2015 UT App 189



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Plaintiff and Appell ee ,

v. I SA AC L ORENZO , Defendant and Appell ant

.
Memorandum Decision N o. 20140152

- CA Filed August 6, 2015

Fifth District Court, Cedar City Department The Honorable G. Michael Westfall

No. 131500545
Matthew D. Carling , Attorney for Appellant Sean D. Reyes and Lindsey L. Wheeler , Attorney s

for Appellee

J UDGE J. F REDERIC V OROS J R

. authored th is Memorandum Decision , in which J UDGES J AMES Z. D AVIS and J OHN A. P EARCE concurred

.

VOROS , Judge :

¶1 With his two young daughters in the car, Isaac Lorenzo led police officers on a high

- speed chase through Cedar City. He was convicted of failure to respond to an officer’s signa l, a third degree felony ; reckless endanger ment, a class A misdemeanor ; reckless dri ving, a class B misdemeanor ; and driving on a suspended or revoked driver license , a class B misdemeanor

. Lorenzo contends that insufficient evidence supported his reckless

- endangerment, reckless

- driving, and suspended

- license convictions and that his trial counsel rendered constitutionally ineffective assistance. We affirm.State v. Lorenzo

20140152

- CA 2 2015 UT App 189 BACKGROUND 1

¶2 Recognizing Lorenzo from prior encounters, a police officer stopped him for outstanding warrants and for driving with an invalid driver license. During the stop, the police officer smelled alcohol on Lorenzo’s breath and the two ‚started talking about the odo r of alcoholic beverage.‛ In response, Lorenzo took off, leading the police officer on a high

- speed chase through Cedar City.

¶3 Lorenzo sped through a residential neighborhood, ran stop signs , sped past multiple cars, and crossed in front of oncoming traffic and onto the freeway. Lorenzo then exited the freeway, turned through a busy intersection, and cut off cars as he sped toward the n orth

- bound freeway. Lorenzo then entered the north

- bound freeway , weaving in and out of traffic. During the chase, the police officer chased Lorenzo at speeds ranging from 90 to 11 0 miles per hour. The police officer called for backup, and another police officer jo ined the chase. Lorenzo exited the freeway again, ran another red light, and sped through a business district before stopping and surrendering in his residential neighborh ood

. Lorenzo’s two daughters stepped
out of the car , ‚te rrified.‛

¶4 At trial, Lorenzo admitted that ‚he was out of control‛ and that he ‚was driving probably very f ast

— a little fast.‛ He acknowledged that during the chase his ‚daughters were nervous‛ but tha t they were not in danger, because he ‚always drove well.‛

1

. ‚On appeal, we review the record facts in a light most favorable to the jury’s verdict and recite the facts accordingly.‛ State v. Holgate , 2000 UT 74, ¶ 2, 10 P.3d 346 (citation and internal quotation marks omitted). ‚We present conflicting evidence only as necessary to understand issues raised on appeal.‛ Id.State v. Lorenzo

20140152

- CA 3 2015 UT App 189 ¶5 The parties agreed to a bifurcated trial. A jury tried Lorenzo for failure to respond to an officer’s signal, reckless driving, and reckless endangerment. The jury fou nd Lorenzo guilty of all charges

. Lorenzo did not move for a directed verdict or challenge the sufficiency of the eviden ce supporting his convictions.

¶6 The trial court tried Lorenzo for driving on a suspended or revoked d river license. At the bench trial, t he State called the polic e officer and a hearing officer from the Division of Motor Vehicles (DMV) to testify. The DMV officer testified that Lorenzo did not have a valid driver license, that he could not get a valid driver license, and that his drivin g privileges ‚are restricted

. . . so he cannot have any alcohol in his system w hen he drives.‛ The police officer testified that Lorenzo’s driver license was ‚suspended or rev oked for alcohol.‛ After concluding that the alcohol restriction could only have result ed from a conviction f or driving under the influence (DUI)

— an enhancement to the driver

- license charge

— the trial court found Lorenzo guilty of driving on a suspended or revoked driver license , a class B misdemeanor

.

ISSUES ON APPEAL

¶7 Lorenzo asserts three claims of error on appe al. First, he contends that insufficient evidence supported his jury

- trial convictions for reckless driving and reckless endangerment.

