2016 UT App 209

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

FRANKIE JUSTIN SISNEROS,

Appellant.

Opinion

No. 20140778-CA

Filed October 14, 2016

Third District Court, Salt Lake Department

The Honorable Katie Bernards-Goodman

No. 131904336

John B. Plimpton, Neal G. Hamilton, and Alexandra 

S. McCallum, Attorneys for Appellant

Sean D. Reyes and Jeanne B. Inouye, Attorneys

for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES

J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.

TOOMEY, Judge:

¶1 In this appeal we must decide whether the district court 

denied Frankie Justin Sisneros (Defendant) due process by

denying his motion to strike a show cause hearing and whether 

it abused its discretion in denying a continuance of the same 

hearing. We conclude it did not and affirm.
State v. Sisneros

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BACKGROUND1

¶2 Between 2011 and 2013, in three separate cases, Defendant 

was convicted of escape, possession of a controlled substance 

with intent to distribute, and attempted robbery and retaliation 

against a witness or victim, all third degree felonies. Following 

the conviction for attempted robbery and retaliation against a 

witness or victim in 2013, the district court placed Defendant on 

zero-tolerance probation. The terms of Defendant’s probation 

included orders to violate no laws and to refrain from possessing 

or consuming any alcohol.

¶3 Around 5:30 in the morning on January 19, 2014, 

Defendant went to the home of his ex-wife’s (Ex-wife) mother 

(Mother) to retrieve some work tools. Accounts differ as to what 

happened next. According to Ex-wife and Mother, Defendant 

came to the door, pushed past Mother, and crossed the living 

room to where Ex-wife was sleeping on the couch. Defendant 

started yelling at Ex-wife and hit her. Defendant grabbed her by 

the hair, the two started ‚wrestling,‛ and Defendant again hit 

Ex-wife. Defendant also pushed Ex-wife onto Mother’s coffee 

table, which broke. As a result of the scuffle, Ex-wife suffered a 

swollen lip and bloody nose. Defendant grabbed Ex-wife’s keys 

to their jointly owned vehicle and drove it away. 

¶4 According to Defendant, he arrived at Mother’s house

and she allowed him inside. He woke Ex-wife to ask for her 

keys, and she started hitting him. Defendant claims Ex-wife and 

Mother ‚wrapped‛ and hit him. They ripped off his shirt and he 

ran out with the keys and left in the vehicle.

 

1. ‚On appeal from a jury verdict, we view the evidence and all 

reasonable inferences in the light most favorable to that verdict 

and recite the facts accordingly.‛ State v. Dozah, 2016 UT App 13, 

¶ 2, 368 P.3d 863. ‚We include conflicting evidence as relevant 

and necessary to understand the issues on appeal.‛ Id.
State v. Sisneros

20140778-CA 3 2016 UT App 209

¶5 Mother called the police, who arrived to investigate. A 

police dispatcher advised a patrol officer that Defendant had 

been seen driving down the highway and described the vehicle. 

Based on this information, the officer stopped Defendant and 

questioned him. According to the officer, Defendant was 

belligerent and smelled of alcohol. The officer asked Defendant 

if he had been drinking, and Defendant responded that ‚he had 

a few beers.‛ The officer took Defendant to the police station and 

submitted him to a breathalyzer test, which revealed a blood 

alcohol content of 0.114 grams.

2

¶6 On January 22, 2014, Adult Probation and Parole (AP&P) 

requested that the district court issue an order to show cause 

why Defendant’s probation should not be revoked. In support of 

this motion, AP&P alleged that Defendant had violated the 

terms of his probation by committing, among other things,

domestic violence assault, assault, and driving under the 

influence of alcohol. The court issued the Order to Show Cause 

that same day and set a hearing for March 21, 2014. The hearing 

was continued to May 16, then to June 27, and finally to August 

1, 2014.

