance. “When a claim of ineffective assistance of
counsel is raised for the first time on appeal, there is no lower
court ruling to review and we must decide whether the defendant
was deprived of the effective assistance of counsel as a matter of
law.” State v. Whytock, 

, 

(cleaned up).


                           ANALYSIS

¶18 Sandoval asserts Counsel rendered constitutionally
ineffective assistance in two ways. First, Sandoval contends
Counsel should not have stipulated to the admission of the text
messages between Sandoval and Mother because they “were not
properly authenticated and lacked appropriate foundation.”
Second, Sandoval contends Counsel rendered ineffective
assistance by failing to object to three separate statements by
prosecution witnesses that he claims were unfairly prejudicial.

¶19 To establish ineffective assistance of counsel, a defendant
must meet the two-prong test set forth in Strickland v. Washington,

 (1984). “First, the defendant must show that counsel’s
performance was deficient.” 

. To prove deficient
performance,      Sandoval       must    demonstrate     Counsel’s



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                         State v. Sandoval


“representation fell below an objective standard of
reasonableness.” Id. at 688. The deficient performance inquiry
“should focus on whether counsel’s assistance was reasonable
considering all the circumstances,” and it “must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” State v. Gallegos, 

, 

 (cleaned up). “Second, the defendant must
show that the deficient performance prejudiced the defense.”
Strickland, 

.

¶20 Because “[a] defendant must satisfy both parts of this test
in order to successfully establish ineffective assistance,” State v.
Whytock, 

, 

, “if we determine
that a defendant has made an insufficient showing on one
component, we need not address the other,” State v. Cabututan,

, 

 (cleaned up). Here, both of
Sandoval’s ineffective assistance claims fail under the first prong.

                       I. The Text Messages

¶21 Sandoval contends Counsel’s stipulation to the admission
of the text messages constitutes ineffective assistance because the
text messages were unauthenticated. We disagree. Specifically,
Sandoval cannot show it was deficient performance for Counsel
to stipulate to the admission of the text messages; the texts would
have been admissible even if Counsel had not stipulated to admit
them.

¶22 “To satisfy the requirement of authenticating or identifying
an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent
claims it is.” Utah R. Evid. 901(a). Thus, a party seeking to
introduce “writings or other documentary evidence must
authenticate the evidence before it can be admitted.” State v.
Welsh, 

, 

 (cleaned up), cert.
denied 

 (Utah 2023). However, “proper



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                         State v. Sandoval


authentication does not require conclusive proof”; instead, “the
proponent has to make only a prima facie showing of
authenticity.” 

 (cleaned up).

¶23 Although Utah’s courts have had relatively few
opportunities “to consider the foundational requirements that
must be met in order for text messages to be admitted,” State v.
Otkovic, 

, 

, when they have, they
have joined “a number of other jurisdictions” that allow text
messages to be authenticated by circumstantial evidence, 

 For
example, in State v. Otkovic, we held that “the State met its burden
to make a prima facie showing of authenticity” by “presenting
evidence that the phone from which the text messages originated
belonged to [the defendant] and that he had possession of it at the
time the messages were sent.” Id. ¶ 23. Specifically, the evidence
showed that the texts in question “were sent from the phone
number assigned” to a phone found in the defendant’s apartment,
that the phone matched a witness’s description of the phone he
saw the defendant use during the crime, and that “the [crime]
occurred during the same time frame when the text messages
were sent.” Id.

¶24 Similarly, in State v. Welsh, we held that the State’s “several
pieces of evidence,” such as the “timing and content” of the
messages, “when combined, were sufficient to support a finding
that [the defendant] authored the texts.” 

. The timing of the messages, for instance, supported a finding
that the defendant had sent them because they were sent just a
few hours after the defendant “broke into [the victim’s] apartment
and tried to tie her up” and the content of the messages included
“information that was particular to” their relationship and “to
things that had happened that evening involving” the defendant.

 ¶¶ 44–45. Thus, we concluded that “[t]hese corroborative
circumstances supported a finding that [the defendant] had sent
the texts.” Id. ¶ 45.




