State v. Jok , 2019 UT App 138 ( 2019 )

2019 UT App 138THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JOHN ATEM JOK,
Appellant.
Opinion
No. 20180138-CA
Filed August 15, 2019
Third District Court, Salt Lake Department
The Honorable Ann Boyden
The Honorable Vernice S. Trease
No. 121908775
Andrea J. Garland, Attorney for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.
MORTENSEN, Judge:
¶1 John Atem Jok was accused of sexually assaulting an
acquaintance (Victim) while she slept. Jok was charged with and
convicted at a bench trial of two counts of sexual battery.
Alleging that Victim’s testimony was inherently improbable, Jok
contends that there was insufficient evidence to convict him, and
he appeals. We affirm.
State v. Jok
BACKGROUND 1
The Crime
¶2 Victim lived in a two-bedroom apartment she shared with
a friend (Roommate). Roommate’s three children and boyfriend
also lived at the apartment, although the boyfriend was not
present on the night in question. Roommate and her children
slept in the two bedrooms, and Victim slept on one of the
apartment’s two couches, where she kept sheets, pillows, and
blankets for that purpose. She had previously been living with
her mother, and although she had a learning disability and was
receiving Social Security disability benefits, she moved in with
Roommate because she wanted to be on her own.
¶3 Accompanied by Roommate’s friend (Friend), Jok and
another man, David Deng Akok, visited the apartment around 5
p.m. on September 15, 2012. 2 Victim knew Friend, but she had
never met Jok or Akok. Jok, Akok, Friend, Roommate, and
Victim listened to music and drank beer for an hour, at which
time Akok left to drive Friend to work. Jok stayed at the
apartment, sitting on the living room couch until Akok returned.
Upon Akok’s return about fifteen minutes later, Jok and Akok
left to purchase more alcohol. They returned with a bottle of
vodka and a case of beer. Jok, Akok, Roommate, and Victim
1. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite
the facts consistent with that standard. However, we present
conflicting evidence to the extent necessary to clarify the issues
raised on appeal.” State v. Nichols, 2003 UT App 287, ¶ 2 n.1, 76
P.3d 1173 (cleaned up).
2. The facts recounted here are drawn from Victim’s trial
testimony, unless otherwise specified.
20180138-CA 2 2019 UT App 138State v. Jok
continued to drink and listen to music. Jok and Akok drank beer,
and Victim drank vodka mixed with juice. Victim stated that she
stopped drinking before midnight because she never drinks on
Sunday.
¶4 Roommate went to bed in her room around 1 a.m.
Sometime later, Victim fell asleep on the couch where she
typically slept. Although she did not remember what time she
fell asleep, she recalled that she had a headache and was still
wearing her t-shirt, bra, underwear, and pants. Victim said that
Jok and Akok were sitting on the couch with her when she fell
asleep, but she expressed some confusion about their relative
locations.
¶5 Victim testified at trial that she awoke to Jok and Akok
trying to touch her. Jok placed his hands under Victim’s shirt
and touched her breasts. She told him to stop and pushed his
hands away, and he said “okay” and stopped rubbing her
breasts. But Jok then moved his hand under Victim’s pants and
underwear, putting his finger inside her vagina. Victim said that
she felt a “[s]harp pain,” she told Jok “no” and to stop, and Jok
then stopped touching her.
¶6 After Jok stopped touching her, Victim said that Akok
began touching her, got on top of her, and pulled down her
pants and underwear. She pulled them back up, but he pulled
them down again, pinned Victim with his hands, and raped her.
Victim begged, “Please, no, . . . stop.” Victim recalled asking
Akok to stop more than ten times. While Akok was raping
Victim, Jok sat on another couch and said, “It’s okay.” Victim
did not call out to Roommate for help during the rape because
she thought Akok and Jok “would stop” in response to her
saying “no.”
¶7 Victim was able to get up after Akok “was done.” Akok
wanted her to go to his house “to sleep in his bed,” but Victim
declined and told him she was staying at her apartment. She
20180138-CA 3 2019 UT App 138State v. Jok
went to the bathroom to clean up and then into her Roommate’s
bedroom to tell her what had happened. Roommate and Victim
told Jok and Akok to leave the apartment, but the two men
refused. Roommate then called the police.
