State v. Nunez

2021 UT App 86THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
OSCAR ALONSO NUNEZ,
Appellant.
Opinion
No. 20190317-CA
Filed August 12, 2021
Fourth District Court, Provo Department
The Honorable Thomas Low
No. 151403242
Ann M. Taliaferro, Attorney for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 After being convicted of various child sex abuse charges,
Oscar Alonso Nunez now portrays his trial as a series of errors.
His accuser, Kiara1, testified poorly at trial. To compensate, the
State offered her Children’s Justice Center interview to support
each element of the charges. In addition, the court replaced a
struggling juror during deliberations. Nunez claims the trial
court erred in its rulings on these events and, for these and other
reasons, seeks reversal. We affirm.
1. A pseudonym.
State v. Nunez
BACKGROUND
¶2 In late 2015, the State charged Nunez with two counts of
sodomy on a child, two counts of rape of a child, and one count
of attempted sodomy on a child against his fiancée’s eight-year-
old daughter, Kiara. At trial, the State called Kiara as its first
witness. But, instead of providing testimony establishing each
element of the charged conduct, Kiara testified only that, on
more than one occasion, Nunez pulled off her pants and
underclothes and touched her vagina with his fingers, and that
he forced her to touch his penis with her hands. Kiara could not
testify as to whether Nunez touched her vagina with anything
else besides his finger or whether he forced her to touch his
penis with anything else besides her hands.
¶3 Recognizing that this testimony alone would fail to
support the charges, the prosecutor acknowledged, “I don’t
think it’s any secret, but things didn’t quite go the way I had
planned,” and in light of this, the State sought to introduce a
video recording of Kiara’s interview at the Children’s Justice
Center (CJC interview), which did contain statements
supporting each element of the charges. The State moved to
introduce the CJC interview under Utah Rule of Evidence
801(d)(1)(A) as a non-hearsay prior inconsistent statement. In
opposition, defense counsel argued, among other things, that he
“didn’t think the scope of Rule 801(d)(1)(A), which is prior
inconsistent denied or forgotten statements[,] was meant to be so
broad as to allow the State to play the entire tape, but only to
play portions of the tape . . . inconsistent with the precise
accusations she made on the stand.” (Cleaned up.) After taking
into account Nunez’s objection, the trial court ruled that the State
could play only certain CJC interview segments that contained
statements inconsistent with Kiara’s trial testimony and that
could not otherwise be reasonably separated from the consistent
statements. The court also ruled that Kiara had to take the stand
20190317-CA 2 2021 UT App 86State v. Nunez
for an opportunity to explain or deny the CJC interview’s
contents.
¶4 To lay foundation for the CJC interview, the State called
the Children’s Justice Center interviewer (CJC interviewer) to
testify about the protocol followed while conducting an
interview. She stated, “[W]e always [elicit] them to promise to
tell the truth.” The State then played the CJC interview for the
jury, wherein Kiara described the occurrence of vaginal
intercourse (rape), oral sex (sodomy), and attempted oral sex
(attempted sodomy).
¶5 Afterward, the State asked Kiara about the statements she
made in the interview. Although she acknowledged that she
“didn’t remember a lot of things” she had said in the CJC
interview, she testified that she did “[n]ot really” “disagree”
with any of the statements she made in the CJC interview. To
further corroborate Kiara’s allegations, the State offered—and
the court received—evidence of Kiara’s relevant medical
examinations that showed her vaginal area to be “exquisitely
tender,” “swollen and puffy,” “irritat[ed],” and “inflamed and
red looking.” These “injuries were consistent with [Kiara’s]
reported abuse.”
¶6 To further support its case, the State called Nunez’s
daughter from a previous marriage (Witness), to testify about
her observations of interactions between Kiara and Nunez.
Because the parties had stipulated to omit certain accusations of
abuse against Kiara alleged to have occurred in Wyoming, the
parties hotly disputed whether Witness’s testimony referred to
the Wyoming accusations. In an apparent attempt to exclude the
testimony by establishing that Witness’s testimony would relate
to the Wyoming accusations, defense counsel placed Nunez on
the stand to clarify the “layout” of the homes in which Nunez
had lived. But after hearing the testimony, the trial court ruled
that the State had met its burden to show that Witness’s
20190317-CA 3 2021 UT App 86State v. Nunez
testimony related to the charges at issue in the case and allowed
the testimony to proceed. Among other things, Witness testified
that on one occasion, when Nunez had called Kiara into his
bedroom, she put her ear to the door and heard Kiara say, “Stop
it. I don’t want to do this anymore. I want to leave.” Witness
further testified that Kiara told her that Nunez was “touching
[Kiara’s] privates” but not to “tell anybody” because Nunez
“would hurt” Kiara, her mom, and Kiara’s little sister.
¶7 Outside the jury’s presence, defense counsel successfully
moved to strike Witness’s testimony that Kiara told her that
Nunez was “touching [Kiara’s] privates” and the testimony that
Kiara told Witness not to “tell anybody” because Nunez “would
hurt” Kiara, her mom, and Kiara’s little sister. However, before
the court instructed the jury to disregard the stricken testimony,
the parties stipulated to show the jury another portion of the CJC
interview. In that portion of the CJC interview, Kiara said, in
contradiction to Witness’s trial testimony, that Nunez had never
threatened her. Given that defense counsel had “addressed the
matter in a different fashion” by introducing the contradictory
statements, defense counsel withdrew the motion to strike. And
the trial court, recalling “the presentation of the evidence” and
how the defense had dealt with it, indicated that it recognized
the alternative trial strategy, stating, “Right. That’s what I could
tell.”
¶8 Defense counsel also sought to admit impeachment
evidence showing bias and suggesting that Witness had
motivation to misrepresent the facts because Nunez’s ex-wife—
Witness’s mother—was hostile toward Nunez and had
opportunity to coach Witness into lying on the stand. The trial
court rejected the evidence, stating,
This evidence is intended to indicate or to imply . .
. an adversarial situation of feelings between
[Nunez’s ex-wife], [Witness’s] mother, and
20190317-CA 4 2021 UT App 86State v. Nunez
[Nunez], [Witness’s] father. The evidence of those
adversarial feelings between [Witness’s] mother
and father is intended to imply a motive on
[Witness’s] mother’s part to lie if lying would hurt
[Nunez]. The inference of [Witness’s] mother’s
motive to lie is intended to imply a motive on
[Witness’s] mother’s part to encourage [Witness] to
lie too. . . . That inference is proposed to imply that
[Witness’s] mother did in fact encourage [Witness]
to lie. And that inference is proposed to imply that
[Witness] also did in fact lie. The [c]ourt concludes
that that proposed testimony is too far removed
from the facts that are relevant to this case.
The trial court made this ruling, in part, because defense counsel
had not offered “independent foundation . . . to show that any of
the alleged hostility between [Witness’s] mother and [Nunez]
was actually communicated to [Witness].” Further, it found that
“[a]ny feelings [Witness] may have had or motives she had to lie
were not explored and she was not impeached while she was on
the witness stand, so an attempt to impeach her now behind her
back and through [another witness] . . . [was] . . . unfairly
prejudicial.” The trial court also blocked defense counsel’s
attempts to offer similar evidence, stating that allowing such
evidence “could just completely hijack” the trial because the
allegedly impeaching evidence was not explored when Witness
testified and that “insufficient foundation [had been] laid to go
now one or two steps removed from her to try to now use that to
impeach her.”
