2020 UT App 147

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

LEE ERVIN HEYEN,

Appellant.

Opinion

No. 20180804-CA

Filed October 29, 2020

Third District Court, Salt Lake Department

The Honorable Todd M. Shaughnessy

No. 151911025

Brett J. DelPorto, Attorney for Appellant

Sean D. Reyes and Jeffrey D. Mann, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES GREGORY K. ORME and JILL M. POHLMAN

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Lee Ervin Heyen was convicted on multiple counts of 

raping two fifteen-year-old girls. Heyen argues that he would 

not have been convicted had his trial counsel (Counsel) insisted 

that tattoos on his face and neck be covered or at least requested 

a cautionary jury instruction about them. We conclude that 

Heyen’s ineffective assistance of counsel claim fails and affirm 

his convictions.
State v. Heyen

20180804-CA 2 2020 UT App 147

BACKGROUND1

¶2 Heyen sold or gave marijuana to two fifteen-year-old 

girls, S.W. and C.W. He also employed these two girls to sell 

marijuana. And on separate occasions, he raped them multiple 

times.

¶3 The first victim, S.W., had asked around her school for 

someone to sell her marijuana. In response, Heyen’s son (Son) 

introduced her to Heyen. S.W. became friends with Heyen, and 

the two would “[s]moke [marijuana] and listen to music” at 

Heyen’s apartment. On one occasion at his apartment, Heyen 

asked S.W. “why [she] hung out with him” and expressed that 

“he thought that there was a reason that [she] hung out with him 

other than buying marijuana from him.” Heyen then insisted 

that she sit next to him on the couch. S.W. recalled being afraid 

of Heyen because he had told her that he had been “involved in 

some sort of a shooting when he was younger,” he had been in 

prison, and he had “been part of a gang.” She also revealed that 

she was scared because of his “prison tattoos and gang tattoos.” 

Heyen then raped and forcibly sodomized S.W., ignoring her 

pleas to stop. After the rape, Heyen told S.W. “to stop crying” 

and that if she “did anything to upset him, there would be 

consequences.” S.W. recalled being worried not only about her 

own well-being but also that of her family and friends.

¶4 Over the next few weeks, S.W. continued to visit Heyen 

because she “felt like [she] didn’t have a choice.” He would pick 

up S.W. in his car and ask her if she “knew anybody who would 

 

1. “On appeal, we review the record facts in a light most 

favorable to the jury’s verdict and recite the facts accordingly. 

We present conflicting evidence only as necessary to understand 

issues raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 

346 (quotation simplified).
State v. Heyen

20180804-CA 3 2020 UT App 147

want to buy [drugs] from him.” On two separate occasions, 

Heyen took S.W. to his apartment where she said that he raped 

her in similar fashion to the first sexual assault. S.W. also alleged 

that Heyen forced her to perform oral sex on him on two 

separate occasions while in his car in a public parking lot.

¶5 The other victim, C.W., became acquainted with Heyen 

when she asked Son “if he knew anywhere that [she] could get a 

tattoo at 14 years old, and he told [her] his dad was doing 

tattoos.” Without obtaining her parents’ permission, C.W. 

received five tattoos from Heyen over time. In addition to 

getting tattooed, C.W. began to “hang out” with Heyen more 

frequently: “We would just kind of smoke weed together, drink 

together, have parties, sell.” In January 2015, she left her father’s 

house, where she had been living, dropped out of school, and 

moved to Heyen’s apartment. About that same time, C.W. heard 

a rumor from a friend that she and Heyen were sexually 

involved. She was upset about the rumor and told Heyen, who 

responded that they “might as well just make it true.” C.W. 

recalled feeling “terrified” that Heyen was proposing a sexual 

relationship.

¶6 A few weeks later, after having made threats implying 

harm to C.W.’s family, Heyen pushed C.W. into his bedroom 

and raped her. She recalled being “terrified” and “shocked” as 

Heyen sexually assaulted her. C.W. testified that Heyen sexually 

assaulted her “multiple times for the next four months,” alleging 

that he raped her about three times a week during this period.

