State v. Escobar-Florez , 2019 UT App 135 ( 2019 )

2019 UT App 135THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JUAN CARLOS ESCOBAR-FLOREZ,
Appellant.
Opinion
No. 20170390-CA
Filed August 8, 2019
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 071907926
Deborah L. Bulkeley, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
FORSTER concurred.
POHLMAN, Judge:
¶1 Juan Carlos Escobar-Florez appeals his conviction for rape
of a child. He raises several claims of ineffective assistance of
counsel and has moved for remand for an evidentiary hearing
related to some of those claims. He also contends that the district
court erroneously instructed the jury on flight and erred in
denying his motion for a directed verdict. We deny his motion to
remand and affirm.
State v. Escobar-Florez
BACKGROUND 1
¶2 Escobar-Florez was renting a room in the basement of a
house in Salt Lake City, Utah, where his co-worker and co-
worker’s family also lived. One night in August 2007, Escobar-
Florez raped his co-worker’s thirteen-year-old stepdaughter
(Victim). He moved out immediately afterward, and although he
was charged with rape of a child in October 2007, he made
himself scarce and was not arrested until 2016.
¶3 At the final pretrial conference, Escobar-Florez’s trial
counsel indicated that he was ready to move forward with trial.
Trial counsel explained that although he had informed
Escobar-Florez that two law enforcement witnesses were “both
out [of] state” and “not available for trial,” Escobar-Florez
“want[ed] to go forward anyway.” Trial counsel further stated
that he would come to an agreement with the State “on how to
use [their] police reports at trial.” Trial counsel then noted that
he told Escobar-Florez that his own “preference would be to
continue the trial in light of the officers not being here,” but that
“it was [Escobar-Florez’s] decision that he wanted to go
forward.”
¶4 During the jury-selection process, the district court, at
trial counsel’s request, informed the potential jurors that
Spanish-language interpreters would be used, and the court
asked the potential jurors to indicate whether they “might not be
able to be fair to either the prosecution or the defense in light of
the fact that Spanish is the primary language of several of the
1. We recite the record facts “in a light most favorable to the
jury’s verdict,” and we “present conflicting evidence only as
necessary to understand issues raised on appeal.” State v.
Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (cleaned up).
20170390-CA 2 2019 UT App 135State v. Escobar-Florez
individuals involved in the case.” No potential juror indicated in
the affirmative.
¶5 When trial began, the prosecutor explained in her
opening statement that after committing the abuse,
Escobar-Florez “suddenly just disappear[ed].” The prosecutor
also mentioned that the investigating detective (Detective)
contacted Escobar-Florez and arranged an interview but that
“Escobar-Florez didn’t show up.” The prosecutor further stated
that Detective then went to Escobar-Florez’s workplace and was
told, “He doesn’t work here anymore. He quit, citing he had a
problem with the police.”
¶6 Trial counsel began his opening statement by admitting
that Escobar-Florez was born in El Salvador and “was in this
country illegally.” Trial counsel told the jury that it would be
able to see the police report made by the investigating police
officer (Officer). In that report, trial counsel asserted, the jury
would see that Victim made statements she did not repeat later,
including that she and Escobar-Florez had a boyfriend–girlfriend
relationship and had sex twice. Trial counsel also offered a
possible motive for Victim’s accusation of abuse—she had been
“out all night” and made the allegations only after being
confronted by her mother (Mother).
¶7 Victim testified at trial that, one night in August 2007, she
woke up in the middle of the night and left her basement
bedroom to go to the bathroom. According to Victim, when she
was leaving the bathroom to go back to sleep, Escobar-Florez
was standing right outside the bathroom door, and he “grabbed
[her] hand.” Victim told him to “let [her] go,” but instead
Escobar-Florez covered her mouth and took her to his bedroom,
closing the door behind them. Escobar-Florez laid Victim down
on the bed and pulled her hands to her back. When he took his
hand away from her mouth, Escobar-Florez told Victim “not to
scream or otherwise he was going to do some harm to [her]
20170390-CA 3 2019 UT App 135State v. Escobar-Florez
mom.” He then touched her breasts with his hand and began
kissing her neck. Escobar-Florez proceeded to “put his penis
inside [Victim’s] vagina,” causing her pain. Victim told him to
stop, but he did not and “was just laughing.” After he was done,
Victim went back to her room and cried. Victim saw
Escobar-Florez in the house the next day, but afterward she
never saw him again until the court proceedings. According to
Victim, her life changed “[i]n every way” and she was “all the
time locked in [her] room.” Victim testified that she first told a
friend about the abuse and later told Mother at a park after
school.
¶8 On cross-examination, Victim denied that she told Mother
about the abuse after she had stayed out the night before. She
denied that she had told the police that she and Escobar-Florez
were girlfriend and boyfriend and that they had sex twice. But
she admitted that, in one police interview, she said that Escobar-
Florez was sitting on the couch when she exited the bathroom on
the night in question.
¶9 Mother testified at trial that she suspected something had
happened with Victim when she noticed that Victim was
“different,” “very emotional,” and “scared.” According to
Mother, Victim was “not talking anymore,” “not playing or
going out,” and “didn’t leave her room.” When she asked Victim
what was wrong, Victim “didn’t want to say anything.” Mother
took Victim for a car ride during which Victim told Mother
about the abuse and said that Escobar-Florez threatened to harm
Mother. Mother then took Victim to a clinic and the hospital.
Mother testified that she noticed Victim’s behavior change while
Escobar-Florez was still living with them and that she did not
see Escobar-Florez again after Victim revealed the abuse. Mother
denied reporting that Victim told her about the abuse after
Victim had stayed out all night.
20170390-CA 4 2019 UT App 135State v. Escobar-Florez
¶10 Victim’s stepfather (Stepfather) testified similarly about
Victim’s change in behavior. According to Stepfather, he became
worried about Victim when he noticed she was “really quiet.”
