State v. Nunes

2020 UT App 145THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ASHTEN NUNES,
Appellant.
Amended Opinion *
No. 20161070-CA
Filed October 22, 2020
Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 151903010
Freyja R. Johnson, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGE DIANA HAGEN concurred.
JUDGE GREGORY K. ORME dissented, with opinion.
CHRISTIANSEN FORSTER, Judge:
¶1 Appellant Ashten Nunes challenges his conviction for
rape, contending that his trial counsel (Trial Counsel) provided
ineffective assistance. We affirm.
* This Amended Opinion replaces the Opinion in Case No.
20161070-CA issued on April 30, 2020. After our opinion issued,
the Appellant filed a petition for rehearing, and we called for a
response. We grant the petition for the purpose of clarifying the
analysis in paragraphs 24 to 33 of the Amended Opinion, which
necessitated corresponding changes to the dissenting opinion.
State v. Nunes
BACKGROUND 1
¶2 In September 2013, Nunes, then seventeen, met a
fourteen-year-old girl (Victim) at a concert. Victim and Nunes
soon began communicating through text messages and a variety
of social media platforms. Victim felt she could relate to Nunes
because they both had “a troubled home life” and “a hard
upbringing.” Victim was also “intrigued” by Nunes “because he
was into things like magic and crystals.” Their electronic
communication soon turned sexual, with Nunes messaging
Victim about what he wanted to do with her sexually. Victim
then began sneaking out of her house, against her parents’
express wishes, to spend time with Nunes at his mother’s home.
Victim enjoyed going there because she could do drugs and
Nunes’s mother “didn’t care” and never told her to go home. But
Victim’s father did care, and he soon secured a protective order
barring any contact between Nunes and Victim. Nunes and
Victim consistently disregarded the protective order. Victim also
admitted, “I cared about [Nunes] because he told me things that
nobody has ever told me before and it made me feel like I was
actually loved by someone and that’s really all I wanted at that
time, because I had no one . . . .”
¶3 Nearly every time Nunes and Victim spent time together,
Nunes would grope Victim and “beg[] . . . to have sex” with her,
but Victim would consistently “push him off,” tell him no, and
say that she was “not ready.” Because Victim had never been in
a relationship before, she did not realize that Nunes’s behavior
was “not normal,” and she “just kind of [went along] with it.”
That said, Nunes consistently abided by Victim’s drawing the
line at sexual intercourse during this period.
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
20161070-CA 2 2020 UT App 145State v. Nunes
¶4 Throughout the entirety of their relationship, Nunes often
talked about another girl he was dating, which made Victim
angry and jealous. But whenever Victim attempted to end the
relationship, Nunes threatened to kill himself or hurt Victim or
Victim’s father.
¶5 On December 5, 2014, Victim, then fifteen, and Nunes,
then eighteen, went to Nunes’s house, where he had recently
moved, and began kissing on his bed. Nunes attempted to
remove Victim’s clothes, but she again refused to engage in
sexual intercourse.
¶6 The sexual activity giving rise to the rape charge in this
case occurred the next day (December 6, 2014) at Nunes’s house.
Before arriving, Victim messaged Nunes stating that she was
“excited to see [him] and give [him] somethin somethin,” which
she revealed to be “shrooms and birth control.” 2 When she
arrived at his house, Nunes began to kiss her, and she
reciprocated. Victim then “freely” followed Nunes into his
bedroom, which had a red sticker on the wall “that said ‘rape’
and that really scared [her].” Nunes removed her clothing and
propped her up on her knees while holding her head down
against his bed. Victim testified at trial that Nunes at no point
asked whether she wanted to have sex. To the contrary, she
testified that she expressly asked him to stop “before he even did
anything,” but he ignored her request and inserted his penis into
her anus and vagina, while she screamed and cried. 3 She
2. The term “shrooms” refers to mushrooms containing
psilocybin, an illegal substance that produces a hallucinogenic
effect “that alter[s] a person’s awareness of their surroundings as
well as their own thoughts and feelings.” Hallucinogens, Nat’l
Inst. on Drug Abuse, https://www.drugabuse.gov/publications/
drugfacts/hallucinogens [https://perma.cc/NTZ3-ZJPC].
3. Victim testified that Nunes sodomized her; however, he was
acquitted on this charge.
20161070-CA 3 2020 UT App 145State v. Nunes
testified that she “definitely said stop once he started” and that
Nunes was “doing this black magic chant while he was raping”
her and “was saying this thing about demons” and how she now
belonged “in his whorehouse.” She also testified that after the
rape, “there was blood on [her] hands and . . . all over [her].”
Victim stated that the sexual assault “hurt more than anything
[she had] ever experienced” and made her wonder “why . . .
people enjoy sex.” She later revealed that she “didn’t realize that
[sexual intercourse] didn’t have to hurt so much.” 4
¶7 During cross-examination, Trial Counsel highlighted
inconsistencies among Victim’s trial testimony, her initial
interview with the investigating detective (Detective), and her
testimony at the preliminary hearing. In the interview with
Detective, Victim said that she was initially kneeling while
Nunes penetrated her anus, but she turned around and asked
him if they could cuddle instead. Victim told Detective that
Nunes agreed, and she shifted to her side and he began to
penetrate her again. Victim also told Detective, according to his
notes, that Nunes had asked her whether she wanted to have
intercourse, to which she responded that she did. Additionally,
at the preliminary hearing, Victim testified that her “eyes were
watering but [she] wasn’t really crying” and that Nunes first
penetrated her vagina then her anus.
¶8 Victim testified that she did not initially realize that she
had been raped after the sexual encounter with Nunes: “I didn’t
know what sex was supposed to be like and I didn’t [know]
what rape was like and I just [thought] maybe . . . this isn’t
meant for me or maybe I’m too young or maybe I was doing
something wrong or maybe I should just get used to it.” She
4. When Victim testified to the details of her relationship with
Nunes and the sexual assault, see supra ¶¶ 2–6, she twice
mentioned that Nunes had been in jail. Trial Counsel did not
object because he “didn’t want to draw attention to it.”
20161070-CA 4 2020 UT App 145State v. Nunes
further testified that she had always conceived of rape in
different terms:
What they tell you in school, like a girl walking
down an alleyway in the middle of the night and
being kidnapped by some weirdo or some guy in a
van saying there’s candy, come get some candy or
being drugged by some college frat boy at a party.
I never thought that rape could be someone that—
from someone that I trusted.
After the rape, Victim told Nunes that she wanted to go home.