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                          State v. Sandoval


¶25 Here, the timing of the messages is less clear than in Welsh,
particularly since the photographed texts do not include any
dates. But they do include days of the week and times that,
together with Detective 1’s testimony that he “correlate[d] the
days of the week with the dates” and determined the “messages
were sent between March 10th and March 15th,” make it possible
to piece together the timing. The messages also contain details
about the parties’ relationship—where and with whom they live,
for example—and about the events of the night in question that
only Sandoval, Robyn, Mother, and Friend would have known.
Moreover, Detective 1 testified he photographed the texts and
Sandoval’s contact page on Mother’s phone. See Utah R. Evid.
901(b)(1) (listing “[t]estimony that an item is what it is claimed to
be” as an example “of evidence that satisfies the requirement” of
authentication). And Detective 1 testified that he verified that the
texts to Mother came from Sandoval’s phone number by locating
a “[c]ounty document” on which Sandoval had put the same
“number down as his personal contact number.” In light of “these
corroborative circumstances” that “supported a finding that
[Sandoval] had sent the texts,” see Welsh, 

,
reasonable counsel could have chosen not to challenge their
authenticity, see State v. Kufrin, 

, 

(concluding it was not deficient performance for trial counsel to
not make an objection that “would have been a futile exercise”).
Therefore, Sandoval has not “overcome the presumption” that
Counsel’s decision to stipulate to their admission “might be
considered sound trial strategy.” State v. Lee, 

,

 (cleaned up).

¶26 In sum, the text messages would have been admitted into
evidence even if Counsel had not stipulated to their admission
and instead raised an objection to their lack of authentication. 3


3. Repeatedly, Sandoval’s briefing faults not just Counsel for
stipulating to the admission of the texts but also the State for “not
                                                      (continued…)


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                         State v. Sandoval


Accordingly, we conclude Counsel did not perform deficiently
and that this claim of ineffective assistance therefore fails.

                   II. The Rule 403 Statements

¶27 Sandoval also asserts Counsel rendered ineffective
assistance by failing to object under rule 403 of the Utah Rules of
Evidence to the following three statements:

   1. Mother’s statement that she felt “Violated” when Sandoval
      touched her breasts.

   2. Mother’s statement that while texting Sandoval, she
      thought: “He’s dodging my questions. He’s not answering
      them truthfully.”

   3. Detective 2’s statement that he developed “a safety plan”
      with Robyn and Mother to help them feel safe from
      Sandoval.

We hold that because none of these statements’ probative value is
substantially outweighed by the danger of unfair prejudice, see



lay[ing] an adequate foundation authenticating that [Sandoval]
had authored the text messages.” The State, however, argues
Sandoval cannot challenge the lack of foundational evidence
“when any lack of formal evidence is the direct result of his own
stipulation.” We agree with the State. Generally, “courts are
bound by stipulations between parties” and “parties are bound
by their stipulations.” Yeargin, Inc. v. Auditing Div. of Utah State
Tax Comm’n, 

, 

 (cleaned up). Here, the
State “was relieved of the burden” of establishing the text
messages’ authenticity “because the parties stipulated” to their
admission. State v. Chadwick, 

, 

. Thus,
Sandoval cannot now challenge the lack of formal foundational
evidence when his stipulation caused it in the first place.


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                          State v. Sandoval


Utah R. Evid. 403, Counsel did not perform deficiently by failing
to make rule 403 objections to any of these statements.

¶28 “Relevance is a very low bar for the admission of
evidence.” State v. Swearingen, 

, ¶ 11, 

 (cleaned up). “Evidence is relevant if: (a) it has any tendency
to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the
action.” Utah R. Evid. 401. But relevant evidence may be excluded
“if its probative value is substantially outweighed by a danger of
. . . unfair prejudice” or “misleading the jury.” 

 R. 403. Under
rule 403’s balancing test, “evidence is only unfairly prejudicial if
it creates an undue tendency to suggest decision on an improper
basis.” Swearingen, 

, ¶ 20 (cleaned up).

¶29 Statement 1. Sandoval claims Mother’s statement about
feeling “Violated” had little probative value and essentially asked
the jury to decide Sandoval’s guilt on a “forbidden propensity
inference.” See Utah R. Evid. 404(b)(1) (prohibiting other-acts
evidence from being admitted “to prove a person’s character in
order to show that on a particular occasion the person acted in
conformity with the character”). We disagree.