About a week later, and within days after Escobar-Florez moved
out of the house, Victim told Stepfather about the abuse. And
after he moved out, Escobar-Florez no longer appeared at work
even though Stepfather used to see him there “[e]very morning.”
Stepfather added that the family moved out of the house about
three weeks after Escobar-Florez left, and he did not see him
again until trial.
¶11 A pediatrician testified regarding an examination of
Victim performed in September 2007. According to the report
from that examination, Victim told Mother about the abuse
several weeks after it happened and Mother and Victim stated
that the abuse happened on August 8 or 9. Victim stated that on
the night in question, Escobar-Florez was in the family room
when she came out of the bathroom. Victim said that he grabbed
her and took her to his room, where he undressed her and where
“his private went in her private.” When asked if it had gone in
“the front private and the back private,” Victim said “both.”
When Victim underwent a physical examination, no injuries
were observed, and tests showed that she did not have any
sexually transmitted diseases. The pediatrician could not
confirm whether Victim had had sex. Mother also stated,
according to the report from Victim’s examination and as elicited
on cross-examination, that the family had asked Escobar-Florez
to move out, he did not want to go, and so the family moved.
¶12 The Division of Child and Family Services (DCFS)
caseworker assigned to Victim’s case also testified. According to
the caseworker, Mother similarly reported to her that Escobar-
Florez refused to leave the house where he was a roommate and
that Mother and her family moved out instead. Mother also told
the caseworker that Victim disclosed the abuse to her after
having left the house in the middle of the night. Mother reported
20170390-CA 5 2019 UT App 135State v. Escobar-Florez
that she found Victim in the early morning hours near Escobar-
Florez’s workplace and that when she asked Victim why she ran
away, Victim said that she wanted to get Escobar-Florez to talk
to Mother about the incident.
¶13 The prosecution and the defense reached a stipulation
regarding the unavailability of Detective and Officer. The
prosecutor informed the court that “[b]ased on wanting this trial
to go forward, both counsel have stipulated to just introduce the
entirety of their police reports.” The prosecutor represented that
she had spoken with Detective and Officer and “[n]either one of
them has an independent recollection of anything about the
case” and “if [they] were called to testify, [they] would get on
the stand and essentially read their report.” In discussing how to
present the police reports to the jury, trial counsel commented
that he was “certainly going to be relying on [them] in [his]
closing argument.”
¶14 The district court read the stipulated facts to the jury.
Those stipulated facts included that Detective and Officer “were
the only officers involved in the investigation” and were
“unavailable to testify” at trial; if Detective and Officer “were to
testify, they would testify to what is contained in their reports”;
and they “have no other memories of this case.” The parties also
agreed to the admission of the entirety of Detective’s and
Officer’s police reports. After reading the stipulated facts, the
court provided each juror a copy of the stipulated facts and the
attached police reports. The court then took a recess to give the
jurors the opportunity to review the documents.
¶15 Officer’s police report stated that Victim said that “she
and the suspect are in a relationship where they are boyfriend
and girlfriend,” that they had “sexual relations on 8/8/07 in the
evening and again on 8/9/07,” and that she “believes she may be
pregnant.” Detective’s first police report explained, among other
things, that Victim told Detective that when she came out of the
20170390-CA 6 2019 UT App 135State v. Escobar-Florez
bathroom on the night in question, she “saw [Escobar-Florez]
sitting on a couch.” That report also stated Mother told Detective
that one night Victim “was gone until 9 a.m.” and that when
Mother “confronted” her, Victim “told her about what had
happened” with Escobar-Florez. Detective’s second report
stated, in relevant part,
On September 4, 2007 . . . [Escobar-Florez]
promised to come and see me . . . on the same day
at 1800 hours. [Escobar-Florez] failed to make an
appointment and at approx. 1840 hours [another
officer] called and talked to [Escobar-Florez] . . . .
[He] told [the officer] he would come and see me
on September 5, 2007 at 1500 hours. On September
5, 2007 at approx. 0900 hours I was at [Escobar-
Florez’s] place of employment . . . . I was informed
[Escobar-Florez] had quit his job citing problem[s]
with the police . . . . The people who worked with
[Escobar-Florez] told the management he was from
El Salvador.
The police reports also contained a copy of Escobar-Florez’s
“Permanent Resident Card,” which listed Mexico as his country
of birth.
¶16 Soon after the short recess, the State rested its
case-in-chief. Escobar-Florez did not testify, and the defense
called no witnesses.
¶17 In closing arguments, the prosecutor argued in part for
conviction by pointing to the fact that Escobar-Florez left the
house and quit his job. The prosecutor asserted, “[T]he thing
that’s important is when [Detective] . . . calls [Escobar-Florez]
and says, ‘I want to meet with you, come and talk with me.’ And
the next day [Detective] goes to [Escobar-Florez’s] work after he
didn’t show up to talk to [Detective] and [Escobar-Florez] had
20170390-CA 7 2019 UT App 135State v. Escobar-Florez
quit. And said, ‘I’m having problems with the police.’” The
prosecutor also directed the jurors to the police reports that
included Escobar-Florez’s permanent resident card and argued
that “this isn’t one of those instances where he’s here illegally
and he’s afraid of contact with police because he has a green
card” and “[h]e’s actually here legally, according to the
documentation.” The prosecutor continued, “So why else would
you suddenly quit your job? And leave and move out of your
residence? So nobody can find you. All of those things that
happened are consistent with [Victim’s] facts . . . .”