Nunes called his mother to come pick them up, and Nunes’s
mother came and drove them to Victim’s house. Victim said she
was “trying so hard not to cry” as she sat next to Nunes in the
car on the way home, but she still kissed him goodnight when
she got out of the car. Once home, Victim sent Nunes a message
saying, “[T]hank you lovely,” and telling him that she loved him
so much that she could not even “begin to put [it] into words.”
They also discussed getting together the next day to go
snowboarding. In contrast to this seemingly affectionate
behavior, Victim also testified that after she got to her house, she
“just cried for a long time” and “took a long shower.” She
recalled thinking that she “never wanted to have sex after that if
that’s what sex was.”
¶9 Although they did not go snowboarding the next day,
they continued to exchange messages. Nunes asked Victim if she
would kiss his other girlfriend in front of him, a request which
greatly upset Victim. Nunes also told Victim he was angry that
his other girlfriend had cheated on him, and Victim responded
that Nunes “cheated on her yesterday too” and said,
“[R]emember you fucked someone else last night too.” Victim
also told Nunes, “I gave everything away to you and you don’t
even fucking care. [T]hat kills me,” and, “I lost my virginity to
you last night and you mean everything to me, but I won’t take
you treating me like that.”
20161070-CA 5 2020 UT App 145State v. Nunes
¶10 The day after this exchange, Victim reported to her school
counselor that she felt suicidal, and she was subsequently
admitted to the hospital. Once discharged, Victim messaged
Nunes, telling him that he was “the only thing keeping [her]
here.” For the next month, Nunes and Victim continued to
communicate. In these messages, Victim was initially
affectionate, but as the days progressed, she explicitly indicated
that she did not want to see Nunes anymore, to which Nunes
would respond with threats of suicide. On January 3, 2015,
Victim messaged Nunes to stop contacting her.
¶11 A few days later, on January 6, Victim disclosed to her
psychotherapist (Counselor), a licensed clinical social worker,
that “she had lost her virginity,” whereupon she “went into a
full-blown panic attack, . . . hyper-ventilating . . . [and] sobbing”
for about twenty minutes. After being calmed by Counselor,
Victim described what happened on December 6, 2014. It became
apparent to Counselor that Victim thought she was describing a
sexual experience and not reporting a crime. But after hearing
Victim’s description, Counselor informed Victim, “[T]hat wasn’t
sex[;] that was rape.” Victim “was relieved” by this evaluation
and said she “knew that something was wrong.” Counselor then
told her that she was going to report the incident to Victim’s
parents, but Victim “begged” her not to do so. During a follow-
up session two days later, Counselor convinced Victim that her
parents must be told that day about the incident. Victim’s father
reported the rape to the Division of Child and Family Services,
and on January 29, 2015, Victim was interviewed by Detective at
the Children’s Justice Center (CJC). Detective subsequently
searched Nunes’s house and found a blanket with four potential
blood stains. The stains were tested, and one stain matched
Victim’s DNA.
¶12 In early February, Victim was examined by a doctor. The
examination revealed a healed cut to her hymen. The doctor who
performed the examination testified that the cut was “entirely
consistent” with Victim’s account of being raped, but he
acknowledged that the cut could also have resulted from
20161070-CA 6 2020 UT App 145State v. Nunes
consensual intercourse. 5 The examination did not reveal any sign
of injury to Victim’s anus, but the doctor explained, “[E]ven in
acute exams, exams that are done immediately or within a few
days of an assault, we seldom see anal trauma.” The doctor
noted that one would “not necessarily” expect to find trauma
even “[i]f something went into the anus without any lubrication
and against a person’s will.”
¶13 The State subsequently charged Nunes with one count of
rape and one count of forcible sodomy, both first-degree
felonies, and ten counts of violation of a protective order, class A
misdemeanors. Nunes conceded at trial that he was guilty of
violating the protective order multiple times, but he maintained
that he had consensual sex with Victim and therefore was not
guilty of rape or forcible sodomy. 6
5. The doctor was speaking medically, not legally, as victims
need not be subjected to physical force for sexual activity to be
considered “without consent.” See, e.g., Utah Code Ann.
§ 76-5-406(11) (LexisNexis Supp. 2014) (“An act of sexual
intercourse . . . is without consent of the victim . . . [if] the victim
is 14 years of age or older, but younger than 18 years of age, and
the actor is more than three years older than the victim and
entices or coerces the victim to submit or participate . . . .”).
6. Under the then-existing statutory scheme, the age difference
and acknowledgement of the sexual intercourse alone would
have been sufficient to convict Nunes of unlawful sexual activity
with a minor, a class B misdemeanor, given the three-and-a-half-
year age difference between Nunes and Victim. See Utah Code
Ann. § 76-5-401(2)–(3) (LexisNexis 2012) (“[An] actor . . . [who]
has sexual intercourse with a minor [commits] . . . a third degree
felony unless the defendant establishes by a preponderance of
the evidence the mitigating factor that the defendant is less than
four years older than the minor at the time the sexual activity
occurred, in which case it is a class B misdemeanor.”). Rather
(continued…)
20161070-CA 7 2020 UT App 145State v. Nunes
¶14 At trial, Detective testified about his interview of Victim
at the CJC. As Detective was describing the reason for the
interview, the State asked Detective what Victim had told him
about the events of December 6, 2014, and he responded that
Victim said “[t]hat she had been raped.” Trial Counsel did
not object.
¶15 Counselor testified about the counseling session during
which Victim first disclosed her sexual encounter with
Nunes. After testifying about Victim’s panic attack and eventual
calming down, the State asked, “[W]hat words was [Victim]
able to tell you?” Trial Counsel promptly lodged a hearsay
objection. In response to that objection, the State argued that
whatever Victim told Counselor could come in as a prior
consistent statement: “It’s the first statement that she made when
[she was] not under the influence to make anything up and . . .
[Trial Counsel] has specifically cross-examined [Victim] on the
different statements that she made” at the CJC, the preliminary
hearing, and at trial. The trial court responded, “Consistent
(…continued)
than pursue this lesser charge, the State chose to charge Nunes
with rape and forcible sodomy—both first-degree felonies. See id.§§ 76-5-402(3), -403(4) (LexisNexis Supp. 2014). Rape, of which
the jury convicted Nunes, required the State to prove “sexual
intercourse with another person without the victim’s consent.”
Id. § 76-5-402(1). By statute, that lack of consent can be shown in
twelve specific ways, six of which were articulated in the jury
instructions. See id. § 76-5-406(1)–(2), (4)–(6), (11). One instruction
implicated the age difference between Nunes and Victim, see id.