¶8 When the police arrived at about 6:30 a.m., they
encountered Jok outside the apartment. He was “stumbling,”
had a hard time walking a straight line, smelled of alcohol, and
had bloodshot eyes. Police also found Akok inside the apartment
lying near the entrance. Both Jok and Akok appeared to be
intoxicated. When a detective attempted to interview the two
men, she was unable to understand Jok because his speech was
slurred; Akok was entirely unresponsive.
¶9 Some of the details Victim offered to the police—given by
means of a statement to an officer and witness report during the
immediate investigation—varied from the testimony she offered
at trial, which is recounted above. See supra ¶¶ 3–7. 3 She told
police that after Roommate had gone to bed at 1 a.m., she was
lying on the couch when Akok began to make inappropriate
sexual comments toward her and physically touch her. After
going into the bathroom to clean up, she found Jok and Akok
still seated in the living room area. Although she was upset
about what had happened, she lay down on the couch and tried
to go to sleep. She told police that Akok raped her and then Jok
fondled her breasts and touched her vagina numerous times in
an attempt to penetrate it with his finger. In her witness
statement, Victim wrote that Akok had touched her before Jok.
¶10 After giving her statement, Victim went to the hospital for
an examination by a sexual assault nurse examiner (Nurse).
3. When confronted with these discrepancies at trial, Victim
testified that she “had it mixed up” with regard to certain details
when she made the statements to the police.
20180138-CA 4 2019 UT App 138State v. Jok
Victim told Nurse that after Roommate went to bed, she fell
asleep on the couch. She awoke to Akok kissing her on the
mouth and touching her breasts. Akok then pulled down her
pants and underwear and forced her to have sex. Victim said
that Jok then pulled up her bra and touched her breasts. She also
disclosed that Jok had touched her vagina and anus with his
hand. 4 Nurse stated that she was “surprised at the amount of
injury” (namely, redness, swelling, a one centimeter laceration)
to Victim’s genitalia and that the one centimeter bruise-like
injury to Victim’s hymen “is more consistent with digital
penetration, a penetration by a finger. I don’t often see injury to
the hymen when there is not [a] report of digital penetration.”
¶11 After the physical examination, a detective assigned to the
case interviewed Victim. Victim told the detective that after the
incident with Akok, she went to the bathroom, came back to the
couch, slept for four hours, and awoke to Jok touching her.
¶12 Roommate also filled out a witness statement for police,
maintaining that Jok and Akok were “drinking and hanging
out” at the apartment when she went to bed at 1 a.m. Roommate
stated that Victim came into her room at around 6 a.m. and told
her that Akok had forced her to have sex, that Jok had touched
her, and that “she told them to stop but they wouldn’t.”
¶13 A DNA analyst (Analyst) determined that a sample of
sperm cells from a vaginal swab matched Akok’s DNA. No other
male’s DNA was detected on the swabs. Analyst explained that
“touch DNA” is more difficult to detect because vaginal fluid
tends to slough off the small amount of genetic material
deposited by mere touching.
4. Victim did not initially tell Nurse that Jok had touched her
vagina. Victim shared this information in response to Nurse’s
questions.
20180138-CA 5 2019 UT App 138State v. Jok
Procedural History
¶14 The State charged Jok with two counts of forcible sexual
abuse and Akok with rape, and the two men were tried together
before a jury. The State’s witnesses included Victim, several
police officers, Nurse, and Analyst. 5 These witnesses testified
that (1) Jok and Akok had come to the apartment for a visit,
(2) Victim fell asleep on a couch in the living room, (3) Jok had
touched Victim’s breasts and digitally penetrated her vagina,
(4) Akok raped Victim, (5) Victim informed Roommate of the
sexual assault, and (6) Roommate called the police.
¶15 At the close of the State’s case, Akok made a motion “for
directed verdict of acquittal for the insufficiency of the
evidence.” Jok joined this motion and additionally asked for a
judgment of acquittal “based on [Victim’s] testimony that when
she was touched by [Jok], she said no, [and] he stopped.” The
district court asked whether the basis of both motions was “the
credibility of [Victim’s] testimony.” Jok’s counsel responded,
“Yes,” but neither defendant presented any specific reason why
Victim’s testimony lacked credibility or suggested that Victim’s
testimony was so inherently improbable that the district court
should disregard it. The State argued that Victim’s credibility
was “going to be an issue for the jurors to decide.” The State also
pointed out that Jok’s “one free touch” theory had no legal basis.
The district court denied the motions for directed verdict,
stating,
There has been sufficient evidence to support all of
the charges as they are for a trier of fact to now at
least address that. Specifically to the credibility, it
will just go to weight[,] and . . . there is no legal
5. The State subpoenaed Roommate to appear at trial, but the
process server was unable to locate her.