¶9 During closing argument, the prosecutor argued that even
though Kiara had difficulty testifying on the stand, she had no
difficulty speaking several years earlier during her CJC
interview—which the prosecutor emphasized was “close in time
to when this sexual abuse happened.” He then stated that she
“was repeatedly abused” and “repeatedly raped,” and that
20190317-CA 5 2021 UT App 86State v. Nunez
“maybe [Kiara] had those many times confused.” The prosecutor
also noted that, when interviewing Kiara, the CJC interviewer
employed a protocol “intended to elicit accurate information”
and that the protocol is used “in an effort to get a good, reliable,
honest, detailed statement.” The prosecutor finally argued that
“[j]ust because [Kiara] elaborate[d] and provide[d] more detail”
in her CJC interview than she did on the stand “that’s not an
inconsistency. That’s consistency. But there’s nothing, at least,
inconsistent about it.” Defense counsel raised no objection to the
prosecutor’s argument.
¶10 Not long after the jury retired for deliberations, the trial
court started receiving questions from the jury. While
acknowledging they were not yet “hung,” the jurors asked, “If
the jury is hung, what is the next step?” The trial court declined
to answer the question. The next day, as deliberations continued,
the jury asked, “Are we able to have a verdict on some counts
and be hung on other counts?” The trial court responded in the
affirmative. Soon after, the jury asked, “Can we go to [an
extended] lunch and allow a juror to be alone to gather her
t[h]oughts? It’s hard to be in the room and not deliberate
without all being present.” Around that same time, one juror
(Juror 35) requested to speak privately with both counsel and the
court. The trial court sent the jurors to lunch but held back Juror
35. In a discussion in chambers, the trial court and both counsel
discussed how to speak with Juror 35 “without her discussing
things that cannot be discussed.” The court determined to
tell her at the outset you’ve asked to speak to us
and you’ve declined to go back into the jury room.
So apparently you’re insisting now on speaking to
us, but you cannot say a single thing about what is
being discussed in the jury room, what you’ve said
or what anybody else has said. We cannot hear a
single thing about any of that. Make sure she
20190317-CA 6 2021 UT App 86State v. Nunez
understands that and then see if she wants to talk
about her mental or emotional health.
The trial court then explained to both counsel that they were “in
a corner” because Juror 35 had “declined to go back into the jury
room until she talk[ed] to [them].” In response defense counsel
stated, “I think . . . we should make a record of what she says,
and we should hear from her. . . . If you admonish her sternly
that we don’t want to hear anything about what’s being
discussed in the jury room, just what her condition is.”
¶11 The court then invited Juror 35 into chambers and stated,
“[Y]ou cannot tell us anything about what’s going on in the jury
room as far as what’s being discussed, who said what, what
you’ve said, how you feel about the evidence or the verdict. That
is sacrosanct and we cannot hear a single word about that.” Juror
35 indicated understanding and then explained that she had “a
history of depression and anxiety” that she “didn’t think . . . was
going to be a problem.” She continued,
But as we are in the jury room, I’m experiencing
some anxiety that I, um, being in the situation that
I am in, I don’t know like how it will affect me
mental—it’s hard for me not to say like why—
....
—but I just am experiencing some anxiety because
of this situation that I feel like that I am in in the
jury room.
Juror 35 struggled to fully communicate her concerns without
being able to discuss the deliberations.
¶12 The trial court asked,
20190317-CA 7 2021 UT App 86State v. Nunez
[I]f you could look forward in time, do you believe
that you can participate a little further at least, and
that would not scar you emotionally for the rest of
your life, or are you afraid . . . that whatever you
do and however you vote, you are going to have
PTSD or something like that?
Juror 35 indicated she thought she would be all right long-term
but then disclosed that she would “have to submit some
questions about the law that” she needed “some clarification on”
and expressed concern about “reading [the answer] without . . .
asking . . . questions back” because often one answer raised
another question but the responses came too “slowly.” The trial
court assured her that it would quickly respond to any
appropriate legal questions presented from the jury room and
said it sounded like she just “needed a break.” The trial court
sent Juror 35 to lunch and suggested that she was “just
experiencing” the “terrible stress of a difficult decision.”
¶13 But after lunch, Juror 35 sent another question to the trial
court asking, “Can I be dismissed from this case? I believe this
will severely affect me in the future mentally.” The trial court
invited both counsel “to be heard as to whether or not we excuse
. . . Juror No. 35, and allow Juror No. 36 to take [her] place.” The
State opined that “if we don’t replace her, it’s going to be an
appealable issue.” The court agreed. After taking a moment to
discuss and consider the issue, defense counsel stated that “a
decision to allow her to remove herself . . . is probably the better
course.” The trial court expressed its “main concern” as
“whether or not she can continue deliberations without doing
violence to her own personal health, and also to [Nunez’s] rights
to a fair trial.” The State indicated willingness to speak with her
once more and defense counsel then said that “for purposes of
the record, it might be better to talk to her.” Ultimately, the trial
court and both counsel determined to speak once more with
Juror 35.
20190317-CA 8 2021 UT App 86State v. Nunez
¶14 At the outset of the second conversation, the trial court
reminded the juror, “You can’t talk about what’s going on in
there. Just about you.” The juror expressed, “I feel like how I feel
in there I can’t think clearly or like express my opinions openly.”
The trial court then invited both counsel to present questions to
the court that it could then present to Juror 35, and in so doing
emphasized, “Whether [continuing to deliberate] would affect
her in the long run is a very, very important issue. . . . [B]ut
[Nunez] and the State have the right to . . . a jury that will
deliberate and will participate in deliberations. If she will not or
cannot do that, that’s a Constitutional issue.” The court then
explained to Juror 35,
[M]aybe the most important issue . . . in the . . .
judicial system’s point of view is that we have
eight individuals in there, each one using their full
brain, their full willpower, their full articulation,
their full ability to express themselves. . . . [W]e
want people to work towards an agreement . . . if
they can without doing violence to their own
conscience. So understanding [that] . . . can you be
all in and 100 percent there, or are you
withdrawing or no longer participating in the
deliberations?
¶15 Juror 35 again struggled to fully express her concerns
without describing the deliberations. The court began to ask yes
or no questions:
Q: Do you feel like you can deliberate with the
other jurors and speak your mind?
A: Yes and no.
Q: Tell me why the no, again without divulging
any specific opinions.
20190317-CA 9 2021 UT App 86State v. Nunez
A: Okay, so I don’t think this would divulge any
opinions, but I feel like I’d be interrogated . . . as to
my opinion, and like a little bit—I feel a little bit
badgered in there. So like I don’t want to change an
opinion because of that, and I don’t know if I’m
required as a juror to like how much I have to
explain to the other jurors of why I stand where I
do, because I feel like I’ve done that, but [the
questioning has] just continued—
....
Q: Well, as it’s continued have you shut down to
the point that you’re no longer responding or
answering your fellow jurors and participating in
that discussion? Have you receded from it now?
A: I’m starting to shut down from before.
....
A: I don’t like want to leave, but I feel like if I stay,
the situation I don’t know—I’m sorry.
Q: Okay, then we can move onto the other
question, then. I can tell you’re in pain and
emotional, and I thank you.
....
Q: Do you currently have any sort of struggle
suffering from incidents that occurred previously?
Are you—is one of your issues where you’ll
continue to dwell on or suffer from events that
happened in the past?
A: Yes.
20190317-CA 10 2021 UT App 86State v. Nunez
Q: Is that part of what you’re being [medically]
treated for now?
A: Yes.
....
Q: But nevertheless, that is one of the issues you
struggle with, is suffering from events that have
happened in the past. Are you concerned that this
may be one of those events that will cause you to
suffer in the future?
Juror 35 said she believed this event would cause her to suffer in
the future if she “ha[d] to go back in there and keep having
questions like that asked of [her].” Shortly thereafter, the trial
court excused Juror 35 so it could confer with both counsel about
the situation.
¶16 Defense counsel summarized how he saw the situation,
stating,
She seems to be doing what we want a juror to do,
and that is to maintain her own opinion to the
point that she feels intimidated by I don’t know
how many, but at least some. As a human being, it
seems hard to send her back in there, frankly. As
an attorney, I think I have to take the position that
she’s doing what she’s supposed to do.