§ 76-5-406(11), but additionally required the State to show that
Nunes had “enticed or coerced [Victim] to submit or
participate.” Thus, the age difference alone was not enough to
constitute rape under section 76-5-406(11)—it was the age
difference in conjunction with enticement or coercion. It is
unclear which of the six lack-of-consent theories the jury relied
on in reaching its guilty verdict on the rape charge.
20161070-CA 8 2020 UT App 145State v. Nunes
statements. I think once you impeach her on [a] different
statement she’s made, then the State can—,” and before the court
could complete its thought and rule, Trial Counsel withdrew the
objection. Counselor went on to testify that Victim told her that
Nunes “had held her down”; that Victim “begged him to stop”;
that “when she was screaming for him to stop, he would do it
harder”; and “that she was begging and begging and begging
and begging for him to stop.” Counselor testified that Victim
told her that Nunes “hit her,” “scratch[ed] her as hard as he
could,” “chant[ed] some sort of bizarre satanic crazy chant over
and over,” and “had drawn a symbol on her back and told her
that she was part of his whorehouse now.”
¶16 Mother testified that she had attended a therapy
session with Victim and Counselor, and when asked whether it
appeared Victim “was faking” when she described the
sexual assault, Mother responded, “Not at all, no.” Trial Counsel
did not object to Mother’s statement. Having also heard
from several other witnesses, the jury convicted Nunes on one
count of rape and ten counts of violation of a protective order
but acquitted him of forcible sodomy. Nunes appeals the rape
conviction.
ISSUES AND STANDARD OF REVIEW
¶17 Nunes raises several claims of ineffective assistance of
counsel that merit our consideration. Nunes argues that Trial
Counsel was ineffective for failing to object when Victim’s
mother (Mother) vouched for Victim’s credibility, for
withdrawing an objection to Counselor’s hearsay testimony, and
for failing to object to hearsay testimony from Detective. 7 “When
7. Nunes also claims that Trial Counsel provided ineffective
assistance when he “apparently withdr[ew]” an objection to
Mother’s hearsay testimony. But on review of the record, it is
clear that Trial Counsel did not “apparently” withdraw the
objection, as Nunes claims, but simply said, “Okay,” after the
(continued…)
20161070-CA 9 2020 UT App 145State v. Nunes
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.” Layton City v. Carr, 2014
UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified). 8
ANALYSIS
¶18 “To ensure a fair trial, the Sixth Amendment [to] the U.S.
Constitution guarantees the right to effective assistance of
counsel.” State v. Campos, 2013 UT App 213, ¶ 23, 309 P.3d 1160.
To prevail on an ineffective assistance of counsel claim,
Nunes must show that (1) “counsel’s performance was deficient”
and (2) this “deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). “Because failure
(…continued)
judge explained why the testimony would be admitted. This
does not appear to be a withdrawal of the objection so much as
Trial Counsel accepting the ruling of the court after it was
obvious he was not going to prevail on the objection.
8. Nunes also asserts that Trial Counsel “was ineffective when he
failed to object, ask for a curative instruction, or move for a
mistrial, when [Victim] twice mentioned that [Nunes] had been
in jail.” At a bench conference, Trial Counsel informed the court
that he had noticed the references to jail “but didn’t want to
draw attention to it.” This could well have been a reasonable
strategic choice for Trial Counsel to make, and thus we decline
to address it further. See State v. Shepherd, 2015 UT App 208, ¶ 52,
357 P.3d 598 (stating that not wanting to “highlight” a
“troublesome point” is a possible tactical reason for “defense
counsel’s decision not to object”); see also State v. Larrabee, 2013
UT 70, ¶ 27, 321 P.3d 1136 (stating that the proposition “that
there are times when counsel’s decision not to object can be both
strategic and proper” is “axiomatic”).
20161070-CA 10 2020 UT App 145State v. Nunes
to establish either prong of the test is fatal to an ineffective
assistance of counsel claim, we are free to address [Nunes’s]
claims under either prong.” See Honie v. State, 2014 UT 19, ¶ 31,
342 P.3d 182.
¶19 To succeed on the first prong, Nunes must overcome the
strong presumption that his trial counsel rendered adequate
assistance by persuading this court that “considering all the
circumstances, counsel’s acts or omissions were objectively
unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350(quotation simplified). This review is “highly deferential” as it
can be “all too easy for a court, examining counsel’s defense after
it has proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable.” Strickland, 466 U.S. at
689. Thus, “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.
Nelson, 2015 UT 62, ¶ 14, 355 P.3d 1031 (quotation simplified). “If
the court concludes that the challenged action might be
considered sound trial strategy, it follows that counsel did not
perform deficiently.” Scott, 2020 UT 13, ¶ 35 (quotation
simplified).
¶20 In evaluating a claim that counsel was deficient for failing
to make an objection, deficient performance does not hinge
solely on the merits of the objection. Counsel “may well have
made a reasonable tactical choice” in forgoing the objection even
if “there may have been grounds to object.” State v. Clark, 2004
UT 25, ¶ 7, 89 P.3d 162. Thus, the dispositive question is whether
counsel’s actions “fell below an objective standard of
reasonableness,” Strickland, 466 U.S. at 688, and not whether an
objection would have been well-taken.
¶21 If a defendant is able to overcome the high threshold of
demonstrating that his counsel performed deficiently, he must
next show that “the deficient performance prejudiced the
20161070-CA 11 2020 UT App 145State v. Nunes
defense.” Id. at 687. Counsel’s deficient performance is
prejudicial if “a reasonable probability exists that but for the
deficient conduct defendant would have obtained a more
favorable outcome.” State v. Parkinson, 2018 UT App 62, ¶ 9, 427
P.3d 246 (quotation simplified). This requirement “is a relatively
high hurdle to overcome.” State v. Apodaca, 2018 UT App 131,
¶ 77, 428 P.3d 99 (quotation simplified), aff’d, 2019 UT 54, 448
P.3d 1255. “Most notably this means that a mere potential effect
on the outcome is not enough.” State v. Apodaca, 2019 UT 54,
¶ 50, 448 P.3d 1255. “Rather, the defendant must show a
substantial likelihood of a different result as a demonstrable
reality and not merely as a speculative matter.” State v. Heath,
2019 UT App 186, ¶ 74, 453 P.3d 955 (quotation simplified).
I. Mother’s Testimony
¶22 Nunes first argues that Trial Counsel “was ineffective
when he failed to object when Mother vouched for [Victim’s]
credibility.” At trial, Mother testified that she attended a
counseling session with Victim and Counselor during which
Victim informed Mother about the rape. The State asked Mother,
“When you were sitting there talking to [Victim] and she was
talking to you about what happened, did it appear that she was
faking?” Mother responded, “Not at all, no.” Trial Counsel did
not object to this question. Nunes argues on appeal that Trial
Counsel was deficient in failing to object to Mother improperly
vouching for Victim’s credibility, pursuant to rule 608(a) of the
Utah Rules of Evidence, which “permits testimony concerning a
witness’s general character or reputation for truthfulness but
prohibits any testimony as to a witness’s truthfulness on a
particular occasion.” State v. Adams, 2000 UT 42, ¶ 11, 5 P.3d 642(quotation simplified).