¶7 Heyen was charged with seven counts of rape—four for 

raping C.W. and three for raping S.W.—that occurred between 

January and May 2015. He was also charged with three counts of 

distributing or arranging to distribute a controlled substance, 

one with respect to C.W. and two with respect to S.W.

¶8 Heyen’s defense at trial was that while he may have been 

involved in drug dealing and practiced questionable parenting, 
State v. Heyen

20180804-CA 4 2020 UT App 147

he did not rape the two victims. Noting that there was no DNA 

evidence, no photographs, no video, no third-party witnesses, 

and no text messages to corroborate the victims’ allegations of 

sexual assault, Heyen argued that the accusations of rape were 

based on “just the words of teenage girls.” Thus, challenging the 

credibility of the two victims was critical to his defense, which is 

the context in which Heyen’s tattoos came into play. Heyen 

wanted to introduce evidence of a spiderweb tattoo “on [his]

penis—a hard-to-miss tattoo that neither alleged victim reported 

seeing—without opening the door for the state to introduce 

other tattoo evidence.”

¶9 While Heyen wanted the penis tattoo evidence admitted, 

he argued that the “probative value of [his] prior gang affiliation 

and [other] gang-affiliated tattoos [was] substantially 

outweighed by the danger of unfair prejudice.” These tattoos 

were associated with the white supremacy movement: “SAC”2

written on his forehead, a swastika3 on his stomach, a broken 

sun cross4 on his neck, “Supreme White Power”5 written under 

 

2. “Soldiers of Aryan Culture (SAC) is a large Utah-based white 

supremacist prison gang.” Soldiers of Aryan Culture, AntiDefamation League, https://www.adl.org/education/references/

hate-symbols/soldiers-of-aryan-culture [https://perma.cc/ZC6R937C].

3. “Since 1945, the swastika has served as the most significant 

and notorious of hate symbols, anti-Semitism and white 

supremacy . . . . In the United States, the swastika is 

overwhelmingly viewed as a hate symbol.” Swastika, AntiDefamation League, https://www.adl.org/education/references 

/hate-symbols/swastika [https://perma.cc/A2Q3-NZVF].

4. “The white supremacist version of the Celtic Cross, 

which consists of a square cross interlocking with or 

(continued...)
State v. Heyen

20180804-CA 5 2020 UT App 147

his neck, and “88”6 written on the top of his head. In contrast, 

the State wanted to introduce evidence of the totality of Heyen’s 

tattoos for two reasons. First, the State argued that the “whole 

picture in context” served to rebut the fabrication claim by 

showing that it would have been unlikely that S.W. and C.W. 

would notice the penis tattoo among the many tattoos all over 

Heyen’s body. Second, the State believed that the tattoos, “in 

conjunction with evidence of Heyen’s statements to the victims

that he was a member of a gang and had been to prison,” would 

have given credence to the claims that he had threatened S.W. 

and C.W. and that they took the threats as credible.

¶10 Counsel stipulated to the admission of a number of 

photographs showing Heyen’s tattoos on his face, neck, arms, 

and hands, but he specifically asked the court to exclude 

“testimony or pictures of [the] swastika [tattoo] because it didn’t

have an effect on” C.W. or S.W. The district court essentially 

 

(...continued)

surrounded by a circle, is one of the most important 

and commonly used white supremacist symbols. . . . It is 

the short ‘sun cross’ version of the Celtic Cross, surrounded 

by a circle, that is more commonly used by white 

supremacists . . . .” Celtic Cross, Anti-Defamation League,

https://www.adl.org/education/references/hate-symbols/celticcross [https://perma.cc/6HFR-TK47].

5. “Supreme White Power” is a common prison tattoo. SWP, 

Anti-Defamation League, https://www.adl.org/education/

references/hate-symbols/swp [https://perma.cc/YHZ6-ZBWD].

6. “88 is a white supremacist numerical code for ‘Heil Hitler.’ H 

is the eighth letter of the alphabet, so 88 = HH = Heil Hitler.” 