¶17 The State made similar observations, stating, “I don’t
want her to change her opinion just because she’s being
badgered. But being badgered and feeling uncomfortable is not
necessarily grounds to dismiss her as a juror.” The court and
both counsel then discussed providing the jury a potential Allen
20190317-CA 11 2021 UT App 86State v. Nunez
charge or an alternative-opinion respect admonishment.2 The
court then summarized its own view:
I don’t know what’s going on. There’s a chance
she’s a hold-out for conviction. There’s a chance
she’s [a] hold-out for acquittal. There’s a chance of
anything. But if, whatever we do, if we keep her on
that jury, and in 15 minutes they come back with a
conviction, I don’t want—you’re going to think
there’s an appealable issue there because we left
her on too long.
....
And yet, if we take her off the jury, and [Juror No.
36] comes in, and in 15 minutes there’s a
conviction, then there’s another appealable issue.
So I just want . . . to think it through clearly. I want
the least appealable issue. . . . We’ve had at least a
few questions about being hung. We’ve had her
ask to be excused twice. . . . She’s doing her job. My
problem is if she stops doing her job. And she stops
doing it because she’s fatigued, and she’s tired, and
she’s emotionally unfit. I don’t want that creating
an appealable issue . . . .
(Emphasis added.) Defense counsel requested five minutes to
discuss and consider the matter with Nunez, and the court
recessed for that purpose.
2. An Allen charge consists of “supplemental jury instructions to
help a deadlocked jury reach a unanimous verdict.” State v. Cruz,
2016 UT App 234, ¶ 10, 387 P.3d 618 (cleaned up); see also State v.
Ginter, 2013 UT App 92, ¶ 4 n.2, 300 P.3d 1278; Allen v. United
States, 164 U.S. 492, 501–02 (1896).
20190317-CA 12 2021 UT App 86State v. Nunez
¶18 After the recess, the court noted that the alternate juror
had arrived and that Juror 35 was “not going back [into the jury
room] without some sort of arm-twisting.” At that point, the
State took the position “that we allow her to be dismissed and
we go with the alternate juror.” Defense counsel, after having
used the recess to consider the issue and discuss it with Nunez,
took a similar position, stating, “I believe that Mr. Nunez, and
his father, and both counsel agree that under the circumstances
expressed, that she be released.” The court then discharged Juror
35. The court proceeded in asking the alternate juror if he had
“complied with the admonition . . . to not discuss the facts of this
case with anybody until the Bailiff informed [him] that the
resolution or a verdict [could] be reached?” The alternate juror
responded “Yes. I will comply,” and the court invited him to join
the other jurors.3
3. We note that the alternate juror had been retained but
temporarily excused, and had been instructed, until otherwise
notified, to continue to comply with the admonition not to
discuss the case with anybody. We also note that requesting an
alternate juror to return after being excused constitutes an
unusual circumstance. But here, both counsel affirmatively
represented their consent to replace Juror 35 with the alternate
and Nunez has not made this aspect of the handling of the jury a
point of contention in his brief; thus, we need not comment on
this issue. See Utah R. Crim P. 18(f) (providing that “[t]he court
may retain alternate jurors after the jury retires to deliberate,”
that “[t]he court must ensure that a retained alternate does not
discuss the case with anyone until that alternate replaces a juror
or is discharged,” and that “[i]f an alternate replaces a juror after
deliberations have begun, the court must instruct the jury to
begin its deliberations anew”); cf. State v. Gollaher, 2020 UT App
131, ¶ 24 n.4, 474 P.3d 1018 (noting that jurors may be replaced
“after deliberations have begun” but that nothing expressly
(continued…)
20190317-CA 13 2021 UT App 86State v. Nunez
¶19 To that point, not to mention breaks and times when the
jurors could not deliberate because Juror 35 was unable, the
deliberations had lasted around ten hours. Following the
alternate juror’s appointment, the jury deliberated for about two
and a half more hours before reaching a unanimous verdict
convicting Nunez on all counts.
¶20 Nunez appeals the convictions.
ISSUES AND STANDARDS OF REVIEW
¶21 Nunez raises numerous arguments for our review. First,
Nunez contends that the trial court erred in admitting, over
objection, Kiara’s CJC interview. Nunez also contends that,
although he failed to preserve the issue, the court plainly erred
in admitting Kiara’s CJC interview without applying Utah Rule
of Criminal Procedure 15.5’s procedural rigors and,
alternatively, that defense counsel provided ineffective
assistance in failing to request that the court formally follow rule
15.5’s procedure before admitting Kiara’s CJC interview. Nunez
further contends that defense counsel provided ineffective
assistance in failing to object to the CJC interviewer’s testimony
about the interview protocol.
¶22 Second, Nunez contends that the court erred in admitting
Witness’s testimony. Nunez also contends that the court erred in
excluding Nunez’s proffered impeachment evidence against
Witness.
¶23 Third, Nunez contends that defense counsel provided
ineffective assistance in inviting Nunez to testify as to the
(…continued)
permits “courts to reseat alternates after they have been
discharged”).
20190317-CA 14 2021 UT App 86State v. Nunez
foundation for Witness’s testimony and in withdrawing the
motion to strike portions of that testimony.
¶24 Fourth, Nunez contends that the court plainly erred in
failing to sua sponte enter a directed verdict of acquittal based
on the insufficiency of the evidence. Alternatively, Nunez
contends that defense counsel provided ineffective assistance in
failing to move for a directed verdict on the same basis.
¶25 Fifth, Nunez contends that the court plainly erred in
failing to sua sponte remedy alleged prosecutorial misconduct
during closing argument. Alternatively, Nunez contends that
defense counsel provided ineffective assistance in failing to
object to that alleged prosecutorial misconduct.
¶26 Sixth, Nunez contends that the court plainly erred in
failing to adequately discuss Juror 35’s concerns and in
dismissing Juror 35. Alternatively, Nunez contends that defense
counsel provided ineffective assistance in failing to request more
in-depth discussions with Juror 35 and in agreeing to Juror 35’s
dismissal instead of objecting or seeking a mistrial.4
¶27 As to this catalogue of claimed error, we apply these
standards of review. We review the trial “court’s decision to
admit or exclude evidence” for abuse of discretion. Northgate
Village Dev., LC v. City of Orem, 2019 UT 59, ¶ 14, 450 P.3d 1117(cleaned up). To show plain error, Nunez “‘must establish that
(i) an error exists; (ii) the error should have been obvious to the
trial court; and (iii) the error is harmful.’” State v. Popp, 2019 UT
App 173, ¶ 35, 453 P.3d 657 (quoting State v. Johnson, 2017 UT 76,
4. Nunez also contends that the cumulative effect of numerous
errors undermines confidence in the fairness of his trial.
However, because we identify no error throughout our analysis,
we do not reach this argument. See State v. Darnstaedt, 2021 UT
App 19, ¶ 19 n.4, 483 P.3d 71.
20190317-CA 15 2021 UT App 86State v. Nunez
¶ 20, 416 P.3d 443). And to succeed on an ineffective assistance
claim, Nunez “must show that counsel’s representation fell
below an objective standard of reasonableness,” Strickland v.
Washington, 466 U.S. 668, 688 (1984), and that he “was prejudiced
thereby,” State v. Kennedy, 2015 UT App 152, ¶ 23, 354 P.3d 775(cleaned up).
ANALYSIS
¶28 Although Nunez argues that the trial court erred in
admitting certain evidence and that the court plainly erred or
defense counsel provided ineffective assistance in relation to
Kiara’s testimony and Witness’s testimony, among other
evidentiary issues, when we review the record, we see a trial
court rendering well-reasoned decisions and committing no
obvious error and defense counsel pursuing a number of
reasonable strategies indicative of effective assistance. With this
in mind, we discuss each claim of error in turn.