¶23 Assuming without deciding that Trial Counsel performed
deficiently by failing to object to this vouching, this claim
nevertheless fails because Nunes has not shown prejudice. First,
Mother’s comment was relatively isolated, coming on the second
day of a four-day trial that involved thirteen witnesses. Second,
20161070-CA 12 2020 UT App 145State v. Nunes
it is unlikely that the jury would have been surprised that
Mother believed Victim was telling the truth. See State v. King,
2010 UT App 396, ¶ 46, 248 P.3d 984 (explaining that it is
unsurprising that a relative would believe that a close family
member is telling the truth). Given the “incidental nature of the
challenged statement and the fact that most jurors are likely to
assume that a mother will believe accusations of sexual abuse
made by her own children, we cannot conclude that the
challenged portion of [Mother’s] testimony had any significant
impact on the jury’s decision to convict” Nunes. See State v. Dew,
738 S.E.2d 215, 219 (N.C. Ct. App. 2013); see also People v. Valdez,
No. 255580, 2005 WL 1490096, at *4 (Mich. Ct. App. June 23,
2005) (per curiam) (“[I]t is highly improbable that the jurors
decided the case on the basis that a mother believed her child.”);
State v. Ramey, 349 S.E.2d 566, 572 (N.C. 1986) (“It is unlikely that
the jury gave great weight to the fact that a mother believed that
her son was truthful. We believe this evidence had little, if any,
impact on the jury’s decision and did not ‘tilt the scales’ causing
the jury to convict the defendant.”). 9 Thus, there is no reasonable
9. It is true that our jurisprudence is replete with cases that
indicate disfavor with one witness vouching for the credibility
on a particular occasion of another witness, see, e.g., State v.
Cegers, 2019 UT App 54, ¶ 38, 440 P.3d 924; State v. Burnett, 2018
UT App 80, ¶ 40, 427 P.3d 288; State v. Stefaniak, 900 P.2d 1094,
1095–96 (Utah Ct. App. 1995); State v. Iorg, 801 P.2d 938, 941–42
(Utah Ct. App. 1990). But we disagree with the dissent’s
assertion that Mother’s “testimony is equivalent to other
testimony that has been held to impermissibly bolster another
witness’s credibility.” Infra ¶ 46. Unlike a police detective or an
expert witness, a mother’s positive take on her daughter’s
believability would not have come as a surprise to the jury. See
State v. King, 2010 UT App 396, ¶ 46, 248 P.3d 984 (distinguishing
bolstering by expert witnesses from bolstering by a grandmother
who reported abuse given that “as a close family member who
had made such a report, it would come as no real surprise to the
jury that she believed her granddaughter” and concluding that
(continued…)
20161070-CA 13 2020 UT App 145State v. Nunes
probability that Nunes would have been acquitted of rape had
Trial Counsel objected to Mother’s vouching and moved to have
that testimony stricken.
II. Hearsay Testimony
¶24 Nunes next argues that Trial Counsel was deficient in
withdrawing his objection to Counselor’s hearsay statements.
During Counselor’s testimony, the State asked her to specify
what Victim had disclosed in their January 6, 2015 therapy
session. At this point, Trial Counsel properly lodged a hearsay
objection. In response, the State argued that Victim’s hearsay
statements to Counselor were admissible as prior consistent
statements pursuant to rule 801(d)(1)(B) of the Utah Rules of
Evidence. Trial Counsel then withdrew the objection.
¶25 In Utah courts, prior consistent statements may be
admitted as evidence of the truth of what is contained in the
statement to rehabilitate a witness’s testimony, but such
statements are admissible only if they “were made prior to the
time a motive to fabricate arose” or are admissible to rehabilitate
a witness after that witness’s credibility has been attacked at trial
and the jury is instructed to consider such testimony only for
rehabilitative purposes. See State v. Bujan, 2008 UT 47, ¶¶ 1, 9,
190 P.3d 1255. Here, however, Victim’s statements to Counselor
were most likely inadmissible as prior consistent statements
because any motive Victim had to fabricate a rape allegation
against Nunes would have arisen soon after the rape and before
Victim made her disclosure to Counselor. See supra ¶ 9. And
neither party asked for an instruction informing the jury that
Counselor’s testimony was admitted for only rehabilitative
purposes. See Bujan, 2008 UT 47, ¶ 9. Instead of persisting in
(…continued)
because the grandmother’s “testimony added nothing to the
alleged victim’s credibility, any incidental bolstering by the
grandmother was harmless”).
20161070-CA 14 2020 UT App 145State v. Nunes
what appears to have been a non-frivolous objection to
Counselor’s hearsay testimony, Trial Counsel withdrew the
objection. But assuming without deciding that Trial Counsel
performed deficiently in withdrawing a valid hearsay
objection, 10 thereby allowing Counselor to retell Victim’s account
10. We resolve this case by assuming that Counselor’s testimony
was in fact inadmissible hearsay but concluding that Nunes was
not prejudiced by its admission. Although neither party raises
this issue on appeal and the State did not seek to rebut Trial
Counsel’s hearsay objection in this manner, the record
demonstrates that Counselor’s testimony may have been
admissible under rule 803 of the Utah Rules of Evidence. Rule
803(4) creates an exception to the rule against hearsay for
statements that (1) are “made for—and [are] reasonably
pertinent to—medical diagnosis or treatment” and (2)
“describe[] medical history; past or present symptoms or
sensations; their inception; or their general cause.” Utah R. Evid.
803(4). “Rule 803(4) applies to statements made to a psychiatrist
or a psychologist for the purpose of medical diagnosis or
treatment,” and generally “all statements made to psychiatrists
or psychologists, regardless of content, are relevant to diagnosis
or treatment since experts in the field view everything relating to
the patient as relevant to the patient’s personality.” State v.
Schreuder, 726 P.2d 1215, 1224 (Utah 1986). And Utah courts have
repeatedly held that statements by rape victims made to medical
providers describing their abuse are admissible under rule
803(4). See, e.g., State v. Guzman, 2018 UT App 93, ¶¶ 29–30, 427
P.3d 401 (finding that a rape victim’s statements to a nurse were
made for the purposes of medical diagnosis where the victim
told the nurse that she had been raped four times in response to
the nurse’s questioning); State v. Burnside, 2016 UT App 224,
¶ 43, 387 P.3d 570 (affirming a district court’s finding that “in
examining [the victim], the nurse practitioner was acting as a
health-care professional and that [the victim’s] statements to her
fell within the medical treatment hearsay exception”); State v.