¶18 Trial counsel focused his closing argument on
highlighting inconsistencies in Victim’s testimony, including
inconsistencies found within the police reports. For example,
trial counsel pointed to Detective’s report about Mother
confronting Victim after being out all night and suggested that
Victim “got out of trouble” by making allegations against
Escobar-Florez. Trial counsel also referred to the information in
the police report about Detective going to Escobar-Florez’s
workplace, and trial counsel argued that no evidence suggested
that Detective went to Escobar-Florez’s last known address or
“did any additional follow-up.” Trial counsel also argued that
Escobar-Florez was from El Salvador, not Mexico, and so it was
possible he was “working with a counterfeit green card, [and]
that too would provide all kinds of justification for not wanting
to talk to the police.” Trial counsel further argued that the police
report showed that Escobar-Florez “hadn’t been [at work] for a
couple of weeks” before Detective went looking for him—and
“before [Victim] had even made a disclosure.” Trial counsel
continued, “So what is the problem with the police that
[Escobar-Florez] was having? Perhaps it’s completely unrelated
to any of this stuff, since no attempt was made to contact
[Escobar-Florez] until early September.”
¶19 Over trial counsel’s objection, the district court gave the
jury an instruction on flight. That instruction stated:
20170390-CA 8 2019 UT App 135State v. Escobar-Florez
Evidence was introduced at trial that the defendant
may have fled or attempted to flee from the crime
scene or after having been accused of the crime.
This evidence alone is not enough to establish
guilt. However, if you believe that evidence, you
may consider it along with the rest of the evidence
in reaching a verdict. It’s up to you to decide how
much weight to give that evidence.
Keep in mind that there may be reasons for flight
that could be fully consistent with innocence. Even
if you choose to infer from evidence that the
defendant had a “guilty conscience,” that does not
necessarily mean he is guilty of the crime charged.
¶20 Before the jury returned a verdict, Escobar-Florez moved
for a directed verdict, arguing that “there is insufficient evidence
that sexual intercourse actually occurred.” The court denied his
motion.
¶21 The jury convicted Escobar-Florez as charged. He appeals.
ISSUES AND STANDARDS OF REVIEW
¶22 Escobar-Florez contends that his trial counsel rendered
constitutionally ineffective assistance of counsel in a number of
ways. “When a claim of ineffective assistance of counsel is raised
for the first time on appeal, there is no lower court ruling to
review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of
law.” State v. Craft, 2017 UT App 87, ¶ 15, 397 P.3d 889 (cleaned
up).
¶23 In connection with some of his claims of ineffective
assistance of counsel, Escobar-Florez requests a remand for an
evidentiary hearing under rule 23B of the Utah Rules of
20170390-CA 9 2019 UT App 135State v. Escobar-Florez
Appellate Procedure. Rule 23B allows this court to remand a
criminal case “to the trial court for entry of findings of fact,
necessary for the appellate court’s determination of a claim of
ineffective assistance of counsel.” Utah R. App. P. 23B(a). This
court will grant a rule 23B motion to remand “only upon a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.” Id.¶24 Escobar-Florez next contends that the district court erred
in issuing a flight instruction to the jury. “We review the trial
court’s decision to give a flight instruction for correctness.” State
v. LoPrinzi, 2014 UT App 256, ¶ 10, 338 P.3d 253 (cleaned up).
¶25 He also contends that the district court erred in denying
his motion for a directed verdict, arguing that the evidence is
insufficient to sustain his conviction. We review district court
rulings on motions for directed verdict for correctness. State v.
Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d 1168.
ANALYSIS
I. Ineffective Assistance of Counsel Claims
¶26 Escobar-Florez contends that his trial counsel rendered
constitutionally deficient assistance in four ways: (A) he failed to
ask “any questions of the jury panel to weed out potential bias”
related to his immigration status, (B) he stipulated to the
admission of the police reports, (C) he failed to object to other
hearsay statements, and (D) he “was ineffective in representing
[Escobar-Florez] at trial because of a break-down in attorney–
client communication and because of [counsel’s] failure to
investigate the facts of the case.”
¶27 To carry the “heavy burden” of establishing that his trial
counsel provided constitutionally ineffective assistance of
20170390-CA 10 2019 UT App 135State v. Escobar-Florez
counsel, Escobar-Florez must establish two elements. See State v.
Nelson, 2015 UT 62, ¶¶ 10–11, 355 P.3d 1031 (cleaned up). He
“must first demonstrate that counsel’s performance was
deficient, in that it fell below an objective standard of reasonable
professional judgment.” See State v. Litherland, 2000 UT 76, ¶ 19,
12 P.3d 92 (citing Strickland v. Washington, 466 U.S. 668, 687–88
(1984)). “Judicial scrutiny of counsel’s performance is highly
deferential and includes a strong presumption that counsel
rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.” State v.
Reigelsperger, 2017 UT App 101, ¶ 92, 400 P.3d 1127 (cleaned up).
Indeed, Escobar-Florez “must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy.” See Strickland, 466 U.S. at 689(cleaned up). “Second, [he] must show that counsel’s deficient
performance was prejudicial—i.e., that it affected the outcome of
the case.” See Litherland, 2000 UT 76, ¶ 19 (citing Strickland, 466
U.S. at 687–88). “A failure to prove either element defeats the
claim.” State v. Johnson, 2015 UT App 312, ¶ 15, 365 P.3d 730(cleaned up).
A. Jury Selection
¶28 Escobar-Florez contends that his trial counsel “performed
deficiently by not conducting adequate voir dire before arguing
to the jury about [his] illegal immigration status.” He contends
that although trial counsel argued that Escobar-Florez “was an
undocumented immigrant” in opening and closing statements,
counsel did not ask any questions during voir dire “to determine
whether jurors had bias or prejudice against undocumented
immigrants” and thereby failed “to conduct adequate
examination into potential juror biases.” And he contends that
this prejudiced him “because there was no probing to determine
whether any of the jurors were biased against undocumented
immigrants.”
20170390-CA 11 2019 UT App 135State v. Escobar-Florez
¶29 The State counters that, under State v. King, 2008 UT 54,
190 P.3d 1283, Escobar-Florez must show prejudice stemming
from his counsel’s performance by proving “that because
counsel did not inquire into the prospective jurors’ attitudes
about immigration a biased juror sat.” (Citing id. ¶ 47.) The State
further asserts that Escobar-Florez “has not even attempted to
meet that burden.” We agree with the State.