¶8 Second, Lorenzo contends that insufficient evidence supported his bench

- trial conviction for driving on a suspended

or re voked driver license.

¶9 Finally, Lorenzo contends that his trial counsel rendered constitutionally ineffective assistance by failing to file a motion
to s uppress evidence of the initial traffic stop on the ground that reasonable suspicion did not support the stop

.State v. Lorenzo

20140152

- CA 4 2015 UT App 189 ANALYSIS

I. Insufficient Evidence Claims

A. Reckless Driving and Reckless Endangerment

¶10 Lorenzo first contends that insufficient evidence supported his jury

- trial convictions for reckless driving and

r eckless endangerment. He argues that his ‚driving did not amount to willful and wanton nor did it create a situation that was a substantial risk‛ of serious bodily harm or death, because
, ‚*f+or the circumstances, Lorenzo did what he could to keep his daughters an d everyone else safe.‛ The State responds that Lorenzo failed to preserve this issue for appeal and that, in any event, ‚the evidence was sufficient to support the jury’s verdicts for both reckless driving and reckless endangerment.‛

¶11 Under the preservation doctrine, a sufficiency claim ‚not raised be fore the trial court cannot be raised on appeal.‛ State v. Holgate , 2000 UT 74, ¶ 11, 10 P.3d 346. ‚*T+o preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue .‛ Pratt v. Nelson , 2007 UT 41, ¶ 15, 164 P.3d 366 (citation and internal quotation marks omitted). Because t he trial court has no duty to examine the ‚ sufficiency of the evidence unless the defendant moves the court to do so or there is an ‘apparent’ insu fficiency, the preservation rule ensures that the issue will be brought to the trial court’s attention and the trial court will have the opportunity to address the issue.‛ Holgate , 2000 UT 74, ¶ 16

. The preservation rule ‚prevent*s+ a defendant from delibe rately foregoing relief below based on the sufficiency of the evidence, hoping that a remedial evidentiary defect might not be perceived and corrected, thus strategically facilitating the defendant’s chance for a reversal on appeal.‛ Id. We will not consid er an unpreserved claim on appeal unless the appellant demonstrates that the trial court committed plain error, shows that exceptionalState v. Lorenzo

20140152

- CA 5 2015 UT App 189 circumstances exist, or asserts ineffective assistance of counsel. State v. Low , 2008 UT 58, ¶ 19, 192 P.3d 867.

¶12 Lorenzo has not p reserved his sufficiency claim and does not raise any exception to the preservation rule on appeal

. He instead argues that State v. Holgate , 2000 UT 74, 10 P.3d 346, ‚did not determine that the ‘plain error’ exception was required to reach a suffi ciency challenge to a jury verdict.‛ In Holgate , our supreme court noted that the Utah Code provides that ‚the trial court ‘shall’ grant relief when the evidence is insufficient, even if a defendant fails to properly raise the issue, but only when the evidentiary defect is ‘apparent’ to the trial court .‛ Id. ¶ 15. From this language, Lorenzo argues that the trial court had ‚an inherent duty to ensure that the evidence was sufficient, requiring trial court action regar dless of preservation.‛ But he raises t his argument for the first time in his reply bri ef. ‚It is well settled that issues raised by an appellant in the reply brief that were not presented in the opening brief are considered waived and will not be considered by the appellate court.‛ Allen v. Friel , 2008 UT 56, ¶ 8, 194 P.3d 903 (citation and internal quotation marks omitted) . Lorenzo’s sufficiency claim accordingly fails. 2

B. Driving on a Suspended or Revoked Driver License

¶13 Lorenzo next contends that insufficient evidence supported his bench

- trial conviction for driving on a suspended

or re voked driver license. Lorenzo does not challenge the trial court’s finding that he was dri ving with a suspended license. Instead, he argues that the evidence supported at most a class C

2

. We note that Lorenzo’s sufficiency claim would have failed in any event . Indeed, his appellate counsel effectively conceded the sufficiency argument at oral argument when he stated, ‚Once that video

. . . was shown to the jury, it was over. It was really over.‛State v. Lorenzo

20140152

- CA 6 2015 UT App 189 misdemeanor, not a c lass B misdemeanor. He argues that because ‚the statute for driving on a suspended or revoked license calls for various and specific reasons why one has to be revoked or denied in order for someone to be found guilty,‛ it was ‚inappropriate *for the trial court+ to just infer or guess as to why Lorenzo’s licen se was revoked when the statute and the elements listed within it are very specific .‛ The State responds that the trial court had sufficient evi dence to conclude that Lorenzo committed a class B, rath er than a class C, misdemeanor.