Sloan, 2003 UT App 170, ¶ 21 n.2, 72 P.3d 138 (holding that a
(continued…)
20161070-CA 15 2020 UT App 145State v. Nunes
of her rape to the jury, Nunes still cannot show prejudice,
because the testimony at issue did not impermissibly bolster
Victim’s credibility or otherwise alter the evidentiary landscape
in a way that had a reasonable probability of affecting the
outcome of the trial.
¶26 Nunes’s theory at trial was that the sexual activity was
consensual and that Victim claimed otherwise only after the fact
because she became jealous of Nunes’s other girlfriend and
began to regret that she had “lost her virginity” to him.
Although “courts are more likely to reverse a jury verdict if the
pivotal issue at trial was credibility of the witnesses and the
errors went to that central issue,” State v. Thompson, 2014 UT
App 14, ¶ 73, 318 P.3d 1221, Counselor’s testimony merely
repeated Victim’s account. Because Victim spoke to Counselor
after the alleged motive to fabricate arose, Counselor’s testimony
did nothing to undermine Nunes’s theory that Victim concocted
the story out of jealousy. The fact that Counselor recounted to
the jury the same post-motive details (i.e., those associated with
Victim’s account of the rape after her alleged motive to fabricate
arose) that Victim had already told the jury does not make
Victim’s account of the rape more or less believable. Therefore,
there is no reasonable probability that Counselor’s testimony
tipped the credibility balance toward Victim and away from
Nunes.
¶27 Moreover, Counselor did not vouch for the credibility of
Victim. To be sure, in cases that hinge entirely on the veracity of
the victim, we have more readily found prejudice where the
(…continued)
licensed clinical social worker’s testimony regarding a sex abuse
victim’s out-of-court statements made during her evaluation
were admissible under rule 803(4)). Furthermore, statements
coming in under rule 803(4) are not limited to explaining the
basis of a medical opinion but can be offered to prove the truth
of the matter asserted. Schreuder, 726 P.2d at 1223.
20161070-CA 16 2020 UT App 145State v. Nunes
challenged testimony has the effect of bolstering the victim’s
credibility. See, e.g., State v. Cegers, 2019 UT App 54, ¶¶ 33, 37,
440 P.3d 924; State v. Stefaniak, 900 P.2d 1094, 1096 (Utah Ct. App.
1995); State v. Iorg, 801 P.2d 938, 941–42 (Utah Ct. App. 1990). But
this is not a bolstering case. Counselor did not “offer[] a direct
opinion as to [Victim’s] truthfulness on a particular occasion.”
See Cegers, 2019 UT App 54, ¶ 26 (quotation simplified). She did
not testify, for example, that Victim “appeared to be genuine,”
see State v. Bragg, 2013 UT App 282, ¶ 31 & n.8, 317 P.3d 452(quotation simplified), “seemed to be quite candid about what
she was telling” her, see Stefaniak, 900 P.2d at 1095 (quotation
simplified), or displayed “indicators that would show a
likelihood of honesty,” see State v. Vail, 2002 UT App 176, ¶¶ 6,
15, 51 P.3d 1285 (quotation simplified). Nor did Counselor
provide testimony “calculated to bolster [Victim’s] believability
by assuring the jury no credibility problem was presented by the
delay in [Victim’s] reporting the incident.” See Iorg, 801 P.2d at
942. Instead, Counselor’s testimony largely repeated the same
facts to which Victim had already testified at length and did not
address Victim’s credibility.
¶28 While it is true that Victim did not testify to certain details
(e.g., hitting and scratching) that Counselor mentioned, Victim
did testify in vivid detail to all the other facts recounted by
Counselor. In her own testimony, Victim explained that Nunes
“propped [her] legs up” so that she was “kneeling” and held
“the back of [her] neck so it was pressed against the bed.” There
was a “red sticker that said ‘rape’” on his wall that “scared
[her] . . . before he even did anything” to her, and she asked him
to stop. Then Victim said,
[H]e just did it and it hurt so bad and I was like
screaming and crying and he was holding me
down. I was telling him to stop.
And he—he . . . put it in my vagina and . . . he
didn’t even like use anything, it was just like—felt
like it was ripping and he was saying this thing
20161070-CA 17 2020 UT App 145State v. Nunes
about demons and how I [be]long in his
whorehouse and like doing this black magic chant
while he was raping me and I was crying and I was
telling him to stop.
¶29 Victim was also asked to read the transcript of her
interview with Detective, which the defense offered into
evidence in its entirety, focusing specifically on the part where
she explained that Nunes had held down her head, that she was
screaming and crying for him to stop, and that he would go
faster every time she screamed for him to stop. And the jury had
already heard from Victim that she told Counselor “everything”
that happened. Thus, Victim’s testimony alone contained all the
facts necessary to establish the elements of the offenses charged,
and Counselor’s recitation of what Victim told her—even with
the addition of the few added details about hitting and
scratching—was no more inflammatory than Victim’s own
account. In light of the brutal details of the rape that the jury had
already heard from Victim, there is no reasonable likelihood that
a single, passing reference to hitting and scratching so
prejudiced Nunes that the jury would have otherwise
acquitted. 11 See State v. Jackson, 2010 UT App 328, ¶ 17, 243 P.3d
902 (declining to find prejudice where “the alleged hearsay
11. For the same reasons, we reject Nunes’s argument that Trial
Counsel provided ineffective assistance by failing to object to
Detective’s testimony that Victim told him “[t]hat she had been
raped.” Nunes asserts that this statement amounted to hearsay
testimony that “impermissibly bolstered [Victim’s] testimony
and enhanced her credibility,” making “the jury . . . more likely
to believe her story.” Assuming that Detective’s statement was
impermissible hearsay to which Trial Counsel should have
objected, we nevertheless fail to see how its admission
prejudiced Nunes given that the jury had already heard Victim’s
vivid description of the rape, see supra ¶¶ 6, 28–29, and
Detective’s comment about why he was investigating was not a
comment on Victim’s veracity.
20161070-CA 18 2020 UT App 145State v. Nunes
evidence was cumulative because it reiterated the essence of
testimony presented by the victims or other eyewitnesses”),
overruled on other grounds by State v. DeJesus, 2017 UT 22, 395 P.3d
111.