¶30 As stated, to show ineffective assistance of counsel, the
defendant has the burden of showing that his counsel’s
“deficient performance affected the outcome of the case.” State v.
Arriaga, 2012 UT App 295, ¶ 13, 288 P.3d 588 (cleaned up). In this
context—an ineffective assistance of counsel claim arising from
counsel’s performance in the jury-selection process—the Utah
Supreme Court instructed in King that “errors of counsel that
allow the seating of potentially biased jurors” are not entitled to
a presumption of prejudice. 2008 UT 54, ¶¶ 38–39. Rather, “[t]o
prevail on [a] claim that [trial] counsel was deficient, [a
defendant] must demonstrate actual prejudice,” which is
“synonymous with actual juror bias.” Id. ¶ 39. Stated differently,
to prevail on an ineffective assistance of counsel claim in this
context, a defendant “must show that [trial] counsel’s actions
prejudiced him because those actions allowed the seating of an
actually biased juror.” Id. ¶ 47.
¶31 King is controlling. Thus, for Escobar-Florez to prevail on
his claim that his trial counsel should have asked questions
during voir dire “to determine whether jurors had bias or
prejudice against undocumented immigrants,” he is required to
show that his trial counsel’s actions “allowed the seating of an
actually biased juror.” See id. It is not enough for Escobar-Florez
to allege potential bias and to speculate that one or more jurors
may have harbored bias that may have led them to find his
version of events less credible or to convict based on his
immigration status. See id. ¶¶ 19, 47 (holding that “potential
bias” does not constitute prejudice).
20170390-CA 12 2019 UT App 135State v. Escobar-Florez
¶32 Escobar-Florez does not show actual bias but instead
attempts to distinguish King on its facts. For example, he asserts
that his case is different because unlike King, in which two jurors
responded that they had experiences related to the criminal
charge at issue, “no questioning of the venire . . . could even
raise the question of potential or actual bias” in his case. He
further asserts that his case differs from King because his
“counsel elected to make an issue of the very subject that would
have made juror questioning into potential bias relevant” and
because “the potential bias comes from evidence that [he] had
committed another highly politically charged crime—illegally
entering the United States.” He also suggests that “King simply
does not apply where there is a significant risk that the entire
jury was not impartial.” These alleged differences are
immaterial. We view King as clear direction that defendants
raising ineffective assistance claims related to counsel’s failure to
sufficiently probe prospective jurors for potential bias during the
jury-selection process must show that counsel’s performance led
to the seating of an actually biased juror. Id. ¶¶ 13, 38–39, 47.
¶33 Escobar-Florez has not made that showing. He therefore
has not established the prejudice prong of the test for ineffective
assistance of counsel. Accordingly, his ineffective assistance of
counsel claim related to the jury-selection process fails.
B. Stipulating to the Admission of the Police Reports
¶34 Escobar-Florez contends that he was deprived of his
constitutional right to the effective assistance of counsel when
his trial attorney stipulated to the admission of the police
reports. In particular, he argues that his trial counsel should
have sought to redact portions of the reports that (1) contained
“multiple unreliable hearsay statements,” including the portion
of Detective’s police report in which Detective explained that at
Escobar-Florez’s workplace he “was informed [Escobar-Florez]
had quit his job citing problem[s] with the police,” and
20170390-CA 13 2019 UT App 135State v. Escobar-Florez
(2) “improperly commented on [his] right against self-
incrimination,” including the part of Detective’s police report
that stated that Escobar-Florez “promised to come and see
[Detective]” and Escobar-Florez “failed to make an
appointment.” He also suggests that trial counsel’s stipulation
led to the violation of his right to confront the witnesses against
him.
¶35 To show deficient performance, Escobar-Florez must
“rebut the strong presumption that under the circumstances, the
challenged action might be considered sound trial strategy.”
State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (cleaned up). In
other words, he must persuade us that “there was no
conceivable tactical basis for counsel’s acts or omissions.” State v.
Nelson, 2015 UT 62, ¶ 10, 355 P.3d 1031 (cleaned up). Our
supreme court has instructed that “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.” Id. ¶ 14 (cleaned up).
¶36 On the facts of this case, we conclude that Escobar-Florez
has not rebutted the strong presumption that stipulating to the
admission of the police reports “might be considered sound trial
strategy.” See Litherland, 2000 UT 76, ¶ 19 (cleaned up). By
stipulating to the admission of the police reports, trial counsel
achieved reasonable strategic objectives. To begin with, he was
able to secure a faster trial for Escobar-Florez. As discussed at
the final pretrial conference, when trial counsel informed
Escobar-Florez that the police officers were out of state and
unavailable for trial, Escobar-Florez insisted that he still wanted
to go forward with trial, so trial counsel indicated that he would
“come to an agreement [with the prosecutor] on how to use
those police reports at trial.” The resulting stipulation thus
enabled trial counsel to avoid continuing the trial against
20170390-CA 14 2019 UT App 135State v. Escobar-Florez
Escobar-Florez’s wishes. And stipulating to the admission of the
police reports allowed trial counsel to secure the admission of
evidence helpful to Escobar-Florez’s defense and theory of the
case. Indeed, trial counsel informed the court that he “certainly
[was] going to be relying on” the police reports in his closing
argument. Trial counsel followed through on this, and his
decision to pursue this strategy was reasonable under the
circumstances.
¶37 Trial counsel’s primary strategy at trial was to undermine
Victim’s credibility by highlighting the inconsistencies in her
trial testimony and other statements, several of which were
included in the police reports. For example, the reports contain
Victim’s statements that she and Escobar-Florez were “boyfriend
and girlfriend”; that they had sex twice; and that Escobar-Florez
was initially “sitting on a couch,” rather than standing outside
the bathroom, on the night of the rape. And unlike Victim’s and
Mother’s trial testimonies that Escobar-Florez threatened to
harm Mother, the reports contain no such allegation. Trial
counsel advanced the narrative that there were “very significant
alterations in the story between then and between now,” and he
relied on this evidence to argue to the jury that “too much . . . is
inconsistent” and “doesn’t add up.” Trial counsel’s strategy to
stipulate to the admission of the police reports containing these
inconsistencies was reasonable.