I. Kiara’s Testimony
¶29 Nunez contends that the court plainly erred, and that
defense counsel provided ineffective assistance, by failing to
ensure that, before admission, the CJC interview met the
requirements of Utah Rule of Criminal Procedure 15.5, which
governs out of court statements of child victims of sexual abuse.
However, contrary to Nunez’s assertions, if a statement made by
a child witness in an out-of-court interview is independently
admissible under some other rule of evidence or procedure,
litigants need not satisfy rule 15.5 to have that statement
admitted. See State v. Hoyt, 806 P.2d 204, 209 (Utah Ct. App.
1991). This is because “[t]he rule is permissive, not exclusive,” see
id., and some evidence that falls under the purview of rule 15.5
may nevertheless appropriately be admitted pursuant to other
rules of evidence and procedure, State v. Burke, 2011 UT App
168, ¶ 52 n.13, 256 P.3d 1102 (reading Hoyt, 806 P.2d at 209, as
20190317-CA 16 2021 UT App 86State v. Nunez
standing for the proposition “that rule 15.5 is not the exclusive
method through which a child’s testimony may be admitted”).
Because the statements at issue here were admissible pursuant to
Utah Rule of Evidence 801(d)(1)(A), the State did not need to
satisfy rule 15.5 to have the statements admitted. Accordingly,
we conclude that the court did not plainly err, nor did defense
counsel render ineffective assistance in connection with the
admission of Kiara’s testimony. 5
A. Plain Error
¶30 To prevail on a plain error argument, Nunez must first
show that “an error exists.” State v. Popp, 2019 UT App 173, ¶ 35,
453 P.3d 657 (quoting State v. Johnson, 2017 UT 76, ¶ 20, 416 P.3d
5. Nunez also contends that the court erred in admitting any part
of Kiara’s CJC interview. But we agree with the State that any
error was actually invited. “[A] party who, without having
objected to a proposed course of action, affirmatively represents
that they have no objection to it, invites any resulting error”—
and this is the case here. See Cruz, 2016 UT App 234, ¶ 20.
Defense counsel objected to the CJC interview generally under
Utah Rule of Evidence 403 (which allows the exclusion of
relevant evidence for various reasons). Nunez’s brief notes this
point in passing but does not develop a discussion of this point
and the record shows that the court bypassed a discussion of the
CJC interview’s admissibility under rule 403 in favor of
discussing its admissibility under Utah Rules of Evidence 613
and 801(d)(1)(A). And regarding the CJC interview’s admission
on these grounds, defense counsel raised no objection and
instead assisted the court in working out the logistics of ensuring
that the State excise appropriate parts of the video, see Utah R.
Evid. 801(d)(1)(A), and ensuring Kiara had the opportunity to
explain or deny the CJC interview’s contents, see Utah R. Evid.
613; see also supra ¶ 31. In this regard, any error was invited.
20190317-CA 17 2021 UT App 86State v. Nunez
443). As stated, rule 15.5 is permissive, meaning that an out-of-
court child-witness statement can potentially be admitted into
evidence through that rule but that the rule by no means
constitutes the only mechanism by which such testimony may be
admitted. See Hoyt, 806 P.2d at 209. When an appellant’s
argument relies on the trial court’s failure to comply with a rule
that we have deemed permissive, that appellant faces an uphill
battle to show plain error. Other than arguing that rule 15.5 was
not applied, and by implication maintaining that application of
rule 15.5 is mandatory, Nunez does not explain how the trial
court’s failure to engage with rule 15.5 constituted an obvious
error. And our precedent’s holding that rule 15.5 is permissive,
coupled with Nunez’s failure to point to any Utah precedent
holding application of rule 15.5 mandatory, undermines a
conclusion that obvious error occurred.
¶31 Nunez also asserts that the prosecutor could not properly
seek admission of the entire CJC interview under Utah Rule of
Evidence 801(d)(1)(A), which allows, as non-hearsay, admission
of a declarant’s out-of-court inconsistent or forgotten statements.
However, in this assertion Nunez neglects to acknowledge that
the trial court, in response to defense counsel’s objections, did
actually limit what parts of the CJC interview the State could
show to the jury, requiring it to break the interview into four
parts to prevent, to the extent possible, prior consistent
statements from also coming in. Thus, Nunez does not show that
the court erred by admitting the CJC interview through rule
801(d)(1)(A) rather than rule 15.5.6
6. Nunez also contends that the State inappropriately used Utah
Rule of Evidence 613, which governs extrinsic evidence of
witnesses’ prior inconsistent statements, to further justify the
CJC interview’s admission. However, far from justifying
admission with rule 613, the court actually ruled that admission
(continued…)
20190317-CA 18 2021 UT App 86State v. Nunez
B. Ineffective Assistance of Counsel
¶32 To prevail on an ineffective assistance of counsel claim,
Nunez must first show that defense counsel provided deficient
representation that “fell below an objective standard of
reasonableness.” State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350(cleaned up). In making this determination, we “consider[] all
the circumstances” to determine whether the representation was
“objectively unreasonable.” Id. ¶ 36. While doing so, we
“indulge in a strong presumption that counsel’s [approach] fell
within the wide range of reasonable professional assistance, and
that under the circumstances, the challenged action might be
considered sound trial strategy.” State v. J.A.L., 2011 UT 27, ¶ 25,
262 P.3d 1 (cleaned up).
¶33 Nunez does not meet this threshold requirement. First,
because rule 15.5 is permissive, defense counsel’s failure to
require the court to conduct a rule 15.5 analysis is not dispositive
in showing ineffective assistance; as discussed above, supra
¶¶ 29–31, rule 801(d)(1)(A) allowed the court to admit the
portions of the CJC interview played for the jury, and therefore
defense counsel could reasonably have concluded that raising a
rule 15.5 challenge would have been futile, see State v. Makaya,
2020 UT App 152, ¶ 9, 476 P.3d 1025 (“A futile motion
necessarily fails both the deficiency and prejudice prongs of the
Strickland analysis . . . .”). Moreover, a consideration of all the
circumstances suggests that defense counsel’s choice to avoid
rule 15.5 constituted a sound trial strategy. Here, defense counsel
(…continued)
would be contingent on complying with rule 613 by requiring
Kiara to be on the stand to be given a chance to explain or deny
the CJC interview’s contents. In short, we see no abuse of
discretion in the court’s application of rule 613 as concerns the
CJC interview.
20190317-CA 19 2021 UT App 86State v. Nunez
knew the trial court had reviewed the interview’s contents at the
preliminary hearing when it bound the case over for trial. At that
hearing, the parties extensively argued whether the CJC
interview justified the bindover, and ultimately, the court
determined that it did. Considering this history, defense counsel
could have reasonably believed that even if the court had
adhered to rule 15.5’s procedural requirements, it would have
admitted the interview video into evidence. Had the interview
survived the rule 15.5 process—and based on the courts
preliminary hearing ruling that was likely—the entire interview
(rather than just portions of it) would have been entered into
evidence and seen by the jury. See Utah R. Crim. P. 15.5(a). This
situation presented defense counsel with two alternatives:
attempt to press for compliance with the permissive rule 15.5
and risk the likely outcome of having the entire interview shown
to the jury, or allow only the inconsistent interview sections to
come in as the court had ordered. Presented with these
alternatives, defense counsel could reasonably have decided to
allow portions of the interview to prevent it from coming into
evidence in its entirety.7
7. Nunez also contends that the CJC interviewer inappropriately
bolstered Kiara’s credibility by testifying that the interview
protocol requires interviewers to get the child “to promise to tell
the truth.” Nunez argues that counsel rendered ineffective
assistance by failing to object. But counsel does not render
ineffective assistance by withholding a futile objection. State v.