¶30 Nunes argues that Counselor’s retelling of Victim’s
allegations was especially prejudicial because Victim’s behavior
before and after the rape called her credibility into question in
the eyes of the jury. But Counselor did not make any statements
regarding Victim’s credibility; she simply relayed to the jury
what Victim had disclosed to her. To the extent that Victim’s
conduct before and after the rape cast doubt on her veracity,
Counselor’s retelling of Victim’s disclosures would have done
little to allay that doubt. More likely, the jury found Victim’s
explanations for her conduct believable. 12
¶31 Victim testified at length regarding why she acted as she
did after the rape. She testified about Nunes’s manipulative
12. This court’s prior caselaw has reiterated that “rape victims
display a diverse range of reactions to the harm they suffered,”
including, but not limited to, “shame, shock, resignation,
humiliation, fear, embarrassment, confusion, and/or disbelief.”
State v. Jok, 2019 UT App 138, ¶ 24, 449 P.3d 610, cert. granted, 456
P.3d 386 (Utah 2019). The jury appears to have understood that
despite the persistence of certain cultural myths, not all rape
victims will immediately report the attack or have no further
interaction with their rapists. See In re J.F.S., 803 P.2d 1254, 1259
(Utah Ct. App. 1990) (concluding that a victim’s “delayed
reporting is not inconsistent with her claim that she was raped”
and explaining that “[t]he embarrassment and shame that is
characteristic of rape victims prevents many victims from
reporting the incident”); see also Amy M. Buddie & Arthur G.
Miller, Beyond Rape Myths: A More Complex View of Perceptions of
Rape Victims, 45 Sex Roles 139, 140 (2001) (defining “rape myths”
as “prejudicial, stereotyped, or false beliefs about rape, rape
victims, and rapists” (quotation simplified)).
20161070-CA 19 2020 UT App 145State v. Nunes
behavior, how he “got inside [her] head,” and the “things that he
said that just made [her] feel like [she] had no choice but to . . .
go back to him.” She testified that she would tell him “all the
time” that she wanted to leave the relationship, but he would
threaten suicide or threaten to “hurt [her] dad” by “beat[ing]
him until his blood is running down the drain.” She explained
that she kept telling him that she loved him and “kept going
back to him because [she] was scared.” She testified that on the
night of the rape, she “hugged” him when he dropped her off at
home “not because [she] wanted to” but because she “was never
comfortable saying no,” and she later sent him “loving” text
messages because she “was scared of what would happen if
[she] didn’t.”
¶32 Victim also explained that she did not realize she had
been raped, because she “didn’t [know] what rape was like” or
that such an act could be committed by “someone that [she]
trusted.” Victim testified that in her mind, rape was “like a girl
walking down an alleyway in the middle of the night and being
kidnapped by some weirdo or some guy in a van saying there’s
candy . . . or being drugged by some college frat boy at a party.”
Although she may not have realized that Nunes’s conduct
amounted to rape, Victim’s parents testified that her mental
health changed dramatically the day after the rape and that she
was soon admitted to the hospital for suicidal ideation. Victim
also testified that she told Counselor that she felt “violated” and
was having “flashbacks” of the encounter, even before she
understood that she had been raped.
¶33 In short, we do not believe that Counselor’s repetition at
trial of the details of the rape, even with the addition of other
details, significantly altered the evidentiary picture in a way that
affected the outcome of the trial. Trial counsel made Victim’s
pre- and post-rape behavior the centerpiece of the defense at trial
in an attempt to cast doubt on Victim’s credibility. Yet the jury
believed Victim’s testimony that she did not consent to sexual
20161070-CA 20 2020 UT App 145State v. Nunes
intercourse with Nunes despite how she reacted after the fact. 13
Counselor’s retelling of the details of the rape that Victim had
already told the jury could not have tipped the scales in favor of
a guilty verdict if the jury did not believe the bulk of Victim’s
testimony in the first place. For if the jury had been inclined to
13. The dissent points out that the jury must have had issues
with Victim’s credibility because the jury acquitted Nunes of
sodomy. See infra ¶¶ 36, 50. While a split verdict may be
consistent with the notion that the jury was conflicted about the
evidence or had some doubt about a victim’s credibility, see State
v. Richardson, 2013 UT 50, ¶ 44, 308 P.3d 526, it may also just as
legitimately suggest compromise or some leniency in favor of
Nunes, see State v. Payne, No. 119,083, 2019 WL 4551642, at *9
(Kan. Ct. App. Sept. 20, 2019) (“But reading the tea leaves of a
jury’s mixed verdicts on multiple counts against a defendant is
fraught with inexactitude and guesstimating as a general
exercise, especially given the breadth of considerations that may
influence deliberations in any particular case.”); see also United
States v. Powell, 469 U.S. 57, 64–67 (1984) (recognizing that even
truly inconsistent verdicts “should not necessarily be interpreted
as a windfall to the Government at the defendant’s expense”
because “[i]t is equally possible that the jury, convinced of guilt,
properly reached its conclusion on the compound offense, and
then through mistake, compromise, or lenity, arrived at an
inconsistent conclusion on the lesser offense”). Moreover, a jury
verdict in which a defendant is convicted of rape but acquitted
of sodomy does not necessarily mean the jury had doubts about
the victim’s claim of rape. Aware that Victim was young and
inexperienced, the jury may well have chosen to believe Victim’s
account of rape, which claim was supported by some slight
physical evidence, while having a reasonable doubt about
whether she was sodomized in the absence of any sign of
trauma. See State v. Lopez, 892 P.2d 898, 902 (Idaho Ct. App. 1995)
(“A reasonable doubt as to one detail of [a] victim’s testimony
did not require [the jury] to disbelieve the rest of her testimony.”
(quotation simplified)).
20161070-CA 21 2020 UT App 145State v. Nunes
accept the defense theory that Victim’s post-rape reactions were
so inconsistent with rape that her later allegations must have
been fabricated, it would mean that Victim was also lying when
she spoke to Counselor. In that scenario, it is difficult to imagine
how Counselor’s recitation of Victim’s allegedly false story could
have influenced the jury’s verdict. Under the circumstances of
this case, there is no reasonable probability that Nunes would
have obtained a more favorable outcome at trial without
Counselor’s testimony.
CONCLUSION
¶34 Assuming that Trial Counsel rendered deficient
performance in failing to properly object to various testimonial
statements made by Mother, Counselor, and Detective, Nunes
has not shown that he was prejudiced by these alleged
deficiencies. Therefore, we affirm.
ORME, Judge (dissenting):
¶35 I respectfully dissent. I believe that Trial Counsel was
deficient in two respects: first, when Trial Counsel withdrew his
objection to hearsay testimony offered by Counselor and,
second, when he failed to object to bolstering testimony by
Mother. Each of these instances are prejudicial to Nunes in their
own right—and all the more so in combination—and they entitle
him to a new trial.