¶38 The police reports also contained evidence that supported
the defense theory that Victim fabricated the allegations against
Escobar-Florez in order to get out of trouble with Mother. The
reports state that Mother told Detective that Victim left at night
and was “gone until 9 a.m.” and “[w]hen confronted by
[Mother,] [Victim] disclosed . . . the incident.” Trial counsel
relied on this evidence to argue in closing statements that when
Victim made the rape allegation “she got out of trouble” and
Escobar-Florez was “an easy target.” Trial counsel’s decision to
20170390-CA 15 2019 UT App 135State v. Escobar-Florez
stipulate to the admission of the police reports in support of this
theory likewise constitutes a reasonable trial strategy.
¶39 Trial counsel’s decision to stipulate to the police reports
also put before the jury helpful evidence that offered alternative
explanations for Escobar-Florez’s disappearance and his choice
not to talk to police. See Nelson, 2015 UT 62, ¶ 19 (“It was
reasonable that counsel would seek to provide the jury with a
satisfactory explanation for [the defendant’s] behavior following
the [crimes].”). The police reports contained a copy of Escobar-
Florez’s permanent resident card that listed Mexico as his
country of birth, and the reports also contained the statement
that the “people who worked with [Escobar-Florez] told . . .
management he was from El Salvador.” Trial counsel referenced
this evidence during closing statements to suggest that the
permanent resident card was counterfeit and to argue that “if, in
fact, he’s El Salvadoran and was working with a counterfeit
green card, that too would provide all kinds of justification for
not wanting to talk to the police.” Trial counsel further argued
that Escobar-Florez’s problem with the police was “completely
unrelated” to Victim’s allegations, explaining that the police
reports suggested that Escobar-Florez had left his employment
“before [Victim] had even made a disclosure.”
¶40 Given that the jury was likely to hear evidence at trial that
Escobar-Florez disappeared after the rape was reported, 2 trial
counsel reasonably stipulated to the police reports as evidence
that could support an alternative reason for Escobar-Florez’s
behavior. Instead of consciousness of guilt related to Victim’s
allegations, the police reports offered support for the defense
theory that Escobar-Florez’s immigration problems motivated
2. The rape was reported in 2007, but the case was not tried until
2017. And Victim, Mother, and Stepfather all testified that they
did not see Escobar-Florez again after Victim disclosed the rape.
20170390-CA 16 2019 UT App 135State v. Escobar-Florez
his decisions; he may have left and declined to meet simply to
avoid police scrutiny. And because Escobar-Florez did not
testify, stipulating to the police reports offered perhaps the only
way for trial counsel to present evidence of this defense theory.
See State v. Simpson, 2019 UT App 85, ¶ 23, 443 P.3d 789 (stating
that counsel’s decision to allow the jury to hear certain
interviews was a sound trial strategy given that because the
defendant did not testify, the “defense theory could be presented
to the jury only through the introduction of [the interviews]”).
¶41 Admittedly, the police reports contained evidence that
was both helpful and detrimental to the defense. But trial
counsel could have reasonably decided that the upside
outweighed the downside and that he could effectively explain
away the damaging evidence. And although Escobar-Florez
asserts that, at a minimum, trial counsel should have sought to
redact the portions of the police reports that were inadmissible
and damaging to his defense, trial counsel could have
reasonably decided that such a path would have “increased the
likelihood that the State would successfully object” to the
hearsay portions of the police reports that were important to the
defense strategy. See State v. Shepherd, 2015 UT App 208, ¶ 53,
357 P.3d 598; see also State v. Hulse, 2019 UT App 105, ¶ 36 n.9
(“We can readily conceive that a competent attorney . . . may
have deliberately chosen not to object to [a deputy’s] testimony
in order to set a testimonial baseline that would help overcome
potential objections to the [similar] content of [the defendant’s]
friend’s testimony—especially considering that the friend’s
testimony was crucial in establishing the defense’s alternate
theory [of the case].”), petition for cert. filed, July 15, 2019 (No.
20190585); State v. Roberts, 2019 UT App 9, ¶ 20, 438 P.3d 885(explaining that trial counsel may have reasonably decided “to
reserve for himself the right to argue inferences from the
evidence during his own closing argument without increasing
the likelihood of the State objecting in return”).
20170390-CA 17 2019 UT App 135State v. Escobar-Florez
¶42 Under all the circumstances, trial counsel was able to
advance reasonable strategic objectives by stipulating to the
admission of the police reports. We thus conclude that there
were reasonable tactical bases for stipulating to this evidence
and that trial counsel therefore did not render objectively
deficient performance. See Litherland, 2000 UT 76, ¶ 19.
Escobar-Florez’s ineffective assistance of counsel claim on this
ground accordingly fails.
C. Failing to Object to Other Hearsay
¶43 Escobar-Florez also raises an ineffective assistance of
counsel claim based on his trial counsel’s failure to object to
other unspecified hearsay statements in the testimony of the
pediatrician and the DCFS caseworker. In particular, he asserts
that his trial counsel should have objected to the pediatrician’s
testimony relaying what Victim said during her medical
examination and to the DCFS caseworker’s testimony about
what Mother told her.
¶44 As with his claim regarding his counsel’s failure to object
to the police reports, we conclude that Escobar-Florez has not
overcome the strong presumption that “the challenged action
might be considered sound trial strategy.” See Litherland, 2000
UT 76, ¶ 19 (cleaned up). “When viewing the variety of
circumstances faced by defense counsel, a conscious choice not
to object to arguably inadmissible testimony may, at times, fall
within the range of legitimate decisions regarding how best to
represent a criminal defendant.” State v. Gray, 2015 UT App 106,
¶ 44, 349 P.3d 806 (cleaned up).
