State v. Duran

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 59
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
PATRICK F. DURAN,
Defendant and Appellant.
Memorandum Decision
No. 20120875-CA
Filed March 20, 2014
Second District Court, Ogden Department
The Honorable W. Brent West
No. 101902268
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
SENIOR JUDGE RUSSELL W. BENCH authored this Memorandum
Decision, in which JUDGES JAMES Z. DAVIS and JOHN A. PEARCE
concurred.1
BENCH, Senior Judge:
¶1 Defendant Patrick F. Duran appeals from his conviction for
possession of a controlled substance. He argues that his trial
counsel was ineffective in failing to file a motion to suppress and
in failing to object at trial to certain gang-related statements. We
affirm.

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20120875-CA 2 2014 UT App 59
¶2 “An ineffective assistance of counsel claim raised for the first
time on appeal presents a question of law.” State v. Clark, 2004 UT
25, ¶ 6, 89 P.3d 162. “[A] defendant raising an ineffectiveness claim
must show first, that his counsel rendered a deficient performance
in some demonstrable manner, which performance fell below an
objective standard of reasonable professional judgment and,
second, that counsel’s performance prejudiced the defendant.”
State v. Kelley, 2000 UT 41, ¶ 25, 1 P.3d 546 (citation and internal
quotation marks omitted). “Failure to raise futile objections does
not constitute ineffective assistance of counsel.” Id. ¶ 26.
I. Motion to Suppress
¶3 Late one night in September 2010, three officers from the
Ogden Metro Gang Unit were conducting surveillance at an inn in
Ogden, Utah, after receiving a tip that drugs were being sold out
of that location. The first officer was stationed in an alley behind
the inn. He saw two men walking near the inn and then saw the
men change their direction of travel upon seeing him. The first
officer alerted the other two officers via radio that the two men
were heading their way, and two of the officers watched the two
men jaywalk across the street in front of the inn. The second officer
approached one of the men, and the other man continued walking,
looking back at the second officer. The third officer then
approached this man, and as he did so, he saw the man walk
between two cars and drop something white. This third officer
recognized the man who dropped something as Duran and told
him to stand and wait in front of his unmarked police car. The
officer then walked over to see what Duran had dropped and
retrieved a white paper tissue that contained methamphetamine.
Duran now argues that he was unconstitutionally seized because
the officer did not have reasonable suspicion of a drug violation
when he detained Duran in front of the police car.
¶4 Certainly “[t]he Fourth Amendment’s protections against
unreasonable searches and seizures ‘extend to brief investigatory
stops of persons or vehicles that fall short of traditional arrest.’”

State v. Duran
2. Indeed, Duran has consistently admitted that he did jaywalk
across the street.
20120875-CA 3 2014 UT App 59
State v. Markland, 2005 UT 26, ¶ 10, 112 P.3d 507 (quoting United
States v. Arvizu, 534 U.S. 266, 273 (2002)). When police violate this
protection, evidence obtained therefrom must generally be
excluded. State v. Deherrera, 965 P.2d 501, 503–04 (Utah Ct. App.
1998). However, there are certain permissible levels of police stops.
“[I]t is settled law that ‘a police officer may detain and question an
individual when the officer has reasonable, articulable suspicion
that the person has been, is, or is about to be engaged in criminal
activity.’” Markland, 2005 UT 26, ¶ 10 (quoting State v. Chapman, 921
P.2d 446, 450 (Utah 1996)).
¶5 Duran’s argument focuses on whether the officer had
reasonable, articulable suspicion that Duran was involved in drug-
related wrongdoing sufficient to justify his detention. Duran
concedes, however, that the officer could have properly concluded
that Duran jaywalked across the street and that he dropped2
something on the ground. These facts alone are evidence of
wrongdoing. See Utah Code Ann. § 41-6a-1003(3) (LexisNexis 2010)
(“Between adjacent intersections at which traffic-control signals are
in operation, a pedestrian may not cross at any place except in a
marked crosswalk.”); id. § 76-10-2701(1) (2012) (“A person may not
throw, deposit, or discard, or permit to be dropped, thrown,
deposited, or discarded on any park, recreation area, or other
public or private land, or waterway, any . . . trash or garbage,
paper or paper products, or any other substance which would or
could mar or impair the scenic aspect or beauty of the land in the
state . . . .”). Thus, even if reasonable suspicion were lacking as to
any drug-related wrongdoing, the facts observed by the officer
gave rise to reasonable suspicion that Duran had committed other
offenses. The brief detention was therefore allowed. Because
Duran’s Fourth Amendment rights were not violated, a motion to
suppress on these grounds would have been unsuccessful, and trial