20180138-CA 6 2019 UT App 138State v. Jok
basis for just saying because the positions were
changed and the different body parts were
involved that it doesn’t support two potential
verdicts[,] one on each of the forcible sexual abuse.
¶16 The jury convicted Jok and Akok as charged. Jok and
Akok appealed, asserting that prosecutorial misconduct
occurred in closing argument. This court agreed and vacated the
judgments of conviction. State v. Jok, 2015 UT App 90, ¶¶ 11, 15,
348 P.3d 385; State v. Akok, 2015 UT App 89, ¶¶ 14, 30, 348 P.3d
377.
¶17 On remand, Jok, represented by new counsel, agreed to a
bench trial, 6 using the transcript of the first trial as evidence
instead of presenting the evidence again. 7 The parties stipulated
to the district court receiving Roommate’s statement—that
Victim went into Roommate’s room and told her that “[Akok]
forced her to have sex and that [Jok] was touching her and she
told them to stop but they wouldn’t”—because Roommate was
unavailable to testify. Jok declined to testify, and the defense
rested without presenting additional evidence. In closing, Jok’s
counsel attacked Victim’s credibility, noting that Victim was
intoxicated, that only Akok’s DNA was found on the vaginal
swabs, and that Victim’s physical injuries were consistent with
6. On remand, the State amended the charges against Jok to two
counts of sexual battery, each a class A misdemeanor. Jok had
been in custody over three years at the time of his bench trial,
exceeding the maximum sentence of one year each he faced on
the amended charges, and would consequently not face
additional time in custody if convicted on remand. This
circumstance may explain why Jok agreed to a bench trial on
remand.
7. On remand, Akok pled guilty to attempted rape.
20180138-CA 7 2019 UT App 138State v. Jok
digital penetration by Akok, and arguing that “the physical
evidence contradict[ed] [Victim’s] statements and . . . that her
statements alone [were not] sufficient to prove the case beyond a
reasonable doubt.”
¶18 The district court stated that it had “considered all of the
evidence as a whole and [found] that the physical circumstances,
the medical testimony, [and] the DNA testimony combined to
corroborate, to support what [Victim] said happened.” The court
convicted Jok on both counts of sexual battery, sentenced him to
one year in jail on each, and closed the case with credit for time
served. Jok appeals.
ISSUE AND STANDARD OF REVIEW
¶19 Jok contends that he was improperly convicted on
insufficient evidence, arguing that Victim’s allegations against
him were inherently improbable. “We will reverse a guilty
verdict for insufficient evidence only when the evidence is so
inconclusive or inherently improbable that reasonable minds
must have entertained a reasonable doubt that the defendant
committed the crimes of which he was convicted.” State v.
Carrell, 2018 UT App 21, ¶ 21, 414 P.3d 1030.
ANALYSIS
¶20 The focus of this appeal is Jok’s contention that the
evidence was insufficient to convict him of sexual battery,
because Victim’s testimony “was too inherently improbable to
support the verdict.” 8 In State v. Robbins, our supreme court
8. We do not address whether, in a bench trial, the issue of
inherent improbability needs to be specifically raised before the
trial court in the first instance in order to preserve the issue for
(continued…)
20180138-CA 8 2019 UT App 138State v. Jok
articulated the “scope of the inherent improbability doctrine.”
2009 UT 23, ¶ 13, 210 P.3d 288. A court can “reevaluate the jury’s
credibility determinations only in those instances where (1) there
are material inconsistencies in the testimony and (2) there is no
other circumstantial or direct evidence of the defendant’s guilt.
The existence of any additional evidence supporting the verdict
prevents the judge from reconsidering the witness’s credibility.”
Id. ¶ 19. In State v. Prater, our supreme court clarified Robbins’s
two-prong formulation of the inherent-improbability doctrine by
stating that it is “inconsistencies in the [witness’s] testimony plus
the patently false statements the [witness makes] plus the lack of
any corroboration that [allows a] court to conclude that
insufficient evidence [supports a defendant’s] conviction.” 2017
UT 13, ¶ 38, 392 P.3d 398. This “narrow” formulation of the
doctrine found in Robbins and Prater presents “a significant
barrier in succeeding on claims of inherent improbability.” State
v. Cady, 2018 UT App 8, ¶¶ 17–18, 414 P.3d 974. Thus, “[i]t is
(…continued)
appeal. We note that normally, after a bench trial, a party may
question the sufficiency of the evidence on appeal regardless of
any failure to raise that issue below. See State v. Holland, 2018 UT
App 203, ¶ 9, 437 P.3d 501 (“Unlike challenges to a jury verdict, a
defendant need not file a separate motion or make a separate
objection to challenge the sufficiency of the evidence supporting
the court’s factual findings in a bench trial.”); see also Utah R.