¶45 Trial counsel’s decision not to object to the pediatrician’s
testimony about Victim’s statements during the medical
examination was reasonable because that evidence was
favorable to the defense. In addition to the examination being
inconclusive about whether Victim had had sex, Victim made an
20170390-CA 18 2019 UT App 135State v. Escobar-Florez
inconsistent statement during the medical examination that
Escobar-Florez had had both vaginal and anal sex with her—a
claim not made in the police reports or other testimony. And
both the pediatrician and the DCFS caseworker testified that,
contrary to Mother’s trial testimony, the family asked Escobar-
Florez to move out but that he refused. Trial counsel relied on
and stressed these inconsistencies during closing arguments, and
trial counsel could have reasonably decided to allow the rest of
the pediatrician’s and the DCFS caseworker’s testimonies
because they were, on the whole, helpful to the defense. Under
the circumstances, trial counsel’s choice not to object was a
reasonable tactical decision, and we therefore reject Escobar-
Florez’s ineffective assistance of counsel claim. 3 See id.D. Trial Counsel’s Communication and Investigation
¶46 Escobar-Florez contends that his trial counsel rendered
ineffective assistance in two additional ways. First, he alleges
that “attorney–client communications broke down at trial,”
which resulted in him being unable to make informed decisions
about his case, “including whether to move forward with trial
using police reports rather than sworn testimony of police
officers, understanding and making informed decisions about
the medical records or potential expert testimony, and whether
or not to testify in his own defense.” Second, he believes trial
counsel did not adequately investigate his case. In connection
with these two grounds for ineffective assistance, Escobar-Florez
3. Escobar-Florez also asserts that trial counsel was ineffective
for failing to object to Mother’s testimony regarding what Victim
told her about the rape—testimony that was mostly cumulative
of Victim’s trial testimony. Escobar-Florez has not explained
how this failure was objectively unreasonable. See State v. Nelson,
2015 UT 62, ¶ 10, 355 P.3d 1031. This claim is consequently
unavailing. See id.20170390-CA 19 2019 UT App 135State v. Escobar-Florez
has filed a rule 23B motion seeking remand to the district court
for additional factual findings to support these grounds.
¶47 A rule 23B motion “will be available only upon a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.” Utah R. App. P. 23B(a). This is a
“high bar.” State v. Griffin, 2015 UT 18, ¶ 17, 441 P.3d 1166. To
meet it, the party must support its contentions with “affidavits
that demonstrate both the deficient performance by counsel and
the resulting prejudice to the defendant.” Id.; see also Utah R.
App. P. 23B(b). “[I]f the defendant could not meet the test for
ineffective assistance of counsel, even if [the] new factual
allegations were true, there is no reason to remand the case, and
we should deny the motion.” Griffin, 2015 UT 18, ¶ 20.
¶48 The Utah Supreme Court has articulated four
requirements for rule 23B motions. “First, the motion must allege
facts that are not already in the record.” State v. Ring, 2018 UT 19,
¶ 49 n.50, 424 P.3d 845. “Second, the defendant must provide
allegations of fact that are not speculative.” Griffin, 2015 UT 18,
¶ 19. “[S]peculative allegations are those that have little basis in
articulable facts but instead rest on generalized assertions.” Id.Thus, “when a defendant alleges that counsel failed to
investigate or call a witness, the defendant must, at the very
least, identify the witness,” and the supporting affidavits “must
submit specific facts and details that relate to specific relevant
occurrences.” Id. Third, the nonspeculative factual allegations
“must show deficient performance” and therefore “must focus
on why counsel’s performance was deficient.” Ring, 2018 UT 19,
¶ 49 n.50 (cleaned up). Fourth, the factual allegations must show
prejudice by demonstrating “that the result would have been
different had counsel’s performance not been deficient.” Id.(cleaned up).
20170390-CA 20 2019 UT App 135State v. Escobar-Florez
¶49 Escobar-Florez’s rule 23B motion does not meet these
requirements. He presents only his own declarations in support
of his motion, and those declarations lack detail and are mostly
speculative and conclusory. With regard to his first complaint
about the adequacy of counsel’s communications with him,
Escobar-Florez avers, “I do not feel that my attorney adequately
communicated with me or kept me adequately informed about
my case. I don’t think that I had a full enough understanding to
be able to make informed decisions.” But we agree with the State
that Escobar-Florez “has not identified what additional
communication he needed to assist his attorney, shown what
additional assistance he could have then given his attorney,
shown what additional evidence the assistance would have
produced, or explained how the omitted evidence undermines
confidence in the outcome.”
¶50 For example, he has not shown that, had he decided to
proceed with trial with the sworn testimony of the police
officers, the officers would have provided evidence different
from that contained in the reports or that their live testimony
would have altered the outcome of trial in a way favorable to
him. He also has not identified any potential expert testimony,
and he has not shown how a different decision about the
medical records could have been more favorable to him, given
that the medical records at trial showed no evidence of sexual
activity or injury. And while he suggests that he might have
chosen to testify at trial had counsel advised him differently, he
does not proffer what his testimony would have been or show
how that testimony would have been reasonably likely to change
the result. Escobar-Florez’s motion and accompanying
declarations do not allege facts that support a determination that
counsel was constitutionally ineffective.
¶51 With regard to his second complaint about the adequacy
of counsel’s investigation, Escobar-Florez states generally that he
“believes that his counsel failed to adequately investigate.” But
20170390-CA 21 2019 UT App 135State v. Escobar-Florez
he does not identify any evidence that counsel failed to discover
or show how additional investigation might have affected the
outcome of his trial. As with his first complaint about attorney–
client communications, Escobar-Florez’s motion and
accompanying declarations about his counsel’s investigation also
omit facts that justify a rule 23B remand.