Makaya, 2020 UT App 152, ¶ 9, 476 P.3d 1025; State v. Burdick,
2014 UT App 34, ¶ 34, 320 P.3d 55. And here, we determine that
any objection on this basis would have been futile. True,
“admission of testimony that bolsters the credibility of another
witness’s testimony on a particular occasion is improper.” State
v. Lewis, 2020 UT App 132, ¶ 21, 475 P.3d 956. But the record
does not support the proposition that the CJC interviewer
(continued…)
20190317-CA 20 2021 UT App 86State v. Nunez
II. Witness’s Testimony
A. Trial Court Treatment
¶34 Nunez contends that Witness offered “incompetent”
testimony that should have been excluded under Utah Rules of
Evidence 403 and 602. Nunez also argues that the court abused
its discretion in excluding his proposed impeachment testimony.
We disagree.
1. Admission of Witness’s Testimony
¶35 Referencing Utah Rules of Evidence 403 and 602, which
govern, respectively, exclusion of irrelevant evidence and the
need for a witness’s personal knowledge, Nunez contends that
Witness’s testimony failed to reach minimum thresholds of
knowledge, relevancy, competence, clarity, and concision. But
the record does not bear this out. In describing what she
remembered about her time in the home together with Nunez
and Kiara, Witness testified of her experiences as a percipient
witness, which by its nature requires personal knowledge.
Further, by digging into the issue about whether Witness would
testify about events that took place in Utah, the trial court
expended significant effort to ensure that Witness’s testimony
focused only on the relevant charges and would therefore have
probative value. While Witness’s testimony may not have been
(…continued)
improperly bolstered Kiara’s credibility. The CJC interviewer
did nothing more than testify as to the interview protocol; a
protocol that required her to obtain a promise from the child that
the child would tell the truth. The fact that the protocol
contained such a requirement, and that the witness testified
about it, in no way means that the CJC interviewer testified
about whether Kiara testified honestly or credibly on that
particular occasion.
20190317-CA 21 2021 UT App 86State v. Nunez
as precise, direct, clear, or pointed as would have most benefited
the State, these shortcomings go to the testimony’s weight, not
its admissibility and, indeed, may have given defense counsel
ammunition with which to combat the State’s evidence.8 We
conclude the court did not exceed its discretion when it allowed
Witness to testify.
2. Excluding Impeachment Evidence
¶36 Nunez also takes issue with the trial court excluding
certain evidence he would have used to allegedly impeach
Witness. However, we conclude that the court did not exceed its
discretion in excluding the evidence pursuant to Utah Rule of
Evidence 403.
¶37 Nunez sought to offer evidence of hostility between
Nunez and his ex-wife, Witness’s mother, but did not address
this evidence with Witness or her mother when they were on the
stand. The trial court researched the issue independently and, in
excluding the evidence, relied on State v. Cox, 826 P.2d 656 (Utah
Ct. App. 1992), and Utah Rule of Evidence 403.
¶38 In Cox, the defendant cross-examined a witness and only
later sought to challenge that witness’s credibility by offering
evidence of bias showing that the witness testified against the
defendant to receive prosecutorial leniency. Id. at 661. When the
trial court excluded that evidence and the defendant appealed,
we clarified that although a defendant can impeach a witness for
bias, “the right of cross-examination is limited by Utah Rule of
Evidence 403.” Id. We then recited rule 403, explained that “[t]he
proponent of evidence offered to show bias must lay a
foundation for the evidence,” and held that because no
independent foundation had been laid, the proffered evidence
8. As noted below, infra ¶ 43, counsel used this testimony for
that very purpose—to impeach Kiara.
20190317-CA 22 2021 UT App 86State v. Nunez
was too speculative for its proposed purpose and because the
subject was not approached when the witness was on the stand,
it was also “potentially unfairly prejudicial,”—thus, exclusion
was within the trial judge’s discretion. Id. at 661–62.
¶39 Here, the trial court noted that after Witness had left the
stand, Nunez, like the defendant in Cox, tried to offer evidence
under Utah Rule of Evidence 608(c) to show bias on Witness’s
part. The trial court articulated its view that Nunez desired to
offer the testimony to suggest that animosity between Nunez
and his ex-wife (Witness’s mother) implied that Nunez’s ex-wife
would lie if lying would hurt Nunez, that this implication, in
turn, would further imply that Nunez’s ex-wife would then
encourage Witness to lie, and that all these inferences would
then imply that Witness did actually lie on the stand. See supra
¶ 8. Relying on Utah Rule of Evidence 403, which allows a court
to “exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence,” the court
excluded the evidence, declaring that it was “too far removed
from the facts that [were] relevant to this case.” The trial court
indicated that Nunez had offered no independent foundation “to
show that any of the alleged hostility between [the ex-wife and
Nunez] was actually communicated to [Witness]” and that, to
the contrary, Witness had testified that “she had some fond
feelings for [Nunez].” Thus, because “[a]ny feelings she may
have had or motives she had to lie were not explored and she
was not impeached while she was on the witness stand, . . . an
attempt to impeach her [after the fact] behind her back and
through” another witness was “perhaps even more unfairly
prejudicial” than the situation in Cox. The court further stated
that “[i]f this evidence were admitted, this trial over [Kiara’s]
alleged abuse would become about [Witness’s parents’] divorce
litigation, and that would be an inappropriate hijacking of this
trial. It would confuse the issues. It would mislead the jury and
20190317-CA 23 2021 UT App 86State v. Nunez
it would waste their time.” Ultimately, the court declared that
“insufficient foundation [had been] laid to go now one or two
steps removed from [Witness] to try to now use that [evidence]
to impeach her” and that the “evidence [was] both inadmissible
under 403 and 608.”
¶40 The court’s reasoning shows that, in context, the proposed
evidence’s speculative nature rendered its probative value low
in comparison to its substantial potential for unfair prejudice,
confusing the issues, misleading the jury, and wasting the jury’s
time. Thus, the trial court did not exceed its discretion in
excluding this proposed impeachment evidence.
B. Defense Counsel’s Decisions
¶41 Relatedly, Nunez contends that defense counsel provided
ineffective assistance by putting Nunez on the stand to discuss
foundation for Witness’s testimony, including the layout of the
home in Utah versus a different residence in Wyoming (which
resulted in the court’s finding that Witness’s testimony had
sufficient foundation) and by choosing to withdraw his motion
to strike portions of Witness’s testimony to pursue an alternative
strategy. Again, Nunez’s arguments do not show that defense
counsel performed deficiently.
¶42 Nunez takes issue with defense counsel’s decision to put
Nunez on the stand when discussing the layout of the home
Witness referred to in her testimony. Nunez characterizes this as
“the defense laying the foundation where the State was unable.”
But “[i]f it appears counsel’s actions could have been intended to
further a reasonable strategy, a defendant has necessarily failed
to show unreasonable performance.” State v. Ray, 2020 UT 12,
¶ 34, 469 P.3d 871. Here, it appears that defense counsel put
Nunez on the stand, not to lay foundation on the State’s behalf,
but in an attempt to thwart that foundation through testimony
from Nunez that could clarify that Witness was not, in fact,
testifying about the home in Utah, but the home in Wyoming.
20190317-CA 24 2021 UT App 86State v. Nunez
That defense counsel’s strategy backfired and resulted in the
trial court declaring that foundation had been laid is not
dispositive of deficient performance. “The question of deficient
performance is not whether some strategy other than the one
that counsel employed looks superior given the actual results of
trial. It is whether a reasonable, competent lawyer could have
chosen the strategy that was employed in the real-time context of
trial.” State v. Gallegos, 2020 UT 19, ¶ 36, 463 P.3d 641 (cleaned
up). “[E]ven where a court cannot conceive of a sound strategic
reason for counsel’s challenged [approach], it does not
automatically follow that counsel was deficient.” State v. Scott,
2020 UT 13, ¶ 36, 462 P.3d 350. But here, viewed “in the real-time
context of trial,” see Gallegos, 2020 UT 19, ¶ 36 (cleaned up), we
can conceive a sound strategic reason for defense counsel’s
approach—attempting to thwart the foundation for Witness’s
testimony—and we conclude that the strategy was objectively
reasonable even though the outcome differed from defense
counsel’s desires.