¶7 On June 12, 2014, Defendant’s counsel sent a subpoena to 

the North Salt Lake Police Department (NSLPD), requesting the 

‚production of all field cards[3] and video‛ related to the 

 

2. Utah Code section 41-6a-502 prohibits driving or being in 

‚actual physical control of a vehicle‛ with a blood alcohol 

concentration of 0.08 grams or greater. Utah Code Ann. § 41-6a502 (LexisNexis 2014).

3. A field card ‚is a limited informational report filled out by 

the police offer. The report contains information on suspicious 

persons questioned. It includes descriptions of [the] 

individual and vehicle, time and place of contact, and reason for 

suspicion.‛ Field Interrogation Reports, Utah Dep’t of Admin. 

(continued...)
State v. Sisneros

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allegations supporting the Order to Show Cause. The NSLPD 

responded with a letter indicating there were ‚no field cards 

associated with this case‛ and ‚no video involving Mr. 

Sisneros.‛ In mid-July, Defendant filed a motion to strike the 

show cause hearing. Defendant explained he was ‚not asking to 

strike the [Order to Show Cause]‛; rather, he requested to 

‚merely strike the hearing and track the new charges[4] until they 

resolve, and this issue is fully and fairly litigated.‛ Defendant 

asserted that because the NSLPD had not provided the 

requested documents, he might not ‚*have+ available to him all 

the evidence pertaining to the underlying charges at issue.‛ 

Specifically, he explained that there was a ‚testy exchange‛ 

during a follow-up telephone call between counsel’s secretary 

and the NSLPD, and that it was therefore ‚entirely possible that 

videos might exist,‛ but that the NSLPD would not look for 

them ‚because they were annoyed with defense counsel’s 

secretary.‛ Defendant argued that holding the hearing ‚before 

the resolution of these concerns regarding NSLPD would raise 

due process concerns‛ because he had ‚no confidence that he 

ha[d] received, or [would] receive, all of the information due 

process requires.‛

¶8 The district court did not rule on Defendant’s motion to 

strike but held the hearing on August 1, 2014. At the outset of 

the hearing Defendant’s counsel stated,

 

(...continued)

Servs., http://archives.utah.gov/recordsmanagement/grs/mungrs

-21.html#30245 [https://perma.cc/95UU-SMW7]. 

4. The State did not file an Information with new charges based 

on these events. The hearing was held on AP&P’s allegations of 

probation violations.
State v. Sisneros

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I know we’ve made a record of my previous 

objection but there is a new thing[] that [has] come 

up.

We sent out a subpoena in July, the 2nd, 

asking for North Salt Lake to produce their policies 

and procedures. Particularly, recording—having 

video in patrol vehicles and what officers are 

required to do if their video is not working. That 

was due mid-July. We have not seen hide nor hair 

from that subpoena.

Counsel confirmed with the court that this request was ‚in 

[reference to] the same DUI,‛ and the court responded that it 

would ‚consider all of that if we . . . have to even get to [that] 

charge.‛

¶9 During the hearing, the NSLPD officer who stopped

Defendant on the highway testified that Defendant was 

aggressive and belligerent, that he ‚could smell the odor of 

alcohol on [Defendant],‛ and that Defendant told him ‚that he 

had a few beers.‛ Following direct examination of the officer, 

defense counsel declined to cross-examine him because of the 

‚evidentiary‛ objection he had made at the outset of the hearing. 

The State subsequently moved to withdraw the DUI allegation to 

amend the Order to Show Cause ‚just to include the allegation 

that [Defendant] consumed alcohol, not that he was DUI.‛ The 

district court then questioned the officer, asking him about the 

video equipment in the police vehicle. After explaining that the 

video equipment ‚flicks itself on‛ when the overhead lights are 

activated, the officer testified that he had assumed the recording 

equipment ‚was on‛ during the stop. But when the officer 

personally pulled out the DVD that should have contained the 

recording, he ‚could never find the video.‛ Consequently, the 

officer believed the video equipment never turned on.

