2021 UT App 62

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

GABRIEL RODOLFO BRAN,

Appellant.

Opinion

No. 20200318-CA

Filed June 10, 2021

Third District Court, Salt Lake Department

The Honorable Amber M. Mettler

No. 181902692

Hakeem Ishola and Carlos Navarro, Attorneys

for Appellant

Sean D. Reyes and Jonathan S. Bauer, Attorneys

for Appellee

SENIOR JUDGE KATE APPLEBY authored this Opinion, in which 

JUDGES JILL M. POHLMAN and RYAN M. HARRIS concurred.

1

APPLEBY, Senior Judge:

¶1 Gabriel Rodolfo Bran appeals his conviction of object 

rape, in connection with the inappropriate touching of one of his 

massage therapy patients (Patient). Bran argues that the district 

court committed plain error in several instances and that his trial 

counsel (Counsel) provided constitutionally ineffective 

assistance. We affirm.

 

1. Senior Judge Kate Appleby sat by special assignment as 

authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Bran

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BACKGROUND2

¶2 Patient was experiencing sciatic nerve pain and sought 

treatment at the chiropractic clinic where Bran worked. Her first 

massage therapy session with Bran lasted thirty minutes and 

ended without incident. But during a second session, while Bran 

was massaging Patient’s inner thigh, he slid his hand beneath 

her underwear and his fingers between her labia. Patient 

grabbed Bran’s arm, each of them briefly froze, and Bran 

withdrew his hand, apologized, and left the room. Patient 

dressed and tried to collect herself, then reported the incident to 

the office manager and the owner of the clinic. She exited the 

clinic through the back door, her face red from crying. After 

calling her husband and sister to tell them what had happened, 

she called the police. At the responding officers’ suggestion, 

Patient went to an emergency room for a sexual assault forensic 

exam. On the basis of Patient’s allegations, Bran was charged 

with one count of object rape.

¶3 Patient testified at trial about the inappropriate touching. 

She stated, “And then just before I knew it, his hand just slid 

right under my underwear and then it—it slid right under my 

underwear and then curved under and went—his fingers went 

right between my labia.” Patient clarified she was not informed 

that this kind of touching would be part of the massage, nor did 

she consent to Bran touching her this way. Patient also testified 

about Bran’s reaction after she stopped him: “He stood on the 

side of the bed for a second. He said, ‘Oh, shit.’ Walked to the 

foot of the bed, grabbed my feet and said, ‘I’m sorry. I 

apologize.’”

 

2. “We recite the facts in a light most favorable to the jury 

verdict. We present conflicting evidence only when necessary to 

understand issues raised on appeal.” State v. Vallejo, 2019 UT 38, 

¶ 2 n.1, 449 P.3d 39 (quotation simplified).
State v. Bran

20200318-CA 3 2021 UT App 62

¶4 The State also presented testimony from two clinic 

employees who saw or talked to Patient after the massage. The 

clinic’s office manager reported that Patient was “almost 

shaking” and “was crying” when reporting the incident. A 

different massage therapist testified he saw Patient exit through 

the back door “crying” and “hysteric.” The nurse who 

conducted the sexual assault forensic exam similarly testified 

that Patient was “quite tearful.”

¶5 As part of the State’s case, a forensic DNA analyst also 

testified and discussed the results from Patient’s sexual assault 

forensic exam. The analyst testified that the DNA test used was 

sufficiently sensitive to detect touch DNA, which she described 

as “the transfer of DNA just by physical touch,” where DNA is 

“left behind after coming in contact with an object.” She 

explained that the test performed revealed a DNA profile with 

three male contributors—one major contributor and two minor 

contributors. She also explained that the DNA testing excluded 

Bran as the major contributor but the testing was inconclusive 

regarding the minor contributors as a result of their low DNA 

levels in the samples.

¶6 The defense presented its case on the second day of trial. 

It called a separate DNA expert, who agreed with the State’s 

expert that Bran was excluded as the major contributor but 

further asserted that Bran could also be excluded as either of the 

two minor contributors.