¶14 ‚When reviewing a bench trial for sufficiency of the evidence, we must sustain the trial court’s judgment unless it is against the clear weight of the evidence, or if [we] otherwise reach[] a definite and f irm conviction that a mistake has been made.‛ State v. Gordon , 2004 UT 2, ¶ 5, 84 P.3d 1167 (alterations in original) (citation and internal quotation marks omitted). ‚*I+n those instances in which the trial court’s findings include inferences drawn from the evidence, we will not take issue with those inferences unless the logic upon which their extrapolation from the evidence is based is so flawed as to render the inference clearly erroneous.‛ Glew v. Ohio Sav. Bank , 2007 UT 56, ¶ 18, 181 P.3d 791.

¶15 A person may be convicted of a class C misdemeanor for driving a motor vehicle wi th a ‚denied, susp ended, disqualified, or revoked ‛ driver license. Utah Code Ann. § 53

- 3

- 227 (1) , (2) (LexisNexis 2010 ). This offense becomes a class B misdemeanor if the driver ’s license was denied, suspended, disqualified, or revoked for , among other things, an alcohol

- related prior offense. I d. § 53

- 3

- 227 (3) (identifying enhancing alcohol

- related prior offenses by Utah Code section numbers)

.
¶16 At the bench trial, the police officer testified that Lorenzo’s driver license had been ‚s uspend ed or revoked for alcohol, ‛ but he did not specify which alcohol violation causedState v. Lorenzo

20140152

- CA 7 2015 UT App 189 Lorenzo’s license restriction. A DMV hearing officer testified that Lorenzo’s driving privileges ‚are restricted

. . . so he cannot have any alcohol in his system when he dri ves.‛ The trial court and the parties then had the following exchange:

[ C ourt ] : Can I just infer that

. . . if someone is alcohol restricted

. . . that the only way their license can be alcohol restricted is if they have a prior DUI?

[ Prosecutor ] : Yes.

. . . .
[ Trial C ounsel ] : *W+e’re not in the business of inferring anything here. It needs to be stated specifically . . . .

[ C ourt ] : Are there other reasons that *Lorenzo’s+ license could have been

. . . alcohol restricted other than having been convicte d of a DUI?

[ Trial C ounsel ] : That I’ m aware of, no

.

. . . . I just

— when the proof is beyond a reasonable doubt to just simply infer I would arg ue is taking it a step too far.

On the basis of the te stimony and the exchange with the parties , the trial court concluded that a prior DUI triggered Lorenzo’s driving restriction:

[ B ] ased on

. . . what’s been presented in terms of argument, and that is that there is no way that heState v. Lorenzo

20140152

- CA 8 2015 UT App 189 could be [an] alcohol restricted driver other than to have been conv icted of a DUI, then I do find that there is sufficient evidence to find beyond a reasonable doubt that he’s been convicted of a DUI and that that’s why his license was rest ricted at the time.
Lorenzo argues that the trial court’s inference that a DUI caus ed his license restriction ‚was flawed and clearly erroneous‛ because ‚*t+here was no evidence presented showing what the alcohol restriction related to and when it was in place.‛

¶17 ‚*A+ reasonable inference arises when the facts can reasonably be interpret ed to support a conclusion that one possibility is more probable than another.‛ State v. Cristobal , 2010 UT Ap p 228, ¶ 16, 238 P.3d 1096

. Here, the court apparently believed that the inference it drew was not only a reasonable inference, but the only reaso nable inference from Lorenzo’s alcohol

- restricted license. Lorenzo did not identify at trial, nor does he identify on appeal, any crime that would result in an alcohol restriction but would not result in an enhancement . I n other words, he identifies no com peting inference from the evidence before the court

. Accordingly, he has not demonstrated that the trial court’s finding contravened the clear weight of the evidence. 3