¶52 In short, Escobar-Florez has not supported his motion
with specific and nonspeculative allegations and has not shown
why any of his concerns affected his trial. We therefore deny
Escobar-Florez’s motion for a rule 23B remand. His related
ineffective assistance of counsel claims are unavailing “because
there is no indication on record that his trial counsel’s
performance was defective or that he was prejudiced.” See Ring,
2018 UT 19, ¶ 50.
II. Flight Instruction
¶53 Escobar-Florez next contends that “the trial court erred in
instructing the jurors on flight, where there was little or no
evidence to support that [he] fled.” 4 Citing the fact that the
police reports did not give a “time frame . . . for when [he] quit
his job,” he asserts that the evidence “did not provide any nexus
between the alleged flight and charged crime.” The State
responds that the “evidence supported a reasonable inference
that [Escobar-Florez] fled out of a consciousness of guilt” and
that the flight instruction was therefore proper. We agree with
the State.
¶54 “Flight” is “[t]he act or an instance of fleeing, esp[ecially]
to evade arrest or prosecution.” Flight, Black’s Law Dictionary
4. Escobar-Florez does not assert errors in the wording of the
instruction itself. See State v. LoPrinzi, 2014 UT App 256, ¶ 28 n.9,
338 P.3d 253.
20170390-CA 22 2019 UT App 135State v. Escobar-Florez
756 (10th ed. 2014). Utah appellate courts have recognized that
“[e]vidence of flight is probative because it can demonstrate
consciousness of guilt.” State v. LoPrinzi, 2014 UT App 256, ¶ 25,
338 P.3d 253 (citing State v. Franklin, 735 P.2d 34, 39 (Utah 1987)).
It is still probative “even if [the flight] does not occur
immediately after a criminal offense is committed or the police
begin an investigation.” Id. ¶ 27. And we believe “flight” is a
broad enough concept to include Escobar-Florez’s apparent
disappearance, whether he was lying low or fled the jurisdiction.
See State v. Madrid, 1999 UT App 294U, para. 4 (“[F]light does not
require the physical act of running, but only a purpose to avoid
being observed or arrested.”).
¶55 This court has directed that “flight instructions are proper
when supported by the evidence, meaning the instructions bear
a relationship to evidence reflected in the record.” LoPrinzi, 2014
UT App 256, ¶ 25 (cleaned up). The required relationship exists
“if the flight occurred after the commission of the crime
charged.” Id. (cleaned up). Indeed, “a flight instruction is
appropriate if the circumstances could support a reasonable
inference that the defendant is fleeing out of a consciousness of
guilt.” Id. ¶ 28. But when a jury is instructed on flight, “Utah law
requires juries to be advised of [the] possibility” that the
defendant’s “departure could have other innocent explanations.”
Id. ¶ 28 n.9.
¶56 We conclude that the district court correctly instructed the
jury on flight. Victim, Mother, and Stepfather all testified at trial
that Escobar-Florez moved out of the house and disappeared
after the rape. Additionally, the police reports indicated that
although Escobar-Florez promised to meet with Detective,
Escobar-Florez failed to show up and that when Detective
thereafter went to look for Escobar-Florez at his workplace, he
was told that Escobar-Florez “had quit his job citing problem[s]
with the police.” This evidence shows that Escobar-Florez’s
“flight” occurred after the charged crime, and the flight
20170390-CA 23 2019 UT App 135State v. Escobar-Florez
instruction thus bore the necessary “relationship to evidence
reflected in the record.” See id. ¶ 25 (cleaned up). We agree with
the district court that the record evidence “could support a
reasonable inference that [Escobar-Florez fled] out of a
consciousness of guilt.” See id. ¶ 28.
¶57 Escobar-Florez argues that his quitting his job “at some
point” and his decision not to talk to the police do “not mean
that he did so specifically to avoid capture for the charged
offense.” But this argument goes to the weight of the evidence
and fails to “establish that the evidence [was] incapable of
supporting a reasonable inference that [Escobar-Florez] fled . . .
out of a consciousness of guilt arising from commission of the
charged offenses.” See id. (rejecting a challenge to a flight
instruction because, although the defendant’s arguments
“against the instruction may have some basis in the facts, . . .
they go to the weight of the evidence and do not establish that
the evidence is incapable of supporting a reasonable inference
that [the defendant] fled the state out of a consciousness of guilt
arising from commission of the charged offenses”). 5
¶58 We also reject Escobar-Florez’s suggestion that the
evidence of flight is insufficient to support the flight instruction
because it does not give a “time frame” for when he quit his job.
This court has recognized that evidence of flight “may still be
probative even if [the flight] does not occur immediately after a
criminal offense is committed or the police begin an
investigation.” Id. ¶ 27. Thus, rather than requiring evidence of
an immediate flight, Utah law requires only that the flight occur
5. Consonant with Utah law, the flight instruction informed the
jury that “there may be reasons for flight that could be fully
consistent with innocence.” See id. In fact, trial counsel offered
alternative explanations for Escobar-Florez’s alleged flight,
including that he was “in this country illegally.”
20170390-CA 24 2019 UT App 135State v. Escobar-Florez
“after the commission of the crime charged.” Id. ¶ 25 (emphasis
added) (cleaned up). As discussed, three witnesses at trial and
the police reports show that Escobar-Florez disappeared after
the rape. See id. A jury could reasonably infer from this evidence
that Escobar-Florez fled “out of a consciousness of guilt,” see id.
¶ 28, and the flight instruction was therefore supported by the
evidence in this case.
III. Sufficiency of the Evidence
¶59 Finally, Escobar-Florez contends that the evidence is
insufficient to sustain his conviction for rape of a child and that
the district court therefore erred in denying his motion for a
directed verdict. “A person commits rape of a child when the
person has sexual intercourse with a child who is under the age
of 14,” Utah Code Ann. § 76-5-402.1 (LexisNexis 2017), 6 and does
so intentionally, knowingly, or recklessly, see id. § 76-2-102.