¶10 During the hearing, Ex-wife and Mother also testified. Exwife gave her account of the assault, see supra ¶ 3, and testified 
State v. Sisneros

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she could tell Defendant was intoxicated. She confirmed she had 

seen Defendant intoxicated many times during their twelve-year 

relationship and described Defendant’s typical appearance and 

behavior when he is intoxicated. Specifically, she testified that he 

had ‚slurred speech,‛ ‚bloodshot red eyes,‛ was ‚belligerent,‛

and if also angry when intoxicated, would ‚pace back and 

forth.‛ Ex-wife further testified that she could tell Defendant was 

intoxicated the morning of the assault because he had red eyes, 

he was stumbling and pacing back and forth, smelled like 

alcohol, and ‚was belligerent.‛ Mother testified she tried to 

break up the scuffle and Defendant kicked her in the leg.

¶11 Defendant also testified at the hearing and gave his 

account of his interaction with Ex-wife and Mother. See supra ¶ 4.

He testified that a friend drove him to Ex-wife’s house. He 

denied drinking alcohol the night before the incident and denied

telling the officer that he had been drinking. But when 

questioned about the breathalyzer test, he acknowledged that he 

‚blew a .114‛ ‚*i+f it says I did.‛

¶12 Following Defendant’s testimony, defense counsel asked 

the court for a continuance so that he could contact Defendant’s 

friend as a witness. Counsel acknowledged that he ‚didn’t pay 

as much attention to her as [he] probably should have‛ but ‚she 

might have been in the apartment and seen what occurred.‛ The 

district court denied the request because the hearing had already 

‚been continued repeatedly.‛

¶13 At the conclusion of the hearing, the district court found 

that Defendant violated his probation by ‚having consumed 

alcohol‛ and ‚having committed [domestic violence] assault 

against [Ex-wife+.‛ The court stated it could ‚come to those two

conclusions . . . based on [Ex-wife’s+ testimony alone. And then 

. . . the other testimony just corroborates it.‛ The court then 

revoked Defendant’s probation and sentenced him to prison for

‚all of his cases.‛ Defendant appeals.
State v. Sisneros

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ISSUES AND STANDARDS OF REVIEW

¶14 On appeal, Defendant contends the district court violated 

his due process rights by denying his motion to strike the show 

cause hearing and holding the hearing because it ‚deprived 

[Defendant] of an opportunity to present documentary evidence 

that could have helped his case.‛ ‚Constitutional issues, 

including questions regarding due process, are questions of law 

that we review for correctness. . . . However, because [these 

questions require] the application of facts in the record to the 

due process standard, we incorporate a clearly erroneous 

standard for the necessary subsidiary factual determinations.‛ 

Salt Lake City Corp. v. Jordan River Restoration Network, 2012 UT 

84, ¶ 47, 299 P.3d 990 (omission and alteration in original) 

(citation and internal quotation marks omitted).

¶15 Defendant also contends the district court erred in 

denying his ‚request for a continuance [during the hearing] to 

locate . . . a witness who may have corroborated *Defendant’s+ 

testimony.‛ ‚*T+he granting of a continuance is at the discretion 

of the trial judge, whose decision will not be reversed by [an 

appellate] [c]ourt absent a clear abuse of that discretion.‛ State v. 

Creviston, 646 P.2d 750, 752 (Utah 1982). ‚An appellate court may 

only find abuse if it can be said that no reasonable [person] 

would take the view adopted by the trial court.‛ State v. 

Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d 1167 (alteration in 

original) (citation and internal quotation marks omitted).5

 

5. Defendant also contends that ‚*e+ven if the . . . errors are not 

individually prejudicial, taken together they constitute 

cumulative error.‛ Because we conclude that the district court’s 

actions do not ‚amount to error,‛ ‚there was no cumulative 

error in this case.‛ See State v. Killpack, 2008 UT 49, ¶ 56, 191 P.3d 

17.
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ANALYSIS

I. The District Court Did Not Err in Denying Defendant’s Motion 

to Strike the Hearing.