¶43 Defense counsel’s decision to withdraw the motion to
strike Witness’s hearsay statements is also objectively reasonable
under a similar analysis. While Nunez argues that this decision
was “inexplicabl[e],” we view the approach as unremarkable.
Witness’s testimony regarding Kiara’s statements directly
contradicted Kiara’s own account. Without Witness’s testimony
that Kiara reported that Nunez had threatened to hurt her and
others if she told anyone about the abuse, defense counsel would
have been unable to point out the inconsistency found in the CJC
interview, in which Kiara indicated Nunez had never made such
threats. See supra ¶ 7. Defense counsel told the court
unequivocally that this was part of a specific strategy when he
said, “we compromised some issues and addressed the matter in
a different fashion.” Indeed, defense counsel’s strategy was so
obvious that the trial court responded, “Right. That’s what I
could tell.” Having identified a “reasonable strategy” behind
defense counsel’s actions, we conclude that Nunez “has
20190317-CA 25 2021 UT App 86State v. Nunez
necessarily failed to show unreasonable performance.” See Ray,
2020 UT 12, ¶ 34.
III. Sufficiency of the Evidence
¶44 Nunez contends that the State failed to present
“substantial reliable evidence,” (cleaned up), sufficient to
support the convictions. Nunez concedes he has not preserved
this contention and argues that the court plainly erred by failing
to grant a directed verdict sua sponte. Alternatively, Nunez
argues that defense counsel rendered ineffective assistance by
failing to seek a directed verdict on these same grounds.
A. Plain Error
¶45 To support his plain error argument, Nunez argues that
Kiara “gave no direct testimony recounting the elements of the
five charged offenses” and that the State could not rely on the
CJC interview to establish the missing elements because the
evidence is “of a substantially lesser quality” under State v.
Ramsey, 782 P.2d 480 (Utah 1989). Nunez asserts that under these
evidentiary circumstances, the court erred in submitting the case
to the jury. But after a closer examination of the applicable
caselaw, we conclude that Nunez has not established that an
error occurred.
¶46 In Ramsey, the defendant allegedly forced his son to
simulate intercourse with his daughter. 782 P.2d at 482–83.
However, “an out-of-court hearsay statement,” later denied on
the stand by the alleged declarant, provided the allegation’s
“only probative evidence.” Id. Thus, the Ramsey court had to
determine if the charge could “be supported solely by the . . .
unsworn out-of-court statement.” Id. at 483. Ultimately, that
court held that “a conviction that is based entirely on a single,
uncorroborated hearsay out-of-court statement that is denied by
the declarant in court under oath cannot stand.” Id. at 484.
20190317-CA 26 2021 UT App 86State v. Nunez
¶47 Ramsey is distinguishable from this case for three reasons.
First, this conviction was not based entirely on a single
statement—Witness’s testimony and medical expert testimony
corroborated the CJC interview’s contents. Second, setting aside
the State’s additional evidence, the court admitted the CJC
interview into evidence as a non-hearsay statement under Utah
Rule of Evidence 801(d)(1)(A)—thus, the statement did not
constitute hearsay. Third, and most distinguishable from Ramsey,
Kiara never denied the CJC interview’s contents. And both State
v. Seale, 853 P.2d 862 (Utah 1993), and State v. Stricklan, 2020 UT
65, 477 P.3d 1251, make it clear: these characteristics constitute
material distinguishing features.
¶48 In contrast to Ramsey, in Seale, the defendant faced various
charges, including charges for sexual abuse. Seale, 853 P.2d at
865, 874–76. For one victim, the “only affirmative evidence
supporting [the defendant’s] convictions for the aggravated
sexual abuse of” that victim was the videotape of the victim’s
interview with a social worker. Id. at 865, 876. Specifically
distinguishing Ramsey, the Seale court declared that “the
videotaped interview [was] sufficient to sustain [the
defendant’s] convictions” because the victim “did not deny or
recant what she told the interviewer in the videotape.” Id. at 876.
“Because the [interview] was appropriately admitted as
substantive evidence, the jury was fully entitled to weigh the
credibility of [the victim’s] videotaped statements and her
testimony on the stand against [the defendant’s] . . . testimony
and to decide who was telling the truth.” See id.
¶49 Further, in Stricklan our supreme court addressed Ramsey
head-on stating,
Although we speak of . . . Ramsey establishing a
“rule” that a single uncorroborated, out-of-court
statement cannot sustain a conviction, it is a rule
that does very little analytical work. . . . [Rather],
20190317-CA 27 2021 UT App 86State v. Nunez
we do what we always do when a defendant seeks
to set aside [a] conviction arguing insufficient
evidence: we review all of the evidence before the
jury to see if it dispels reasonable doubt of the
defendant’s guilt. . . . [W]here the out-of-court
statement is accompanied by additional persuasive
evidence, . . . sufficient evidence may exist to
uphold the conviction.
2020 UT 65, ¶ 60.
¶50 Here, the jury heard persuasive evidence in addition to
the interview, including: Kiara’s testimony on the stand,
Witness’s testimony, and evidence of Kiara’s relevant medical
examinations. Under these circumstances, the CJC interview’s
credibility was the jury’s to weigh, see Seale, 853 P.2d at 876, as
the “trier of fact is in a superior position to assess credibility”
and can “look at all of the evidence presented to it,” Stricklan,
2020 UT 65, ¶¶ 71, 99.
¶51 So, when presented with a sufficiency of the evidence
argument, the question before us is a totality consideration:
given the evidence the jury properly received, warts and all,
could the jury have reasonably come to a conviction beyond a
reasonable doubt? See Id. ¶ 82. In Seale, an undenied, out-of-
court, non-hearsay statement, uncorroborated by other evidence,
could, independently, sufficiently support a conviction. 853 P.2d
at 875–76. Thus, here, an undenied, out-of-court, non-hearsay
statement, corroborated by other evidence, necessarily suffices to
support the convictions.
¶52 Accordingly, the trial court did not plainly err in
declining to, sua sponte, render a directed verdict in Nunez’s
favor based on insufficiency of the evidence.
20190317-CA 28 2021 UT App 86State v. Nunez
B. Ineffective Assistance of Counsel
¶53 For similar reasons, Nunez’s ineffective assistance claim
also misses the mark. Nunez argues that defense counsel
rendered ineffective assistance by failing to move for a directed
verdict after the State had presented its evidence. “A trial court
is justified in granting a directed verdict only if, examining all
evidence in a light most favorable to the non-moving party,
there is no competent evidence that would support a verdict in
the non-moving party’s favor.” Merino v. Albertsons, Inc., 1999
UT 14, ¶ 3, 975 P.2d 467. Based on the reasoning described
above, defense counsel could have reasonably concluded that
Kiara’s CJC interview alone could sufficiently support the
charges, never mind that the jury would be considering other
corroborating evidence by way of Witness’s testimony and the
medical exam evidence. Having been able to reasonably
determine that the evidence could support a jury verdict,
defense counsel cannot have rendered ineffective assistance by
withholding a futile motion. State v. Baer, 2019 UT App 15, ¶ 14,
438 P.3d 979 (“[C]ounsel . . . did not render ineffective assistance
in failing to raise a futile motion.”); see also State v. Burdick, 2014
UT App 34, ¶ 34, 320 P.3d 55 (“It is well settled that counsel’s
performance at trial is not deficient if counsel refrains from
making futile objections, motions, or requests.” (cleaned up));
State v. Johnson, 2015 UT App 312, ¶ 16, 365 P.3d 730.