88, Anti-Defamation League, https://www.adl.org/education/

references/hate-symbols/88 [https://perma.cc/JTT6-ZFDP].
State v. Heyen

20180804-CA 6 2020 UT App 147

agreed with Counsel in making the following rulings: First, there 

was a “significant risk” in exposing the jury to “tattoos that 

obviously symbolize white supremacist content” because the 

“content of the tattoos“ could be “used in a way that would 

detract the jury’s attention away from the facts of this case.”

Second, the victims could testify that they felt “threatened” 

because Heyen had told them that his tattoos were “gang 

tattoos.” Third, “the defense’s introduction of the evidence of the 

penis tattoo [would] not open the door to the State being able to 

introduce evidence of the other tattoos.” But the district court 

cautioned, “[T]here may be other ways in which [the] defense 

may open the door and it, obviously, needs to proceed carefully, 

but the mere introduction of that [penis tattoo] evidence 

wouldn’t do it.”

¶11 Although Heyen had grown out his facial hair and hair on 

his head and wore a shirt and tie for trial, some of the tattoos on 

his forehead, face, neck, and hands remained visible to members 

of the jury.

¶12 During voir dire, the prospective jurors were asked about 

the tattoos visible on Heyen’s body. None of the eight 

individuals who were ultimately selected to sit on the jury 

expressed that they knew the meaning of those tattoos. Six of the 

eight jurors were expressly asked by Counsel if they knew the 

meanings of the visible tattoos, and they all denied they did. The 

remaining two jurors, while not explicitly asked about the 

meaning of the tattoos in question, both expressed that the 

tattoos would not impact their judgment: one said the tattoos 

were in no way “troubling,” and the other said that she had 

tattoos and had “no problem” with Heyen’s tattoos.

¶13 At trial, Counsel began his opening statement by 

suggesting that his client was being unfairly targeted because of 

his tattoos: “[Heyen] is a man who’s the easiest guy to blame. 

Look at him. Tattoos on his face. Look at the tattoos on his arm, 
State v. Heyen

20180804-CA 7 2020 UT App 147

on his hands. He has tattoos up his sleeve. He’s the easiest man 

to blame.” Both S.W. and C.W. testified that Heyen had tattoos 

all over his body. And S.W. testified that Heyen had described 

his tattoos as “prison tattoos and gang tattoos.” The State also 

presented several photos of Heyen with his tattoos exposed—

including photographs of Heyen’s head that clearly showed his 

SAC, broken cross, and 88 tattoos—that were admitted without 

objection. Heyen then presented evidence of the penis tattoo, 

specifically to make the point that it predated the rapes of C.W. 

and S.W. And both victims testified that they did not see the

tattoo on Heyen’s penis.

¶14 The jury convicted Heyen on four counts of rape of C.W., 

one count of rape of S.W., and the three counts of distribution. 

He was acquitted of the other charges. Heyen appeals.7

ISSUE AND STANDARD OF REVIEW

¶15 The primary issue on appeal is whether Counsel was 

constitutionally ineffective for not concealing Heyen’s tattoos 

during trial. “A claim of ineffective assistance of counsel raised 

for the first time on appeal presents a question of law, which we 

 

7. While the notice of appeal does not distinguish between the 

convictions for rape and distribution, it does not appear from 

Heyen’s brief or the record that he is appealing the convictions 

for distribution of a controlled substance. At trial, Heyen stated 

that he “absolutely” believed that he “should be convicted of 

selling marijuana.” And in his brief, Heyen states that he 

“acknowledged in open court” that he was “guilty” of the 

“crime . . . of distributing a controlled substance.” Furthermore, 

Heyen’s brief states that “[t]his appeal is from a conviction for 

rape.” Thus, because Heyen has not expressly challenged the 

jury’s verdict on the distribution charges, we limit our analysis 

to the five rape convictions.
State v. Heyen

20180804-CA 8 2020 UT App 147

consider de novo.” State v. King, 2018 UT App 190, ¶ 11, 437 P.3d 

425 (quotation simplified).8

ANALYSIS

¶16 Heyen appeals his rape convictions, asserting that if 

Counsel had advised or insisted that he cover the tattoos on his 

face and neck, “there is a reasonable probability that . . . Heyen 

would have been acquitted on tenuous allegations from 

witnesses whose credibility was impeached.” Heyen specifically 

argues that allowing him to appear “in court with his tattoos in 

full view of jurors” “essentially nullified [the] victory” of the 

 