Civ. P. 52(a)(3).
Likewise, we do not address the question of whether the
inherent-improbability doctrine applies at all to bench trial
verdicts, where the trial court has presumably not only
determined that sufficient evidence existed but that this
evidence met the burden of proof beyond a reasonable doubt.
See State v. Robbins, 2009 UT 23, ¶ 19, 210 P.3d 288 (stating that a
court can “reevaluate the jury’s credibility determinations” in
limited circumstances (emphasis added)).
20180138-CA 9 2019 UT App 138State v. Jok
difficult to successfully establish such a claim on appeal.” Id.
¶ 18; see also State v. Doyle, 2018 UT App 239, ¶ 17, 437 P.3d 1266(stating that “the inherent improbability doctrine has very
limited applicability and comes into play only in those
instances” that satisfy the approach adopted in Robbins and
Prater (cleaned up)); State v. Ray, 2017 UT App 78, ¶ 25, 397 P.3d
817 (“‘Inherent improbability’ is a distinction reserved for . . .
comparatively rare instances; it does not apply more generally to
cases involving a victim’s incredibility—not even significant
incredibility.”), cert. granted on other grounds, 406 P.3d 250 (Utah
2017); State v. Black, 2015 UT App 30, ¶ 20, 344 P.3d 644 (stating
that inherent improbability applies in “certain limited
circumstances”).
¶21 Jok argues that Victim’s testimony was inherently
improbable under the Robbins/Prater test. Specifically, he argues
that Victim’s testimony did not support the verdict, because
“(1) it was materially inconsistent; (2) it contained patently false
statements; and (3) there was no other circumstantial or direct
evidence that supported Jok’s guilt.” We disagree with Jok on
each point.
I. The Absence of Material Inconsistencies in Victim’s Testimony
¶22 Victim’s testimony is not materially inconsistent. “The
mere fact that [Victim’s] account changes between her initial
interview with police and her testimony at trial is by itself
insufficient” to establish material inconsistency. See State v.
Carrell, 2018 UT App 21, ¶ 53, 414 P.3d 1030. To satisfy the
material inconsistency element of the Robbins/Prater test, Victim’s
“testimony at trial must be internally inconsistent; the fact that
[Victim’s] trial testimony is somewhat at odds with other
evidence in the case, including perhaps [Victim’s] own prior
statement, is not enough to render that testimony inherently
improbable.” See id. (cleaned up); State v. Prater, 2017 UT 13,
¶ 39, 392 P.3d 398 (“The three witnesses’ pre-trial inconsistent
20180138-CA 10 2019 UT App 138State v. Jok
statements do not render their testimony apparently false. The
question of which version of their stories was more credible is
the type of question we routinely require juries to answer.”
(cleaned up)); State v. Torres, 2018 UT App 113, ¶ 22, 427 P.3d 550(“A [factfinder] could have reasonably concluded that the
differences between the victim’s prior statements and her
testimony at trial were due to the victim previously providing
incomplete statements, the officer misreporting her statement, or
a simple misunderstanding.”). Differences expressed in
testimony concerning details, such as the relative location of
individuals, do not in this context rise to the level of materiality.
Furthermore, “inconsistencies with respect to peripheral issues
or details of the abuse will generally not implicate the inherent-
improbability doctrine but are matters for the [factfinder] to
resolve in assessing the witness’s credibility.” State v. Kamrowski,
2015 UT App 75, ¶ 16, 347 P.3d 861; see also State v. Fletcher, 2015
UT App 167, ¶ 9, 353 P.3d 1273 (stating that “mere[] details
supporting” a “primary assertion” are not material “but instead
are within the range of normal, but flawed, human recollection—
something that juries are capable of sorting through”).