IV. Prosecutorial Misconduct
¶54 Nunez next contends that the court plainly erred in failing
to remedy, or that defense counsel rendered ineffective
assistance in failing to object to, alleged prosecutorial
misconduct during closing argument. However, both claims fall
short on their merits, as the prosecutor committed no
misconduct, and thus, the court had nothing to remedy and
defense counsel had nothing to object to.
¶55 During closing argument,
20190317-CA 29 2021 UT App 86State v. Nunez
counsel for each side has considerable latitude and
may discuss fully from their viewpoints the
evidence and the inferences and deductions arising
therefrom. However, a prosecutor’s actions and
remarks constitute misconduct that merits reversal
if the actions or remarks call to the attention of the
jurors matters they would not be justified in
considering in determining their verdict and,
under the circumstances of the particular case, the
error is substantial and prejudicial. In determining
whether a given statement constitutes
prosecutorial misconduct, the statement must be
viewed in light of the totality of the evidence
presented at trial.
State v. Wright, 2013 UT App 142, ¶ 39, 304 P.3d 887 (cleaned up).
Here, each statement that Nunez complains about survives
scrutiny as an evidence-supported inference the prosecutor
could permissibly draw for the jury.
¶56 First, Nunez takes issue with the prosecutor’s comments
that Kiara struggled to testify on the stand while suggesting that
this difficulty could have resulted from the passage of time. This
comment did not improperly vouch for Kiara or assert personal
knowledge about the evidence and, in making the comment, the
prosecutor raised no matters that the jury could not properly
consider. Instead, the prosecutor argued that time could have
dimmed Kiara’s memory and pointed out a critical distinction
that “incomplete” testimony is not the same as “inconsistent”
testimony.
¶57 Second, Nunez argues that the prosecutor improperly
referenced the CJC interviewer’s testimony in reiterating that the
interview protocol purposefully sought to “elicit details” and
“accurate information from a child” by requiring “stages and
steps . . . all done in an effort to get a good, reliable, honest,
20190317-CA 30 2021 UT App 86State v. Nunez
detailed statement from the child.” Again, this was not new
evidence, improper vouching, an assertion of personal
knowledge, or personal opinion about whether he thought the
CJC interviewer or Kiara told the truth. The prosecutor simply
reminded the jury of what it heard directly from the CJC
interviewer’s testimony.
¶58 Lastly, Nunez complains that the prosecutor referenced
matters not in evidence and uncorroborated unreliable
statements when he commented that Kiara “was repeatedly
abused” and “repeatedly raped” and that “maybe [Kiara] had
those many times confused.” However, where the State charged
Nunez with multiple counts of rape of a child and multiple
counts of sodomy on a child stating that Kiara “was repeatedly
abused” and “repeatedly raped” goes no further than the
charges’ elements would require—that the conduct occurred
more than once; in other words, repeatedly.
¶59 Because the prosecutor engaged in no misconduct, the
court cannot have erred by failing to intervene and defense
counsel cannot have rendered ineffective assistance by declining
to object.
V. Jury Deliberations
¶60 Finally, we examine Nunez’s claims surrounding Juror
35’s replacement. Nunez asserts that the court plainly erred by
restricting Juror 35 from describing in more detail the challenges
she faced in the jury room, by failing to recognize a deadlocked
jury, and by failing to declare a mistrial. Nunez also asserts that
defense counsel rendered ineffective assistance in failing to
object to the court’s refusal to allow Juror 35 to report in more
detail the challenges she faced in the jury room and failing to
object to Juror 35’s dismissal.
¶61 However, on close review of the record and the
difficulties all parties, the attorneys, and the court faced in this
20190317-CA 31 2021 UT App 86State v. Nunez
instance, we conclude that any court error was invited and that
defense counsel rendered objectively reasonable, effective
assistance.
A. Plain Error
¶62 In dealing with Juror 35 and her issues with deliberations,
the court recognized the difficulty of the situation and discussed
with both counsel how to proceed. Each time Juror 35 entered
chambers to discuss the issue with the court and both counsel,
defense counsel affirmatively requested that she be invited in to
discuss the issues.
¶63 During the discussions that followed, Juror 35 tried to
abide by the court’s instruction that she not tell the court about
the jury deliberations, including what was discussed, who said
what, what she had said, how she felt about the evidence or the
verdict, or anything else about what was going on in the jury
room. See supra ¶¶ 11, 14. Indeed, her comments revealed little
about what was going on in the jury room or where the
deliberations actually stood. While Juror 35 clearly experienced
emotional distress that derived from sharing her opinions in the
jury room, nothing she said suggested she was the only holdout,
either for conviction or acquittal, or that removing her would
essentially direct a verdict. The jury had asked the court, “If the
jury is hung, what is the next step?” and, “Are we able to have a
verdict on some counts and be hung on other counts?” Juror 35
also expressed, “I’m experiencing some anxiety . . . being in the
situation that I am in,” “I feel like how I feel in there I can’t think
clearly or like express my opinions openly,” and, “I feel like I’d
be interrogated . . . as to my opinion, and . . . a little bit badgered
in there.” But the court recognized that Juror 35 did not actually
reveal anything about the potential outcome of the deliberations
when it later said, “I don’t know what’s going on. There’s a
chance she’s a hold-out for conviction. There’s a chance she’s [a]
hold-out for acquittal. There’s a chance of anything.” And after
20190317-CA 32 2021 UT App 86State v. Nunez
taking time specifically to discuss this particular issue with
Nunez and his father, defense counsel represented to the court,
“I believe that Mr. Nunez, and his father, and both counsel agree
that under the circumstances expressed, that she be released.”
¶64 According to the record, defense counsel (1) requested
that the court restrict Juror 35 from discussing the deliberations’
content and (2) specifically agreed that she be released after
discussing it with Nunez. Thus, without deciding if an error
actually occurred, we conclude that the court cannot have
committed any error—plain or otherwise—because defense
counsel invited any potential error.
¶65 “[W]e have traditionally found invited error when the
context reveals that counsel independently made a clear
affirmative representation of the erroneous principle.” State v.
McNeil, 2016 UT 3, ¶ 18, 365 P.3d 699. “[I]f the trial court—not
counsel—is responsible for leading a courtroom discussion into
error, any resulting error is not invited.” Id. ¶ 19. However, “a
party who, without having objected to a proposed course of
action, affirmatively represents that they have no objection to it,
invites any resulting error.” State v. Cruz, 2016 UT App 234, ¶ 20,
387 P.3d 618. Here, the court suggested that inviting Juror 35 to
discuss the issue with certain restrictions, and ultimately
releasing Juror 35, could be one way of dealing with the
situation; defense counsel not only did not object to the
proposed course of action, but instead affirmatively represented
that the defense agreed both to restricting Juror 35’s deliberation
discussions and to ultimately releasing Juror 35. Thus, because
any error was invited, plain error does not apply.9 See id.
9. Nunez also contends that the trial court inappropriately
restricted Juror 35’s deliberation descriptions because Utah Rule
of Evidence 606 “prohibits a juror’s testimony post-verdict” and
does not limit “disclosures sought to be made by a juror pre-
(continued…)
20190317-CA 33 2021 UT App 86State v. Nunez
(indicating that the appellate court may decline to engage in
plain error review when the error is invited).
B. Ineffective Assistance of Counsel
¶66 Once again, Nunez fails to make a threshold showing that
defense counsel performed deficiently because the record before
us provides manifold reasons that could justify defense counsel’s
course of action. Nunez asserts that defense counsel rendered
ineffective assistance by failing to object to the court’s
restrictions on Juror 35’s deliberation discussions and by failing
to object to Juror 35’s dismissal. However, as we have pointed
out, defense counsel, far from objecting to both of these courses
of action, actually requested them. So, the question becomes
“Why?”—a question directly related to answering the ineffective
assistance analysis’s first prong.