8. Heyen also argues that he received ineffective assistance 

because Counsel did not request a cautionary jury instruction 

about the tattoos. But in the single paragraph in his appellate 

brief in which he makes this argument, he provides no 

explanation of what that instruction should have been. Without 

this information, we cannot reach the conclusion that Heyen was 

prejudiced. “To show prejudice in the ineffective assistance of 

counsel context, the defendant bears the burden of proving that 

counsel’s errors actually had an adverse effect on the 

defense . . . . Proof of ineffective assistance of counsel cannot be a 

speculative matter but must be a demonstrable reality.” State v. 

Munguia, 2011 UT 5, ¶ 30, 253 P.3d 1082 (quotation simplified). 

In short, by not providing us with a proposed cautionary

instruction, Heyen also cannot demonstrate what difference a 

cautionary instruction would have made to the outcome of the 

trial. See State v. Popp, 2019 UT App 173, ¶ 29, 453 P.3d 657 (“To 

establish prejudice, [a defendant] must show that there is a 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” (quotation simplified)).
State v. Heyen

20180804-CA 9 2020 UT App 147

court’s ruling excluding his racist tattoos: “Instead of 

shielding . . . Heyen from the prejudicial impact of the tattoos, 

the defense paraded the racist imagery in front of jurors for four 

days.” Thus, Heyen claims that Counsel “was ineffective in 

usurping . . . Heyen’s right to prevent jurors from viewing the 

racist tattoos.”

¶17 To succeed on a claim of ineffective assistance of counsel, 

Heyen must demonstrate that Counsel’s “performance was 

deficient” and that “the deficient performance prejudiced the 

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). 

“Because failure to establish either prong of the test is fatal to an 

ineffective assistance of counsel claim, we are free to address 

[Heyen’s] claims under either prong.” See Honie v. State, 2014 UT 

19, ¶ 31, 342 P.3d 182. Thus, we limit our analysis to Strickland’s 

first prong because we conclude that Counsel’s performance was 

not deficient.

¶18 To show deficient performance, Heyen must overcome 

the presumption that Counsel’s decision not to cover the tattoos 

“falls within the wide range of reasonable professional 

assistance.” See Strickland, 466 U.S. at 689. “The court gives trial 

counsel wide latitude in making tactical decisions and will not 

question such decisions unless there is no reasonable basis 

supporting them.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 

(quotation simplified). Moreover, “the question of deficient 

performance is not whether some strategy other than the one 

that counsel employed looks superior given the actual results of 

trial. It is whether a reasonable, competent lawyer could have 

chosen the strategy that was employed in the real-time context of 

trial.” State v. Nelson, 2015 UT 62, ¶ 14, 355 P.3d 1031 (quotation 

simplified). And “even where a court cannot conceive of a sound 

strategic reason for counsel’s challenged conduct, it does not 

automatically follow that counsel was deficient. . . . [T]he 

ultimate question is always whether, considering all the 

circumstances, counsel’s acts or omissions were objectively 
State v. Heyen

20180804-CA 10 2020 UT App 147

unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350; 

accord State v. Ray, 2020 UT 12, ¶¶ 34–36, 469 P.3d 871.

¶19 Here, Heyen argues that leaving his face and neck tattoos 

exposed during trial was unreasonable and that “there was no 

reason to allow jurors to see them.” We disagree. There were 

several obvious reasons for leaving the tattoos uncovered, 

leading to the conclusion that it was not “objectively 

unreasonable” for Counsel to allow the jury to see them. See

Scott, 2020 UT 13, ¶ 36.