¶30 In the written jury instructions, the jury was instructed that
any evidence they had heard about Sandoval making “sexual acts
or advances toward other individuals who have testified . . . was
not admitted to prove a character trait . . . or to show that he acted
in a manner consistent with that trait.” They could, however,
“consider this evidence, if at all, for the limited purpose of
opportunity, plan, or intent to commit the crime alleged to have
[been] committed against [Robyn].” And so the State was allowed
to present Mother’s testimony about Sandoval fondling her
breasts as she slept in her bed for the narrow purpose of showing
Sandoval had the opportunity, plan, and intent to do the same to
Robyn. Furthermore, the statement was made in the context of
clarifying Mother’s memory of the incident. After Mother testified



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                         State v. Sandoval


that some of the details of what she said or did after the assault
were “fuzzy” to her, the State asked her why she recalled “him
touching [her] breast . . . so vividly” and how she felt when it
happened. Mother stated that she “was not used to a man
fondling” her and it made her feel “Violated,” thus explaining
why she recalled Sandoval touching her breasts but not other
details of the incident.

¶31 Against this backdrop, Counsel did not perform deficiently
by not raising a rule 403 objection to Mother’s statement she felt
“Violated.” Counsel knew the jury would be instructed on how to
consider the other-acts evidence about Sandoval, and Mother’s
comment explaining her memory was “brief” and “quickly
passed over by the State.” See State v. Hulse, 

, 

. Thus, it “is conceivable that a competent
attorney would have chosen not to draw the jury’s further
attention to the fleeting exchange by objecting to its content.” 

¶32 Statement 2. Sandoval contends Mother’s speculation that
he was “dodging [her] questions” and “not answering them
truthfully” violated rule 403 because it went beyond Mother’s
personal knowledge and had little probative value. 4 We disagree.

¶33 Mother’s statement was made when the State asked
Mother what she was thinking as she and Sandoval texted each
other. Hence, Mother was testifying about what was going
through her mind, not Sandoval’s, so her testimony about her state
of mind when she was texting lands squarely in the realm of
personal knowledge rather than speculation that could mislead
the jury. Moreover, Mother was there the night of the assault and


4. Sandoval also argues this statement violates rule 608 of the Utah
Rules of Evidence, which prohibits “any testimony as to a
witness’s truthfulness on a particular occasion.” State v. Lewis,

, 

 (cleaned up). However,
Sandoval did not testify at trial, making rule 608 inapplicable.


 20220620-CA                    14              

                        State v. Sandoval


knew about its details from Robyn and Friend. Thus, a rule 403
objection by Counsel would have likely been unsuccessful,
making it “sound strategy for Counsel to let that statement go
rather than to draw unwanted attention to it with an objection.”
State v. Goodall, 

, 

.

¶34 Statement 3. Sandoval argues Detective 2’s statement that
he developed “a safety plan” with Robyn and Mother to help
them feel safe from Sandoval violated rule 403 by encouraging
“the jury to convict on the emotional basis of sympathy for the
women.” We are unconvinced that this brief statement by
Detective 2 created “an undue tendency to suggest decision on an
improper basis,” Swearingen, 

, ¶ 20 (cleaned up),
particularly when it was immediately followed by Detective 2’s
explanation that safety plans are commonly created after assault
allegations are made. Consequently, Counsel did not have
grounds to successfully object to the statement and did not render
deficient performance by not doing so. Furthermore, Counsel
may have had a strategic reason to allow the statement, such as
the fact that Sandoval never returned to the house. As it
happened, the State drew attention to this favorable fact for
Sandoval in its direct examination of Detective 2 when it asked
whether Sandoval had returned to the house and Detective 2
responded that, to the best of his knowledge, he had not.
Accordingly, reasonable counsel could have chosen to allow
Detective 2’s mention of a safety plan to go unopposed, and we
cannot say it was deficient performance for Counsel to do the
same.

¶35 To summarize, each of these three statements was
admissible under rule 403, making it unlikely that any objection
by Counsel would have succeeded. Additionally, strategic
reasons existed as to why Counsel did not object to them.
Therefore, Sandoval’s claim of ineffective assistance on each
statement fails.




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                         State v. Sandoval


                         CONCLUSION

¶36 Counsel’s conduct in stipulating to the admission of the
text messages and in not objecting to certain witnesses’ statements
under rule 403 did not amount to deficient performance. Thus,
Sandoval’s claims of ineffective assistance fail, and we
accordingly affirm his conviction.




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