¶16 Defendant contends ‚the district court violated *his+ due 

process rights‛ when ‚it denied his motion to strike the [order to 

show cause] hearing‛ because ‚*d+oing so deprived *Defendant+ 

of an opportunity to present documentary evidence that could 

have helped his case.‛ Specifically, he argues ‚a video recording 

might have existed that may have provided evidence that 

[Defendant] was not inebriated during the police stop,‛ and 

‚*p+ostponing the *order to show cause+ hearing until the 

NSLPD complied with the second subpoena would have 

substantially furthered the accuracy and reliability of the district 

court’s fact-finding process.‛6

¶17 ‚*T+he United States Supreme Court has determined that 

probation revocation proceedings . . . are entitled only to the 

‘minimum requirements of due process.’‛ State v. Orr, 2005 UT 

92, ¶ 12, 127 P.3d 1213 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 

 

6. The State argues that Defendant did not preserve this issue 

because Defendant’s motion to strike the hearing is based on the 

response to his first subpoena to NSLPD, whereas on appeal 

Defendant argues the court violated his due process rights by 

‚holding the . . . hearing before NSLPD responded to the second

subpoena‛ to NSLPD. (Emphasis added.) ‚An issue is preserved 

for appeal when it has been presented to the district court in 

such a way that the court has an opportunity to rule on *it+.‛ 

Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (alteration in 

original) (citation and internal quotation marks omitted). 

Because Defendant also objected at the hearing based on the lack 

of response to his second subpoena, the district court had an 

opportunity to rule on the issue and we determine that it is 

sufficiently preserved.
State v. Sisneros

20140778-CA 9 2016 UT App 209

786 (1973)). The ‚minimum requirements of due process‛ 

include

(a) written notice of the claimed violations of 

[probation]; (b) disclosure to the [probationer] 

of evidence against him; (c) opportunity to be 

heard in person and to present witnesses and 

documentary evidence; (d) the right to 

confront and cross-examine adverse witnesses 

(unless the hearing officer specifically finds 

good cause for not allowing confrontation); 

(e) a neutral and detached hearing body . . . ; 

and (f) a written statement by the factfinders as 

to the evidence relied on and reasons for 

revoking [probation].

Id. ¶ 20 (alterations and omission in original) (citation and 

internal quotation marks omitted). In addition, ‚There is no 

violation of due process if the evidence demonstrates only a 

mere possibility that an item of undisclosed information might 

have helped the defense, or might have affected the outcome 

. . . .‛ State v. Shabata, 678 P.2d 785, 788 (Utah 1984) (citation and 

internal quotation marks omitted).

¶18 In this case, Defendant received due process. He was 

provided written notice of the claimed violations through 

AP&P’s violation report and supporting affidavit. The hearing 

provided him the opportunity to be heard in person and to 

confront and cross-examine witnesses before a neutral and 

detached hearing body. Further, despite Defendant’s contention 

to the contrary, he was also given the opportunity to present 

witnesses and documentary evidence at the hearing. The show 

cause hearing was ordered January 22, 2014, initially scheduled 

for March 21, and continued multiple times. The hearing was not 

held until August 1, 2014, ultimately providing Defendant more 

than six months to prepare for it. Cf. State v. Terrazas, 2014 UT 

App 229, ¶ 18, 336 P.3d 594 (concluding that defendant received 
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20140778-CA 10 2016 UT App 209

due process because he was ‚notified months in advance of the 

eventual review hearing, at which he appeared and was 

represented by counsel and had an opportunity to cross-examine 

the State’s . . . witnesses . . . [and] testified in his own behalf‛).

¶19 Furthermore, it is entirely speculative whether a response 

to Defendant’s second subpoena would have produced any 

evidence and, even if it did, whether that evidence would have 

been helpful to his case. See Smith v. Cain, 132 S. Ct. 627, 635, 181 

L. Ed. 2d 571 (2012) (It is ‚a petitioner’s burden . . . to establish a 

reasonable probability of a different result.‛ (emphasis omitted) 

(internal quotation marks and citation omitted)). Defendant 

contends that ‚*a+ video recording might have existed that may

have provided evidence that [Defendant] was not inebriated 

during the police stop‛ or that could have contradicted the 

officer’s and Ex-wife’s testimonies. (Emphases added.) It is 

doubtful the evidence exists. The district court asked the officer

about the video equipment in the police vehicle. The officer 

testified he ‚could never find the video‛ despite personally 

searching for it and he consequently believed the recording 

equipment was never activated.