¶20 First, because the jury was going to see a good number of 

the tattoos anyway through admissible photographic evidence, 

see supra ¶ 10, Counsel could reasonably have concluded that 

covering Heyen’s tattoos would have been counterproductive. 

Covering the tattoos could have left the jury with the impression 

or room to speculate that the tattoos bore a more significant and 

offensive meaning than the jury might have otherwise 

presumed. In addition, Counsel may have feared that any 

attempt to conceal (e.g., through cosmetics) the tattoos may have 

been obvious to the jury and caused the jury to regard Heyen 

with skepticism, as being untrustworthy, or as literally trying to 

hide something. Thus, considering the circumstances, it was not 

unreasonable for Counsel to favor transparency concerning the 

existence of Heyen’s tattoos when evidence of them would be 

presented at trial anyway.

¶21 Second, Counsel attempted to use Heyen’s tattoos 

strategically by suggesting that Heyen was an easy target for 

prosecution because of his tattoos and not because of the 

evidence: “Look at him. Tattoos on his face. Look at the tattoos 

on his arm, on his hands. He has tattoos up his sleeve. He’s the 

easiest man to blame.” Counsel went on to say, “When you look 

at the evidence and when you judge [Heyen], judge him not on 

the ink on his skin but on the content of the evidence.” A 

significant theme of Counsel’s argument at trial was that 
State v. Heyen

20180804-CA 11 2020 UT App 147

Heyen’s tattoos made him an easy target for blame from the 

victims and attack by the prosecution. And the only viable way 

for Counsel to make this argument was to acknowledge the 

presence of Heyen’s numerous tattoos. Moreover, Counsel used 

the tattoo on Heyen’s penis in an effort to discredit the two 

victims, and Counsel may have thought the jury would have 

viewed concealing Heyen’s other tattoos as inconsistent. Thus, 

Counsel could reasonably conclude that any attempt to cover or 

disguise Heyen’s tattoos in light of such a defense could have 

been perceived as, at the very least, disingenuous by the jury. By 

avoiding a counterproductive move, Counsel’s decision not to 

cover Heyen’s tattoos cannot be viewed as “objectively 

unreasonable.” See Scott, 2020 UT 13, ¶ 36.

¶22 Being upfront about the existence of the tattoos—to the 

point of allowing them to be visible during voir dire—also 

allowed Counsel to screen the prospective jurors to eliminate 

those who might bear an overt bias against tattooed persons. By 

allowing the prospective jurors to see some of Heyen’s visible 

tattoos that the jury was going to see photographic evidence of 

during the trial, Counsel could reasonably conclude that he had 

effectively desensitized the jury to the impact of Heyen’s tattoos 

from the earliest stages of the trial. This strategy was reasonable 

because it allowed Counsel to select jury members who would 

be dispassionate about Heyen’s tattoos from the outset.

¶23 Transparency about the existence of the tattoos, along 

with their strategic use to paint Heyen as an easy target, was a 

reasonable decision and, under the circumstances, “might be 

considered sound trial strategy.” See Strickland, 466 U.S. at 689

(quotation simplified). “We view Counsel’s trial decision as a 

quintessential question of judgment and strategy. We easily 

could imagine this appeal being before us under the alternative 

scenario in which Counsel instead had advised” Heyen to 

conceal his tattoos. See State v. Fleming, 2019 UT App 181, ¶ 12, 

454 P.3d 862. Indeed, under that scenario, Heyen might well 
State v. Heyen

20180804-CA 12 2020 UT App 147

have complained that Counsel’s decision had caused him to 

come across as guileful before the jury. Because Heyen does not

show that Counsel’s actions were unreasonable given the 

circumstances, he has not established the first Strickland prong. 

Therefore, his ineffective assistance of counsel claim is 

unavailing.

CONCLUSION

¶24 We reject Heyen’s claim of ineffective assistance because 

reasonable counsel could have had strategic reasons for leaving 

Heyen’s tattoos exposed during trial, and thus it was not 

objectively unreasonable for Counsel to do so.

¶25 Affirmed.