¶36 At the outset I make a preliminary comment. The jury in
this case had substantial doubts about Victim’s credibility. It did
not believe her claim that she was sodomized, and it acquitted
Nunes of that charge. There was no physical evidence
conclusively pointing to rape, no disinterested witness to the
crime, and no confession, see generally State v. Burnett, 2018 UT
App 80, ¶¶ 39–41, 427 P.3d 288, so the State’s case turned on
20161070-CA 22 2020 UT App 145State v. Nunes
Victim’s credibility. This suggests that essentially any evidence
that came in that tended to enhance Victim’s credibility
potentially tipped the balance in favor of the jury believing her
testimony. See id. ¶ 39 (“Our supreme court has indicated that a
split verdict can be an indication that the jury was conflicted
about the evidence and the competing version of events offered
by the victim and the defendant, and that [certain errors] may
very well have mattered.”) (quotation simplified). Understood
from this perspective, the improper evidence that came in in this
case was prejudicial.
I. Counselor’s Hearsay Testimony
¶37 Before the complained-of testimony by Counselor, the
groundwork was laid as to what Counselor was going to be
testifying about and in what capacity. At the beginning of
Counselor’s testimony, during a point when Counselor was
explaining her extensive training focused on adolescents, Trial
Counsel objected when he thought Counselor was going to start
vouching for Victim, arguing:
This is a fact witness, not an expert witness and
we’ve been spending a lot of time with her
credentials and she’s now trying to get into the
idea that adolescents work well with her and all
that in an attempt to vouch for [Victim’s]
credibility. She's supposed to be a fact witness, not
an expert.
The prosecutor responded, “I haven’t asked her an expert
question yet,” and a moment later stated that “[u]nder 704, as a
lay witness, she can testify about what’s happening in her
presence.” The prosecutor also informed Trial Counsel that
Counselor was “not going to say that [Victim] said anything.”
Later, during the substance of Counselor’s testimony, Trial
Counsel again objected, and the court stated that as “a lay
person” Counselor could continue testifying about her
observations of Victim.
20161070-CA 23 2020 UT App 145State v. Nunes
¶38 The complained-of hearsay testimony offered by
Counselor came in when the prosecutor asked Counselor what
Victim told her during the January 6, 2015 counseling session.
Trial Counsel properly lodged a hearsay objection. The
prosecutor then argued that the statements were admissible
because “[i]t’s the first statement that she made when [she was]
not under the influence to make anything up and . . . [Trial
Counsel] has specifically cross-examined [Victim] on the
different statements that she made” at the CJC, the preliminary
hearing, and at trial. In response, Trial Counsel affirmatively
withdrew the objection. Counselor proceeded to testify that
Victim told her that Nunes “had held her down, that she had
begged him to stop[;] [t]hat when she was screaming for him to
stop, he would do it harder”; and that Nunes “hit her” and “was
scratching her as hard as he could.” She also testified that Victim
told her “that she was begging and begging and begging and
begging for him to stop,” but Nunes would not stop and “was
chanting some sort of bizarre satanic crazy chant over and over”
and “had drawn a symbol on her back and told her that she was
part of his whorehouse now.”
¶39 My colleagues assume that Trial Counsel’s withdrawal of
his valid objection was deficient and decide this issue on the
basis of a lack of prejudice—essentially because Counselor’s
account of the alleged rape was cumulative of Victim’s
testimony. In my view, withdrawing the objection was indeed
objectively deficient because it fell below an objective standard
of reasonableness. And in the context of Victim’s questionable
credibility in the eyes of the jury, Counselor’s testimony was
clearly prejudicial because it impermissibly strengthened
Victim’s credibility in a case that turned on credibility.
¶40 Hearsay is an out-of-court statement offered “to prove the
truth of the matter asserted in the statement,” Utah R. Evid.
801(c), and is ordinarily inadmissible at trial, id. R. 802.
Statements that are not considered hearsay include those in
which
20161070-CA 24 2020 UT App 145State v. Nunes
[t]he declarant testifies and is subject to
cross-examination about a prior statement, and the
statement: . . . is inconsistent with the declarant’s
testimony or the declarant denies having made the
statement or has forgotten, or . . . is consistent with
the declarant’s testimony and is offered to rebut an
express or implied charge that the declarant
recently fabricated it or acted from a recent
improper influence or motive in so testifying.
Id. R. 801(d)(1)(A)–(B). However, prior consistent statements are
admissible “to prove the truth of the matter asserted,” id. R.
801(c), only if they “were made prior to the time a motive to
fabricate arose,” State v. Bujan, 2008 UT 47, ¶ 1, 190 P.3d 1255(emphasis added).
¶41 Prior consistent statements may also come in for
non-substantive rehabilitative purposes, meaning the statements
may be admitted not for the truth of the matter asserted in the
statement but to rehabilitate a witness’s credibility after it has
been attacked. See id. ¶ 9 (“We have recognized under common
law the admissibility of prior consistent statements for
rehabilitative purposes.”). See also State v. Sibert, 310 P.2d 388,
391 (Utah 1957) (“[W]here there has been an attempt to impeach
or discredit a witness, prior statements consistent with his
present testimony may be offered to offset the impeachment.”).
When prior consistent statements are admitted for rehabilitative
purposes, a limiting instruction should be “provided to the jury
that the testimony was only admitted for rehabilitative
purposes.” Bujan, 2008 UT 47, ¶ 9. Otherwise, “the testimony [is]
inappropriate hearsay and its admission improper.” Id.¶42 Rule 801(d)(1)(B) “permits the introduction of a
declarant’s consistent out-of-court statements to rebut a charge
of recent fabrication . . . only when those statements were made
before the charged recent fabrication.” Tome v. United States, 513
U.S. 150, 167 (1995). Here, any of Victim’s statements to
Counselor were inadmissible under the rule because, had Victim
20161070-CA 25 2020 UT App 145State v. Nunes
fabricated her account as Nunes asserts, her motive to do so
would have arisen soon after the alleged rape and before she
spoke to Counselor. Specifically, when Nunes continued to
discuss his other girlfriend with Victim, she responded, “I gave
everything away to you and you don’t even fucking care. [T]hat
kills me,” and “I lost my virginity to you last night and you
mean everything to me, but I won’t take you treating me like
that.” Because Victim’s motive to fabricate a rape claim arose the
day after the alleged rape—when she expressed jealousy toward
the other girlfriend and expressed remorse for losing her
virginity to Nunes—Counselor’s testimony about what Victim
told her concerning the alleged rape, having come after this
motive to fabricate arose, are inadmissible as prior consistent
statements. See Bujan, 2008 UT 47, ¶ 11.