¶7 Later that day, the defense called its final witness—a 

certified massage therapy instructor, who testified about 

appropriate massage procedures and sheet-draping techniques, 

as well as possible referred sensations that could occur during a 

massage.3 During Counsel’s direct examination of this witness, 

 

3. A referred sensation is one “that is localized (i.e., experienced) 

at a point different from the area stimulated. For example, when 

(continued...)
State v. Bran

20200318-CA 4 2021 UT App 62

the prosecutor notified the court that a juror was falling asleep 

and suggested it might be a good time for a short break. Counsel

agreed, and the court announced a five-minute recess for jurors 

to stretch, use the restroom, or get a “caffeinated drink.” After 

the break, the witness examination continued, and there were no 

further issues with sleepy jurors.

¶8 The jury ultimately found Bran guilty of the charged 

offense. Bran now appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 Bran raises only one issue that he asserts was preserved 

by an objection at trial: that the district court erroneously 

allowed testimony regarding Patient’s crying. “We review the 

legal determinations leading to an admissibility ruling for 

correctness. We review the factual findings for clear error. And 

we review the admissibility ruling itself for abuse of discretion.” 

State v. McCullar, 2014 UT App 215, ¶ 21, 335 P.3d 900 (quotation 

simplified).

¶10 Bran recognizes that the remainder of his arguments were 

not preserved for appeal, but he invites us to consider each of 

them under two exceptions to the preservation rule: plain error 

and ineffective assistance of counsel. See generally State v. Johnson, 

2017 UT 76, ¶ 18, 416 P.3d 443 (“A failure to preserve an issue in 

the trial court generally precludes a party from arguing that 

issue in an appellate court, absent a valid exception.”). “To 

demonstrate plain error, a defendant must establish that (i) an

 

(...continued)

the elbow is struck, the mechanical stimulation of the nerve may 

cause tingling of the fingers.” American Psychological Ass’n, 

Referred Sensation, APA Dictionary of Psychology, 

https://dictionary.apa.org/referred-sensation [https://perma.cc/ 

Z3KQ-ZDPG].
State v. Bran

20200318-CA 5 2021 UT App 62

error exists; (ii) the error should have been obvious to the trial 

court; and (iii) the error is harmful . . . .” State v. Holgate, 2000 UT 

74, ¶ 13, 10 P.3d 346 (quotation simplified). “Plain error is a 

question of law reviewed for correctness.” State v. Smit, 2004 UT 

App 222, ¶ 7, 95 P.3d 1203. Similarly, “[w]here, as here, a claim 

of ineffective assistance of counsel is raised for the first time on 

appeal without a prior evidentiary hearing, it presents a 

question of law.” State v. Bryant, 965 P.2d 539, 542 (Utah Ct. App. 

1998). “In order to bring a successful ineffective assistance of 

counsel claim, appellant must show that his trial counsel’s 

performance was deficient, in that it fell below an objective 

standard of reasonableness, and that the deficient performance 

prejudiced the outcome of the trial.” Id. (quotation simplified).4

ANALYSIS

I. Patient’s Crying

¶11 The clinic office manager, the other massage therapist, 

and the nurse each testified that Patient was crying, and Bran 

maintains this evidence constituted inadmissible hearsay. Bran 

asserts this issue was preserved; the State argues it was not and 

we therefore should not consider it. Because this claim can be 

resolved on its merits in the State’s favor, we choose to address 

the alleged error without analyzing whether the issue was 

preserved. See State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 

(“If the merits of a claim can easily be resolved in favor of the 

party asserting that the claim was not preserved, we readily may 

 

4. Bran additionally makes a cumulative error argument, but 

because he ultimately does not show any individual errors here, 

the cumulative error doctrine does not apply. See State v. Galindo, 

2019 UT App 171, ¶ 17 n.4, 452 P.3d 519 (“There are no errors to 

accumulate here, rendering the cumulative error doctrine 

inapplicable in this case.”).
State v. Bran

20200318-CA 6 2021 UT App 62

opt to do so without addressing preservation. This approach 

accords with the purpose of our preservation rules, as it 

prioritizes judicial economy without altering the incentive to 

object at trial.” (quotation simplified)), petition for cert. filed, May 

11, 2021 (No. 20210320).