3

. A crime may exist that would result in an alcohol restriction but not an enhancement. But ‚*p+inpointing where and how the trial court a llegedly erred is the appellant’ s burden,‛ not the appellate court’s. GDE Const r ., Inc. v. Leavitt , 2012 UT App 298, ¶ 24, 294 P.3d 567. ‚An appellate court that assumes that burden on behalf of an appellant ‘distorts th*e+ fundamental allocation of benefits and burdens.’‛ Niemela v. Imperial Mfg
., Inc. , 2011 UT App 333, ¶ 24, 263 P.3d 1191 (alteration in original) (quoting (continued...)State v. Lorenzo

20140152

- CA 9 2015 UT App 189

II. I neffective

- Assistance

- of

- Counsel Claim

¶18 Finally, Lorenzo contends that his trial counsel rendered constitutionally ineffective assistance by failing to file a motion to suppress evidence of the initial traffic stop on the ground that reasonable suspicion did not support the stop

. Lorenzo argues that ‚*t+here was no sound trial strategy for failing to file a suppression motion on the basis that [ the police officer ] lacked reasonable suspicion to effectuate the initial traffic stop, which led to all other charges

. . . and was thus highly prejudici al.‛ The State responds that because ‚no Fourth Amendment violation occurred,‛ filing a motion to suppress would have been futile.

¶19 To succeed on his claim of ineffective assistance of counsel, Lorenzo must establish that trial counsel performed deficiently and that counsel’s deficient performance resulted in prejudice

. See, e.g. , Strickland v. Washington , 466 U.S. 668, 687 (1984); State v. Jones , 2015 UT 19, ¶ 44, 345 P.3d 1195; State v. Litherland , 2000 UT 76, ¶ 19, 12 P.3d 92 . We review claims of ineffect ive assistance of counsel raised for the first time on appeal for correctness. State v. Lucero , 2014 UT 15, ¶ 11, 328 P.3d 841.

¶20 In addition to proving both of the Strickland elements , when an ineffective

- assistance

- of

- counsel claim turns on an alleged Fou rth Amendment violation, the defendan t bears the additional burden of proving that the ‚Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to d emonstrate prejudice.‛ Kimmelman v. Morrison , 477 U.S. 365, 375 (1986).

(...continued) State v. Robison , 2006 UT 65, ¶ 21, 147 P.3d 448). Accordingl y, we decline to do so.State v. Lorenzo

20140152

- CA 10 2015 UT App 189 ¶21 The legality of the initial stop of Lorenzo’s vehicle does not control this issue. A ‚prior illegality by officers does not affect the subsequent arrest o f a defendant where there is

an intervening illegal act by the suspect.‛ State v. Griego , 933 P.2d 1003, 1008 (Utah C t. App. 1997) (citing United States v. Bailey , 691 F.2d 1009, 1016

– 17 (11th Cir. 1982 ) ) ; accord State v. Earl , 2004 UT Ap p 163, ¶ 23 , 92 P.3d 167

. Thus, ‚notwithstanding a strong causal connection in fact between lawless police conduct and a defendant ’s response, if the defendant’ s response is itself a new, distinct crime, then the police constitutionally may arrest the defendant for that crime.‛ Bailey , 6 91 F.2d at 1016

– 17

. ‚A contrary rule would virtually immunize a defendant from prosecution for all crimes he might commit that have a sufficient causal connection to the police misconduct.‛ Id

. at 1017.

¶22 This principle applies here. E ven if the initial sto p was unlawful, Lorenzo’s underlying Fou rth Amendment claim fails. All of the charges against Lorenzo stemmed from his actions after he fled the scene of the stop. Lorenzo committed separate illegal acts

— leading police on a dangerous, high

- speed chase on
t he freeway and through residential and business districts

— after the alleged ly unlawful stop. Because of Lorenzo’s intervening illegal conduct, a motion to suppress challenging the initial stop would have been futile. See State v. Kelley , 2000 UT 41, ¶ 26, 1 P.3d 546. Accordingly, Lorenzo’s ineffective

- assistance

- of

counsel challenge fails.

CONCLUSION

¶23 For the foregoing reasons, Lorenzo’s convictions are affirmed.