¶60 Evidence is sufficient when, viewed in the light most
favorable to the State, there exists “some evidence . . . from
which a reasonable jury could find that the elements of the crime
had been proven beyond a reasonable doubt.” See State v.
Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (cleaned up). Our “role is
to determine whether the state has produced believable evidence
on each element of the crime from which a jury, acting
reasonably, could convict the defendant.” Id. ¶ 32 (cleaned up).
In so doing, we do not “weigh the evidence” or judge credibility.
Id. (cleaned up).
¶61 In challenging the sufficiency of the evidence,
Escobar-Florez raises two distinct arguments. First, he asserts
6. Although the relevant statute has been amended since the
time of the offense, the amendments are not material to our
analysis. We therefore cite the current version of the Utah Code.
20170390-CA 25 2019 UT App 135State v. Escobar-Florez
that because Victim’s testimony was uncorroborated and
inconsistent, it was “inherently improbable” and there was
insufficient evidence to convict. Second, he asserts that “the State
failed to prove that [he] had sex with [Victim].”
¶62 Escobar-Florez’s first assertion that Victim’s testimony
was “inherently improbable” suggests that the district court
should have disregarded Victim’s testimony when determining
whether he was entitled to a directed verdict based on
insufficient evidence. Under the inherent improbability doctrine,
a court may disregard testimony that is “inherently improbable”
when evaluating the sufficiency of the evidence. State v. Robbins,
2009 UT 23, ¶ 13, 210 P.3d 288. This doctrine is limited and may
be invoked “only in those instances where (1) there are material
inconsistencies in the testimony and (2) there is no other
circumstantial [evidence] or direct evidence of the defendant’s
guilt.” Id. ¶ 19; see also State v. Prater, 2017 UT 13, ¶ 38, 392 P.3d
398 (explaining that the inherent improbability doctrine applied
in Robbins because of “inconsistencies in the [witness’s]
testimony plus the patently false statements the [witness] made
plus the lack of any corroboration”). We reject Escobar-Florez’s
inherent-improbability argument because it is unpreserved.
¶63 “As a general rule, claims not raised before the trial court
may not be raised on appeal.” State v. Gonzalez, 2015 UT 10, ¶ 24,
345 P.3d 1168 (cleaned up). And “generally, a defendant must
raise the sufficiency of the evidence by proper motion or
objection to preserve the issue for appeal.” State v. Holland, 2018
UT App 203, ¶ 8, 437 P.3d 501 (cleaned up). “Further, where a
motion for a directed verdict makes general assertions but fails
to assert the specific argument raised on appeal, the directed
verdict motion itself is insufficient to preserve the more specific
argument for appeal.” State v. Gallegos, 2018 UT App 112, ¶ 14,
427 P.3d 578 (cleaned up). As relevant here, an argument
asserting the inherent improbability of a witness’s testimony is
“distinct” from a broad argument about the sufficiency of the
20170390-CA 26 2019 UT App 135State v. Escobar-Florez
evidence. See State v. Doyle, 2018 UT App 239, ¶ 14, 437 P.3d
1266; see also id. ¶ 19 (stating that “not every insufficiency
challenge raises [an inherent-improbability] issue” under
Robbins).
¶64 At trial, Escobar-Florez moved for a directed verdict only
on the ground that “there is insufficient evidence that sexual
intercourse actually occurred.” But an objection to the
sufficiency of the evidence on one element (like this one) is not
specific enough to preserve the issue of whether a witness’s
testimony is so inherently improbable that it should be ignored
before the court reviews the sufficiency of the evidence. See id.
¶¶ 16–19. Here, Escobar-Florez did not alert the district court
that Victim’s testimony should be disregarded under the
inherent improbability doctrine. He did not raise this specific
argument in moving for a directed verdict or at any other time.
He therefore did not preserve the issue for appeal, see id., and he
has not argued for the application of an exception to the
preservation rule.
¶65 As for his preserved challenge to the evidentiary
sufficiency on one element of the crime, we conclude that,
viewing the evidence in the light most favorable to the State,
there was evidence from which the jury reasonably could find
beyond a reasonable doubt that Escobar-Florez had sex with
Victim. See Montoya, 2004 UT 5, ¶ 29. Indeed, Victim testified at
trial that Escobar-Florez had sex with her. The State also
presented circumstantial evidence that this happened, including
that, after the abuse, Victim’s behavior changed in ways that
were deemed significant by her parents. This evidence is
20170390-CA 27 2019 UT App 135State v. Escobar-Florez
sufficient to prove that Escobar-Florez had sexual intercourse
with Victim, and we therefore reject his sufficiency challenge. 7
CONCLUSION
¶66 Escobar-Florez has not established that his trial counsel
rendered constitutionally deficient performance. He has not
demonstrated that his trial counsel’s alleged failure to
sufficiently probe the potential jurors during voir dire resulted in
the seating of an actually biased juror. We also disagree with
Escobar-Florez that his trial counsel performed deficiently when
he stipulated to the admission of unredacted police reports. And
regarding his claims that counsel failed to adequately
communicate with him and failed to conduct sufficient
investigation, Escobar-Florez has not alleged facts that could
support a determination that counsel was constitutionally
ineffective, and we deny his accompanying motion for a rule 23B
remand.
¶67 In addition, Escobar-Florez did not show error in the
district court’s decisions to instruct the jury on flight and to deny
him a directed verdict. We therefore affirm.
7. “[I]n the event that any one error is insufficient for reversal,”
Escobar-Florez requests that this court reverse “based on the
cumulative effect of the errors.” “Under the doctrine of
cumulative error, we will reverse if the cumulative effect of the
several errors undermines our confidence that a fair trial was
had.” State v. Beverly, 2018 UT 60, ¶ 80, 435 P.3d 160 (cleaned up).
Because Escobar-Florez has not established multiple errors, we
have no errors to accumulate and the cumulative error doctrine
does not apply. See id.20170390-CA 28 2019 UT App 135