¶12 The rule against hearsay applies to certain out-of-court 

statements. See Utah R. Evid. 801(c), 802. In this context, the term 

“statement” is “a person’s oral assertion, written assertion, or 

nonverbal conduct, if the person intended it as an assertion.” Id. 

R. 801(a). Thus, although the definition of a statement is 

sufficiently broad to include nonverbal conduct, for that conduct 

to be subject to the rule against hearsay, the person engaged in it 

must have “intended it as an assertion.” Id.; see also R. Collin 

Mangrum & Dee Benson, Mangrum and Benson on Utah Evidence

849 (2020–2021 ed.) (“If the conduct is not expressly assertive, 

but instead only impliedly reflects the belief of the actor 

regarding some fact in question, then the evidence would not fall 

within the hearsay rule. In such cases, the evidence would be 

admissible as circumstantial evidence of the fact in question.”). 

Bran has not argued in the district court or on appeal that by 

crying, Patient was making an assertion; thus, it was not error 

for the district court to refuse to exclude the testimony as 

hearsay. See State v. Hall, 946 P.2d 712, 716 (Utah Ct. App. 1997) 

(“In this case, defendant makes no attempt to show that [the 

victim] intended her behavior to be an assertion. We therefore 

decline to address defendant’s argument regarding [the victim]’s 

nonverbal conduct.”); see also Mangrum & Benson, at 849 (“The 

rule is so worded as to place the burden upon the party claiming 

that the assertive intention existed; ambiguous and doubtful 

cases will be resolved against him and in favor of admissibility.” 

(quotation simplified)).

II. Bran’s Apology

¶13 Bran argues Counsel was deficient for not moving to 

exclude Patient’s testimony about his apology to her and that the 
State v. Bran

20200318-CA 7 2021 UT App 62

district court committed plain error in allowing it. Bran argues 

that Patient’s testimony about his apology does not fit within 

either the statement-against-interest exception or the residual 

exception to the rule against hearsay. See generally Utah R. Evid. 

804(b)(3), 807. But rule 801(d)(2) of the Utah Rules of Evidence 

excludes from the definition of hearsay any statement made by 

and offered against an opposing party. Id. R. 801(d)(2); see also 

State v. Vargas, 2001 UT 5, ¶ 36, 20 P.3d 271. Therefore, the 

testimony regarding Bran’s apology was not hearsay in the first 

place5 and the court did not commit error by failing to exclude it 

on hearsay grounds. Likewise, Counsel would have had no 

reason to think that an objection on hearsay grounds would be 

successful, and thus, the failure to move to exclude the 

testimony on hearsay grounds did not constitute ineffective 

assistance of counsel. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 

546 (“Failure to raise futile objections does not constitute 

ineffective assistance of counsel.”).

III. The Sleepy Juror

¶14 Bran argues that the district court should have questioned 

the sleepy juror to ascertain whether the juror missed “vital 

testimony” and that Counsel was deficient for not requesting 

such questioning. In making these arguments, Bran overstates 

precedent when he asserts that questioning the juror was 

necessary in his case. 

In the handful of Utah appellate cases 

discussing a sleeping juror’s effect on a trial, one 

 

5. Although Bran essentially concedes this point in his brief, he 

also points out that a statement sometimes may be inadmissible 

on other grounds even when it is not excluded as hearsay. 

Nonetheless, Bran does not suggest what other grounds may 

have supported a successful objection to the apology evidence. 

Thus, this argument is unavailing.
State v. Bran

20200318-CA 8 2021 UT App 62

principle predominates: discretion. Indeed, 

handling a sleeping juror is so peculiarly within 

the observation, province, and discretion of the 

trial court that we should not interfere with the 

ruling, except upon a clear abuse of discretion.