State v. Duran
20120875-CA 4 2014 UT App 59
counsel was not ineffective for failing to file such a futile motion,
see State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546.
II. Gang References
¶6 Duran also challenges his trial counsel’s failure to object to
several gang references on relevance and prejudice grounds. He
argues that the gang references were not relevant, see generally Utah
R. Evid. 402 (“Irrelevant evidence is not admissible.”), and that
even if they were, the references should have been excluded due to
their potential for unfair prejudice, see generally id. R. 403 (“The
court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice . . . .”).
¶7 Mention of gangs was limited to one piece of information,
expressed three different times over the course of the trial. First, the
prosecutor argued in his opening statement,
As [Duran] spoke to [the officer,] he admitted
that the tissue—the substance in the tissue was his.
He said he had bought it from a Jose in South Ogden.
He couldn’t give any more detail than that other than
to say that Jose was part of a Mexican gang.
When the officer was questioned at trial, the same reference to Jose
was mentioned:
Then [I] brought [Duran] back to my car, gave
him his Miranda rights. He waived his rights, wanted
to speak to me. We started talking about the drugs.
He did tell me that it was his, and that he had
purchased it from Jose. He says Jose lived in South
Ogden. He couldn’t give me an address. He says that
Jose was part of Pisas. Pisas are part of the Mexican
cartel that deliver and deal drugs. So that’s stuff that
I’ve known from past experiences because I used to

State v. Duran
20120875-CA 5 2014 UT App 59
work with the narcotics strike force. So that was
about it.
Finally, in closing arguments, the prosecutor stated,
The further testimony was that [Duran] spoke
to [the officer]. He admitted to knowing to
possessing the methamphetamine. He admitted to
[the officer] that he had bought it from a gentleman
in south Ogden, somebody named Jose, somebody
who belonged with the Pisas Mexican gang. Those
are all—
Defense counsel then objected to the gang reference on the ground
that there had been no testimony supporting it. The trial court
stated that a similar mention had been made in opening statements
and left it up to the jury members and their recollection as to
whether testimony had been offered on that point.
¶8 The one piece of gang-related information here, that the
person Duran purchased the drugs from was associated with Pisas,
is relevant. “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. “[E]ven evidence that is only slightly probative in
value is relevant.” State v. Martin, 2002 UT 34, ¶ 31, 44 P.3d 805. The
challenged evidence here satisfies this low standard of relevance.
The evidence that Duran said he bought the drugs from a member
of Pisas—a gang associated with a drug cartel—arguably
supported the prosecution’s assertion that Duran knowingly
possessed the methamphetamine and helped establish the specifics
of Duran’s confession.
¶9 And we are not convinced that the gang-related information
was unfairly prejudicial. “[W]hile no Utah precedent has stated
that gang references automatically taint juries, we have viewed
such evidence with caution due to the risk that it may carry some

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unfair prejudice.” State v. High, 2012 UT App 180, ¶ 26, 282 P.3d
1046 (citation and internal quotation marks omitted). But certainly
the risk of unfair prejudice is far greater in those cases where the
evidence shows a defendant’s own membership in or affiliation
with a gang, as opposed to simply referencing some limited
interaction a defendant had with a gang member. Cf. id. (“‘[A]n
individual’s [gang] membership . . . is likely to provoke strong
antipathy in a jury.’” (alterations and omission in original) (quoting
United States v. Jernigan, 341 F.3d 1273, 1285 (11th Cir. 2003)); id.
(“[G]ang references may lead the jury to ‘attach a propensity for
committing crimes to defendants who are affiliated with gangs or
[allow its] negative feelings toward gangs [to] influence its
verdict.’” (second and third alterations in original) (quoting State
v. Torrez, 2009-NMSC-029, ¶ 32, 210 P.3d 228)). Here, we see little
risk of unfair prejudice where there was no suggestion made that
Duran was a member of Pisas or in any way affiliated with it. The
evidence was only that Duran bought drugs from someone in
South Ogden who he knew was a member of Pisas. Indeed, the
evidence was that Duran knew nothing else about this Jose,
actually supporting a contrary inference that Duran was not
affiliated with Pisas. And it is unlikely that Duran’s purchase of
drugs from a gang member (as opposed to a non-gang-affiliated
drug dealer) would have influenced the jury’s finding that Duran
possessed the methamphetamine.
¶10 Thus, considering the character of the gang references and
the lack of any suggestion that Duran himself was affiliated with
the gang, we do not see that the evidence’s relevance was
substantially outweighed by a danger of unfair prejudice.
Therefore, any objection on prejudice grounds would have been
futile and defense counsel was not ineffective for failing to make
such an objection, see State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546.
¶11 Further, even were we convinced that the gang-related
references were improper, we would determine that those
statements were harmless. We do not agree with Duran that the
prosecution’s treatment of Jose’s gang membership can be

State v. Duran
20120875-CA 7 2014 UT App 59
characterized as “extensive highlighting.” In each of the three
references, Jose’s gang affiliation was briefly mentioned as a
supporting detail, with the speaker quickly moving on from that
point to other material. Each reference was only a few lines of the
161-page transcript. These factors support our determination that
the gang references here were harmless. See State v. Toki, 2011 UT
App 293, ¶¶ 47–48, 263 P.3d 481 (determining that the introduction
of unfairly prejudicial gang-related evidence was harmless where,
among other factors, “the prosecutor did not take unfair advantage
of the gang-related testimony” and the evidence “was a small part
of the big picture—just thirteen pages out of the 681-page
transcript”).
¶12 Affirmed.