¶20 What is not in doubt is the result of the breathalyzer 

test—it revealed a blood alcohol content of 0.114. Defendant did 

not dispute that test result. Furthermore, Ex-wife testified that, 

based on her experience with Defendant, she believed he was 

intoxicated the morning of the assault. She also testified 

Defendant hit her multiple times and pushed her hard enough 

that she fell and broke the coffee table. The court stated it found 

Ex-wife’s testimony to be more credible than Defendant’s and it

even indicated it could conclude Defendant violated his 

probation based on her testimony alone. Defendant was on zerotolerance probation and both the assault and consumption of 

alcohol violated the terms of his probation. In sum, the district 

court had ample evidence to revoke Defendant’s probation.

¶21 Because Defendant was afforded the minimum

requirements of due process required in probation revocation 
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20140778-CA 11 2016 UT App 209

proceedings and he has not shown that the speculative evidence 

he sought would likely have changed the outcome of the 

proceeding, we conclude the district court did not violate 

Defendant’s due process rights by denying his motion to strike 

the hearing.

II. The District Court Did Not Abuse Its Discretion in Denying 

Defendant’s Request for a Continuance.

¶22 Defendant also contends the ‚district court abused its 

discretion when it denied [Defendant’s+ request for a 

continuance [during the hearing] to locate . . . a witness who 

may have corroborated *Defendant’s+ testimony.‛

¶23 The Utah Supreme Court has explained that

when a party to a criminal action ‚moves for a 

continuance in order to procure the testimony of an 

absent witness,‛ the party must demonstrate that: 

(1) ‚the testimony sought is material and 

admissible,‛ (2) ‚the witness could actually be 

produced,‛ (3) ‚the witness could be produced 

within a reasonable time,‛ and (4) ‚due diligence 

ha[d] been exercised before the request for a 

continuance.‛

State v. Cornejo, 2006 UT App 215, ¶ 15, 138 P.3d 97 (alteration in 

original) (quoting State v. Creviston, 646 P.2d 750, 752 (Utah 

1982)).

¶24 In this case, Defendant did not demonstrate that he 

exercised due diligence to ‚procure the testimony of [the] absent 

witness.‛ See id. (citation and internal quotation marks omitted).

Defendant did not explain what prior efforts he had made to 

arrange for the witness but he acknowledged at the hearing, 

‚[W]e didn’t pay as much attention to her as we probably should 

have.‛ In addition, Defendant did not fully investigate what the 

witness’s testimony would be. He speculated that ‚she might 
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20140778-CA 12 2016 UT App 209

have been in the apartment and seen what occurred [there]. We 

haven’t been able to verify that.‛

¶25 In any case, the testimony sought was not material. 

‚Testimony is material if there is a reasonable probability that its 

presence would [have] affect[ed] the outcome . . . . A reasonable 

probability is a probability sufficient to undermine the 

confidence in the outcome.‛ Id. ¶ 16 (alteration in original) 

(citation and internal quotation marks omitted). Here, any 

testimony the witness may have provided would not have 

affected the outcome of the proceeding. The district court 

indicated it had ‚no doubt [the potential witness] drove him 

there. Maybe she sat and waited for him, but she didn’t see 

anything that went on in the apartment.‛ And even if the 

potential witness observed anything that occurred within the 

apartment, as explained above, the district court had ample 

evidence to revoke Defendant’s probation. See supra ¶ 20.

Accordingly, we conclude the court did not abuse its discretion 

in denying Defendant’s request for a continuance.

CONCLUSION

¶26 We conclude the district court did not violate Defendant’s 

due process rights by denying his motion to strike the show

cause hearing. In addition, the court did not abuse its discretion 

in denying Defendant’s request to continue the hearing. 

¶27 Affirmed.