State v. Marquina, 2018 UT App 219, ¶ 29, 437 P.3d 628 (quotation 

simplified), aff’d, 2020 UT 66, 478 P.3d 37.6

¶15 Bran characterizes the issue as one in which “a juror 

indisputably napped.” But no evidence in the record 

demonstrates that the situation was so severe. During Counsel’s 

questioning of the final witness at trial, the prosecutor simply 

alerted the court that “a juror is falling asleep.” This present 

tense statement suggests that the juror was struggling to stay 

awake and does not demonstrate that the juror was sleeping at 

all, let alone for any significant period. The attorneys and the 

court agreed that a quick break would address the issue. And 

nothing in the record suggests that the juror struggled to stay 

awake after the break or that he was sleepy at any other point in 

the trial. Based on these circumstances, we cannot say that the 

court abused its discretion through its chosen remedy of a quick 

recess to afford the jurors a chance to stretch, move around, and 

get a drink. Because this remedy appears appropriate under the 

circumstances here, we cannot say that Counsel rendered 

ineffective assistance in failing to move for a different remedy.7

 

6. Although the Marquina case cited here has since been affirmed 

on appeal, the decision by the court of appeals was the law in 

effect at the time of Bran’s trial, and it is therefore the lens 

through which we evaluate his plain error and ineffective 

assistance of counsel arguments.

7. We do, however, note the Utah Supreme Court’s recent 

guidance on this issue in State v. Marquina, 2020 UT 66, 478 P.3d 

(continued...)
State v. Bran

20200318-CA 9 2021 UT App 62

IV. Directed Verdict

¶16 Bran argues the evidence was insufficient to support a 

conviction for object rape and therefore Counsel provided 

ineffective assistance in failing to move for a directed verdict and 

the district court plainly erred when it did not sua sponte 

dismiss the charge against him. A trial court will dismiss the 

charges against a defendant “if the State did not establish a 

prima facie case against the defendant by producing believable 

 

(...continued)

37, aff’g 2018 UT App 219, 437 P.3d 628. Although the supreme 

court’s opinion in Marquina was decided after Bran’s trial and 

would not be applicable to his plain error or ineffective 

assistance of counsel claims, it will be applicable in future cases 

that concern the issue of an inattentive juror. In Marquina, the 

supreme court clarified that “when a trial court receives a 

reliable report of a sleeping or otherwise inattentive juror, the 

court should proceed in a manner that is proportional to the 

report” and “the court has flexibility, of course, in determining 

what response would be proportional under the circumstances.” 

Id. ¶ 38 (quotation simplified). The supreme court also stressed 

that “it is important for the court to glean any facts relevant to 

determining whether a juror has missed a portion of the trial, 

and to make an informed decision about whether the juror 

remains qualified to decide the case.” Id. The supreme court 

further cautioned, “When a trial court encounters an issue 

related to an inattentive juror, appellate courts can defer to the 

trial court’s chosen course of action only to the extent that there 

is a clear record of what occurred and the court states its 

reasoning on the record.” Id. ¶ 39. Thus, in a case like the one 

before us, the district court should make a detailed record 

regarding the issue, for example, eliciting information from the 

person reporting the drowsy juror about the extent of the 

observed juror inattention and spelling out its reasoning for the 

chosen course of action in remedying the issue.
State v. Bran

20200318-CA 10 2021 UT App 62

evidence of all the elements of the crime charged.” State v. 

Emmett, 839 P.2d 781, 784 (Utah 1992) (quotation simplified). For 

a conviction of object rape, the State was required to prove that 

Bran, 

without the victim’s consent, cause[d] the 

penetration, however slight, of the genital or anal 

opening of another person who is 14 years of age 

or older, by any foreign object, substance, 

instrument, or device, including a part of the 

human body other than the mouth or genitals, with 

intent to cause substantial emotional or bodily pain 

to the victim or with the intent to arouse or gratify 

the sexual desire of any person.

Utah Code Ann. § 76-5-402.2 (LexisNexis 2017). 

¶17 Patient’s testimony regarding the incident provides 

believable evidence of the consent and penetration elements.8

 

8. Bran appears to suggest that Patient’s testimony was not 

believable because the DNA evidence “all but exonerated” him. 