¶23 Jok contends that Victim’s statements to investigating
police officers were materially inconsistent with the testimony
she offered at trial. Specifically, Jok contends that Victim’s
statements and testimony were inconsistent regarding when Jok
and Akok touched her, who touched her first, and where Jok and
Akok were sitting when the touching occurred. Jok also
contends that Victim was inconsistent about knowing the color
of Akok’s car, whether she kept her pillows on the couch during
the day, how much alcohol she drank, and the number of
minutes she remained on the floor of Roommate’s bedroom
before she told her of the rape and sexual battery. But as we
articulated in Carrell, to be materially inconsistent, Victim’s
“testimony at trial must be internally inconsistent.” 2018 UT App
21, ¶ 53 (emphasis added). The mere fact that Victim’s trial
testimony varies to some degree with statements she made to
20180138-CA 11 2019 UT App 138State v. Jok
investigating officers shortly after the abuse occurred “is not
enough to render that testimony inherently improbable.” Id.(cleaned up). In sum, the details of Victim’s statements that Jok
cites as evidence of inconsistency are merely “peripheral issues
or details,” see Kamrowski, 2015 UT App 75, ¶ 16, that do not cast
doubt on Victim’s central allegation that Jok committed sexual
battery by touching her without her consent.
II. The Lack of Patently False Statements in Victim’s Testimony
¶24 There is no indication of patent falsity in Victim’s
testimony. Jok contends that Victim’s statement that she
returned to the couch to sleep after being raped by Akok was
“patently false” because a person “who ha[d] just been raped
would [not] go back to the same couch in the same room as the
rapist and his friend and sleep for four hours.” Jok’s assertion
about Victim’s behavior is not well taken. We note that Victim
did not so testify at trial, 9 but even if she had, characterizing
such a statement as “patently false” reflects an unfounded
stereotype about the behavior of rape victims. As the State points
out, Jok’s argument ignores the reality that rape victims display
a diverse range of reactions to the harm they suffered. See, e.g.,
Doe v. Westmont College, 246 Cal. Rptr. 3d 369, 377 (Ct. App. 2019)
(“Victims often feel shame after [a sexual] assault, and may even
take responsibility for it.”); State v. Sullivan, 712 A.2d 919, 922 n.5
(Conn. 1998) (“[T]he assumption that it is ‘natural’ for victims to
report that they have been sexually assaulted has been largely
discredited by modern research indicating that victims may not
tell others about a sexual assault owing to feelings of shame or
9. Victim did not testify at trial that she returned to the couch to
sleep after being raped. Rather, this detail was gleaned from her
statement to a police officer investigating the crime shortly after
it was reported. At trial, Victim stated that she woke to Jok
touching her, after which Akok raped her.
20180138-CA 12 2019 UT App 138State v. Jok
fear of public embarrassment.”); People v. Bowen, 609 N.E.2d 346,
357 (Ill. App. Ct. 1993) (“A delay in reporting incidents of sexual
assault may be reasonable where the victim’s silence is
attributed to fear, shame, guilt and embarrassment.”); State v.
Obeta, 796 N.W.2d 282, 294 (Minn. 2011) (noting that “most states
now allow some form of expert testimony that describes typical
counterintuitive behaviors exhibited by adult victims of sexual
assaults”). Thus, even if Victim did return to the couch after
being raped by Akok, such behavior in no way suggests that her
testimony is “patently false.” Rather, it can be explained by any
number of possible human reactions to having just been raped,
including shame, shock, resignation, humiliation, fear,
embarrassment, confusion, and/or disbelief. 10
10. At oral argument and in his reply brief, Jok contends that
Victim’s testimony that during the rape Akok held her wrists
down with both hands while simultaneously pulling down her
pants with another hand rendered her testimony internally
inconsistent and patently false because such a description
required Akok to have three hands. We are not persuaded,
because this alleged inconsistency has a reasonable explanation.
Akok could have begun by using both hands to pin Victim’s
wrists, then once he overpowered her, he could have continued
to hold her wrists with one hand while using the other to pull
down her pants, or he could have temporarily let go of one wrist
while he pulled her pants down. Victim may have simply been
struggling to explain the circumstances of the rape. See State v.
Ruiz, 2012 UT App 42, ¶ 4, 272 P.3d 185 (“The [factfinder] may
well have concluded that the inconsistencies in the victim’s
testimony were not a product of fabrication but rather of her
language limitations and cognitive impairment.”). The actual
question to which Victim answered, “Yes,” was whether the
rapist, “in some fashion while still holding [her] down,” was
able to move her legs and pull her pants down. We do not read
(continued…)
20180138-CA 13 2019 UT App 138State v. Jok
III. Other Corroborating Evidence
¶25 Additional evidence corroborates Victim’s testimony. Jok
contends that the State presented no “other evidence to
corroborate [Victim’s] allegation specific to Jok.” But contrary to
Jok’s argument, our inherent-improbability case law does not
require evidence corroborating the specific-offense conduct or
elements of the offense. As our supreme court noted in State v.