¶67 First, we cannot conclude that defense counsel
unreasonably failed to object to the court’s restriction on Juror
35’s comments. It is “the long-established policy of the law to
keep jury deliberations both secret and sacrosanct.” State v.
Thomas, 830 P.2d 243, 249 (Utah 1992) (Stewart, J., concurring);
accord Cornia v. Albertson’s, 397 P.2d 66, 67 (Utah 1964) (“After
the jurors have retired to deliberate their privacy is sacrosanct.”
(…continued)
verdict and during trial.” But Nunez has provided no authority
suggesting that rule 606(b)’s focus on post-verdict inquiry
overrides substantial legal authority generally restricting inquiry
into deliberations. See infra ¶ 67. And where rule 606(b) explicitly
governs proceedings “[d]uring an inquiry into the validity of a
verdict,” see Utah R. Evid. 606(b), we do not believe, and Nunez
cites no authority to suggest, that this prohibition necessarily
negates other legal authority or otherwise invites a trial court to
freely inquire into ongoing jury deliberations.
20190317-CA 34 2021 UT App 86State v. Nunez
(cleaned up)); see also Johnson v. Maynard, 342 P.2d 884, 888 (Utah
1959) (“[T]he privacy of the jury room should be preserved from
influence from outside sources or any semblance thereof.”); Clark
v. United States, 289 U.S. 1, 13 (1933) (“Freedom of debate might
be stifled and independence of thought checked if jurors were
made to feel that their arguments and ballots were to be freely
published to the world.”). Defense counsel’s action, in
requesting the court to restrict Juror 35’s description of the
deliberations, comports with this well-known legal principle.
Moreover, Nunez has provided no support in rule or caselaw for
his proposition that defense counsel should have, or even could
have, foregone compliance with such a well-known legal
principle in these circumstances. We conclude that it was not
objectively unreasonable for defense counsel to act in accordance
with this well-established legal principle. Thus, having not
shown that “counsel’s representation fell below an objective
standard of reasonableness,” Nunez’s ineffective assistance
claim falls short on this point. See Strickland v. Washington, 466
U.S. 668, 688 (1984).
¶68 Second, we also conclude that defense counsel acted
reasonably in stipulating to the release of Juror 35 and replacing
her with the alternate juror as a matter of sound strategy. After
the second discussion with Juror 35, defense counsel requested a
five-minute recess to discuss the issue with Nunez and his
father. And, coming back from recess, defense counsel
affirmatively stated, “I believe that Mr. Nunez, and his father,
and both counsel agree that under the circumstances expressed,
that she be released.” Clearly, defense counsel did not suddenly
make a decision without considering it or discussing it. Rather,
this decision’s context shows that it was a reasoned, strategic
choice that came after conversation and consideration.
¶69 The record provides ample justifications for a strategy
that allowed Juror 35 to be released. As an initial matter, we note
that Kiara had essentially failed to effectively testify at trial,
20190317-CA 35 2021 UT App 86State v. Nunez
forcing the State to rely on other evidence to establish the
charges’ elements and to corroborate that evidence. In addition,
the jury had already been in active deliberations around ten
hours over the course of two days and had asked questions such
as, “If the jury is hung, what is the next step?” and “Are we able
to have a verdict on some counts and be hung on other counts?”
Moreover, nothing suggested that Juror 35 acted as the only
holdout. This timeline and these questions could suggest to a
reasonable defense attorney that things may have been headed
the client’s way. An attorney, acting reasonably, could decide
not to throw away the opportunity to keep a jury wrestling over
the State’s case. Requesting a mistrial would have done exactly
that. See United States v. Dinitz, 424 U.S. 600, 607 (1976) (“Where
circumstances develop not attributable to prosecutorial or
judicial overreaching, a motion by the defendant for mistrial is
ordinarily assumed to remove any barrier to reprosecution, even
if the defendant’s motion is necessitated by prosecutorial or
judicial error.” (cleaned up)).
¶70 And keeping Juror 35 on the jury could have been equally
as detrimental. Indeed, defense counsel’s interactions with Juror
35 could have persuaded him as much. For instance, during their
discussion, Juror 35 confirmed that she “struggle[d] suffering
from incidents that occurred previously,” that she “continue[d]
to dwell on or suffer from events that happened in the past,” and
that she believed this event could cause her to suffer in the
future. From this, defense counsel could reasonably have
guessed or inferred that certain of the trial’s contents could have
negatively triggered Juror 35 and that these feelings and
emotions she was experiencing would be detrimental to Nunez’s
case. Indeed, for all defense counsel knew at the time, Juror 35
could have been the lone holdout for conviction; as the trial
court correctly stated, “I don’t know what’s going on. There’s a
chance she’s a hold-out for conviction. There’s a chance she’s [a]
hold-out for acquittal. There’s a chance of anything.”
20190317-CA 36 2021 UT App 86State v. Nunez
¶71 But even if we posit that Juror 35 was the lone holdout for
an acquittal, defense counsel still could have reasonably acceded
to her being removed as a juror. Referring to the deliberations,
Juror 35 explicitly stated, “I feel a little bit badgered in there. So
like I don’t want to change an opinion because of that, and I
don’t know if I’m required as a juror to like how much I have to
explain to the other jurors of why I stand where I do, because I
feel like I’ve done that, but [the questioning has] just continued”
and that she was “starting to shut down from before.” Based on
this, a reasonable attorney could seek to remove her from the
jury to avoid the risk that she tired of the fight and resigned her
opinion to match the others. If defense counsel discerned that
Juror 35 was likely to change her opinion because she was tired
or badgered, the scope of reasonable representation would
certainly allow replacing the risky juror in favor of a fresh mind
who might put up more of a fight.
¶72 “Appellate courts have upheld the dismissal and
replacement of jurors whose physical or mental condition
prevented them from effectively participating in deliberations,”
even when the “infirmity as a juror could have been triggered or
exacerbated by . . . disagreement with the other jurors.” Perez v.
Marshall, 119 F.3d 1422, 1427 (9th Cir. 1997) (collecting cases). So
too here, defense counsel did not perform deficiently in allowing
Juror 35 to be replaced when she appeared to be emotionally
unable to continue in the deliberations.
¶73 Defense counsel did not provide ineffective assistance in
allowing the court to replace Juror 35 with an alternate or in
declining to seek a mistrial. Multiple considerations could have
persuaded defense counsel, and indeed Nunez himself (as he
was part of the discussion with defense counsel that led to the
decision), that replacing Juror 35 would be an appropriate trial
strategy and that pursuing a mistrial could be detrimental to his
cause.
20190317-CA 37 2021 UT App 86State v. Nunez
CONCLUSION
¶74 The court did not exceed its discretion in admitting
Kiara’s CJC interview, and the court did not plainly err, nor did
defense counsel provide ineffective assistance, regarding its
admission. Further, the court did not exceed its discretion in
admitting Witness’s testimony or in excluding Nunez’s
proposed impeachment evidence, nor did defense counsel
render ineffective assistance in dealing with Witness’s testimony.
Sufficient evidence existed to support the verdict, and as a result,
the court did not plainly err in failing, sua sponte, to enter, nor
did defense counsel provide ineffective assistance in declining to
request, a directed verdict. In addition, the alleged prosecutorial
misconduct presented no error that obligated either the court or
defense counsel to act. Finally, we conclude that defense counsel
invited any error the court made in restricting Juror 35’s
comments or in ultimately dismissing Juror 35, and in that
process, defense counsel did not render ineffective assistance
through the pursued legal strategy.
¶75 Accordingly, we affirm Nunez’s convictions.
20190317-CA 38 2021 UT App 86