But this mischaracterizes the evidence. The DNA evidence 

presented by the State indicated that Bran could be ruled out as 

the major contributor in the DNA sample but could not be ruled 

out as one of the two minor contributors because at “those low 

levels, it can be uncertain as to if everyone is fully represented.” 

The defense’s DNA expert came to a different conclusion and 

asserted that Bran could be eliminated as either of the minor 

contributors. Thus, the experts did not agree on this issue. 

Furthermore, the defense’s DNA expert testified there was no 

guarantee that if Bran had touched Patient as alleged, his touch 

DNA would have been found on the samples tested. Thus, the 

expert essentially acknowledged that even if Bran could be 

eliminated as one of the minor contributors, that would not 

necessarily prove he did not touch Patient as she alleged. 
State v. Bran

20200318-CA 11 2021 UT App 62

And her testimony of Bran’s other actions and reactions could 

support a jury’s finding of the required intent. See Emmett, 839 

P.2d at 784 (“While evidence of intent is usually not susceptible 

to direct proof, it can often be inferred from circumstance.”); 

State v. James, 819 P.2d 781, 789 (Utah 1991) (“It is well 

established that intent can be proven by circumstantial 

evidence.”). Thus, Patient’s testimony alone would be sufficient 

evidence to overcome any motion for a directed verdict, had it 

been made.9 Where a directed verdict based on insufficient 

evidence would not have succeeded in this case, it was not 

error—plain or otherwise—for the district court to fail to dismiss 

the charges against Bran, nor was it ineffective assistance for 

Counsel to not seek a directed verdict, cf. State v. Kelley, 2000 UT 

41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objections does not 

constitute ineffective assistance of counsel.”).

V. Lesser Included Offense

¶18 Finally, Bran argues that Counsel provided ineffective 

assistance by failing to request a jury instruction on the lesser 

included offense of sexual battery and that the district court 

plainly erred by not providing such an instruction even without 

the request. First, Bran does not attempt to show there was a 

basis for a lesser-included-offense instruction on sexual battery; 

that is, he does not explain how “there is a rational basis for a 

verdict acquitting the defendant of the offense charged and 

convicting him of the included offense,” see Utah Code Ann. 

§ 76-1-402(4) (LexisNexis 2017). Furthermore, “even when there 

is a basis for a lesser-included-offense instruction, counsel can 

reasonably decide not to request one.” State v. Hull, 2017 UT App 

 

9. Bran’s argument identifies other pieces of evidence that he 

sees as supportive of his version of events. But “the existence of 

conflicting evidence alone cannot justify taking the case away 

from the jury.” State v. Torres, 2018 UT App 113, ¶ 21, 427 P.3d 

550.
State v. Bran

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233, ¶ 16, 414 P.3d 526. “[C]ounsel could reasonably pursue an 

‘all or nothing defense’ when, in light of the weaknesses in the 

State’s evidence of the case, it would be reasonable for counsel to 

conclude that submitting a lesser included offense instruction 

would obviate a defendant’s reasonable chances of a full 

acquittal.” State v. Powell, 2020 UT App 63, ¶ 43, 463 P.3d 705. 

Furthermore, “counsel does not perform deficiently by failing to 

request a lesser included offense instruction that is inconsistent 

with the defense presented at trial.” Id.

¶19 Counsel may have concluded the State’s case against Bran 

was weak (indeed, Bran expresses the same viewpoint on 

appeal) and reasonably elected an all-or-nothing defense. 

Additionally, a jury instruction on sexual battery would have 

been inconsistent with Bran’s theory of the case below—that he 

did not touch Patient inappropriately but, instead, she felt 

referred sensations from appropriate massage procedures. For 

these reasons, Counsel did not perform deficiently by not 

requesting an instruction on sexual battery. And where Counsel

reasonably did not request such an instruction, the district court 

did not commit plain error by failing to give a lesser-includedoffense instruction on sexual battery that was never requested.

CONCLUSION

¶20 The district court did not err by allowing testimony 

regarding Patient’s crying. Nor has Bran shown that the district 

court committed plain error or that Counsel rendered ineffective 

assistance relating to the other issues raised. We therefore affirm.