Robbins, the “existence of any additional evidence supporting the
verdict prevents the judge from reconsidering the witness’s
credibility” under the inherent-improbability doctrine. 2009 UT
23, ¶ 19, 210 P.3d 288; see also State v. Crespo, 2017 UT App 219,
¶ 27, 409 P.3d 99 (stating that under the “inherent improbability
standard,” the credibility of a witness’s testimony may be
reassessed only when such testimony “is the sole evidence that a
crime was even committed and there is a complete lack of
circumstantial evidence” (cleaned up)). Thus, for Jok to succeed
on this element of inherent improbability, he must show that
there was a complete lack of any additional circumstantial
evidence supporting the verdict. He has failed to do so.
¶26 As the district court found, additional evidence
corroborated Victim’s testimony about the sexual assault she
suffered at the hands of Jok. The district court expressly stated
that it had “considered all of the evidence as a whole and
[found] that the physical circumstances, the medical testimony,
[and] the DNA testimony combined to corroborate, to support
what [Victim] said happened.”
¶27 Undisputed evidence regarding the physical
circumstances supports Victim’s account. Jok and Akok were at
(…continued)
this testimony as being possible only if the rapist had three arms,
and we do not consider this testimony to be demonstrably false.
20180138-CA 14 2019 UT App 138State v. Jok
Victim’s apartment. They were drinking and stayed there after
Roommate went to bed. At some point, Victim reported to
Roommate that Jok had sexually assaulted her and that Akok
had raped her. Victim reported the essential elements of these
events to police investigators and Nurse the next morning. While
it is true that Victim’s account varied somewhat with regard to
timing and the location of Jok and Akok, she was consistent with
regard to the material facts of her assertion—that Jok touched
her and Akok raped her. See State v. Fletcher, 2015 UT App 167,
¶ 9, 353 P.3d 1273; supra ¶ 22.
¶28 The medical testimony also supports Victim’s account.
Victim testified that she felt a “sharp pain” when Jok penetrated
her vagina with his finger. Nurse observed an injury to
Victim’s vagina, specifically an identifiable one-centimeter
laceration and a one-centimeter bruise to the hymen that were
more consistent with digital penetration than with penile
penetration. In fact, Nurse testified that, while the injury could
have been caused by nonconsensual penile penetration, in her
experience of examining sexual assault victims, she has seen
similar injury to the hymen only when there has been a
complaint of digital penetration. Indeed, when specifically asked
whether it was “possible that an injury to the hymen could be
caused by penile penetration,” Nurse answered, “It’s possible
but not probable.”
¶29 Finally, DNA evidence corroborates Victim’s testimony,
albeit in an indirect manner. Put simply, Victim testified that
(1) she was alone in the living room with Akok and Jok and
(2) one man raped her and the other man touched her
breasts and digitally penetrated her without consent. The DNA
evidence conclusively established that Akok was the man who
raped Victim. That fact leaves Jok as the other man who
committed sexual battery. Certainly, the DNA evidence rebuts
any assertion that the claim of sexual activity was completely
fabricated.
20180138-CA 15 2019 UT App 138State v. Jok
¶30 Thus we conclude that Victim’s testimony was not
inherently improbable under the test articulated by our supreme
court in Robbins, 2009 UT 23, and State v. Prater, 2017 UT 13, 392
P.3d 398. We view Jok’s attack on Victim’s credibility “to be a
garden-variety claim of insufficient evidence that he
unsuccessfully tries to fit into the inherent-improbability box.”
See State v. Cady, 2018 UT App 8, ¶ 22, 414 P.3d 974. And when
the evidence is disputed as it was in this case, it is not for the
court to resolve the conflict by declaring testimony inherently
improbable; rather, the factfinder “serves as the exclusive judge
of both the credibility of witnesses and the weight to be given to
particular evidence.” State v. Black, 2015 UT App 30, ¶ 19, 344
P.3d 644 (cleaned up).
CONCLUSION
¶31 Jok’s assertion that he was convicted on insufficient
evidence because Victim’s testimony was inherently improbable
fails. We conclude that Victim’s testimony was not materially
inconsistent, patently false, or uncorroborated by other evidence.
¶32 Affirmed.
20180138-CA 16 2019 UT App 138