¶43 The State appears to concede that the statements
were not admissible as substantive evidence on the
prior-consistent-statement rationale, but it argues that the
statements were nonetheless admissible as non-hearsay because
they amounted to “non-substantive rehabilitation.” But even if
the State had offered the statements for their non-substantive
rehabilitative value, which was not the explanation offered at
trial, no instruction was given to the jurors to inform them “that
the testimony was only admitted for rehabilitative purposes.”
Id. ¶ 9. Thus, the statements offered by Counselor were
“inappropriate hearsay and [their] admission improper.” Id.
Trial Counsel should have stood by his objection. Failing to do
so “fell below an objective standard of reasonableness.” State v.
Scott, 2020 UT 13, ¶ 31, 462 P.3d 350 (quotation simplified).
II. Mother’s Bolstering
¶44 My colleagues again assume, for purposes of their
analysis, that it was deficient for Trial Counsel not to object
to Mother’s vouching for her daughter’s truthfulness, and
they decide this issue on prejudice grounds. I conclude that it
was deficient performance and prejudicial in the posture of
this case.
20161070-CA 26 2020 UT App 145State v. Nunes
¶45 At trial, Mother testified that she attended a counseling
session with Victim and Counselor during which Victim
informed Mother about the alleged rape. The State asked
Mother, “When you were sitting there talking to [Victim] and
she was talking to you about what happened, did it appear that
she was faking?” Trial Counsel did not object to this question.
Mother responded, “Not at all, no.”
¶46 Rule 608(a) of the Utah Rules of Evidence “permits
testimony concerning a witness’s general character or reputation
for truthfulness but prohibits any testimony as to a witness’s
truthfulness on a particular occasion.” State v. Adams, 2000 UT
42, ¶ 11, 5 P.3d 642 (quotation simplified). Here, Mother’s
testimony that Victim was not faking “was not an opinion about
[Victim’s] general character for truthfulness, but a direct opinion
of [Victim’s] truthfulness on a particular occasion” and was
therefore inadmissible. See State v. Cegers, 2019 UT App 54, ¶ 24,
440 P.3d 924 (quotation simplified). This testimony is equivalent
to other testimony that has been held to impermissibly bolster
another witness’s credibility. See, e.g., Adams, 2000 UT 42,
¶¶ 19-20 (holding that a detective’s testimony that the victim did
not appear to be coached was impermissible bolstering); State v.
Rimmasch, 775 P.2d 388, 392–93 (Utah 1989) (holding that an
expert’s testimony that he believed the victim was telling the
truth was inadmissible bolstering), superseded by rule on other
grounds as stated in State v. Maestas, 2012 UT 46, 299 P.3d 892;
State v. Bragg, 2013 UT App 282, ¶ 31, 317 P.3d 452 (holding that
a detective’s testimony that the victim “appeared ‘to be
genuine’” during an interview “clearly violated rule 608”); State
v. Vail, 2002 UT App 176, ¶¶ 6, 15, 51 P.3d 1285 (holding that a
detective’s testimony that the victim seemed credible and
trustworthy during an interview was inadmissible bolstering);
State v. Stefaniak, 900 P.2d 1094, 1095–96 (Utah Ct. App. 1995)
(holding that a social worker’s testimony that the victim
“seemed to be quite candid” during an interview was
inadmissible). It is exclusively the factfinder’s role to determine
witness credibility, see State v. Workman, 852 P.2d 981, 984 (Utah
1993), and allowing Mother to vouch for the believability of her
20161070-CA 27 2020 UT App 145State v. Nunes
daughter “had the potential to usurp the fact-finding function of
[the] jury,” Stefaniak, 900 P.2d at 1096 (quotation simplified).
Objectively reasonable counsel would have objected to the
question that called for Mother’s take on Victim’s truthfulness,
would have moved to have the vouching testimony stricken if it
did come in, and would have asked for a limiting instruction if
the trial court did not strike the testimony outright.
III. Prejudice
¶47 Having concluded that Trial Counsel rendered deficient
performance in withdrawing his objection to Counselor’s
hearsay testimony and in failing to object to Mother’s
impermissible bolstering, I believe that either of these instances
of deficient performance, let alone the two combined, prejudiced
Nunes. Counsel’s deficient performance is prejudicial if “there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984). When we
determine that an attorney’s deficient performance was not
prejudicial, it is often because the evidence against a defendant is
so overwhelming that the jury would have rendered the same
result whether or not counsel had performed deficiently. See, e.g.,
State v. Lopez, 2019 UT App 11, ¶ 35, 438 P.3d 950 (holding that
due to the “overwhelming evidence . . . introduced at trial” there
was “no reasonable probability” that had the error not occurred,
the jury would have acquitted the defendant); State v. Courtney,
2017 UT App 172, ¶ 23, 424 P.3d 198 (holding that the
“evidence against [the defendant] was so overwhelmingly
strong” that any error at trial was harmless). And the opposite is
likewise true. See State v. King, 2010 UT App 396, ¶ 35, 248 P.3d
984 (“While we more readily find errors to be harmless when
confronted with overwhelming evidence of the defendant’s
guilt, we are more willing to reverse when a conviction is based
on comparatively thin evidence.”) (quotation simplified); State v.
Havatone, 2008 UT App 133, ¶ 17, 183 P.3d 257 (reversing a
conviction because the errors, “when combined and considered
with the weakness of the evidence,” warranted a new trial).
20161070-CA 28 2020 UT App 145State v. Nunes
¶48 The other evidence against Nunes was not so
overwhelming that I can say with confidence that he was not
prejudiced by admission of Counselor’s hearsay statements or
Mother’s impermissible bolstering of Victim’s credibility. Nunes
insisted the sexual encounter was consensual while Victim
claimed it was not, and the State presented no conclusive
physical evidence of rape. 14
¶49 There was evidence before the jury that might well have
caused it to question Victim’s account, even if doing so would
not be consistent with enlightened perspectives on the behavior
of rape victims. Before the alleged rape, Victim messaged Nunes
telling him that she was “excited to see [Nunes]” and that she
was bringing “shrooms and birth control.” When Victim arrived
at Nunes’s home, Nunes began to kiss Victim, and she kissed
him back and freely followed him to the bedroom. According to
Detective, Victim told him that Nunes asked if she wanted to
have sex, to which she responded affirmatively. While the jury
may well have hesitated to read too much into Victim’s pre-sex
behavior, mindful that Victim was free to change her plans and
withdraw her consent even after consensual sex began, it might
well have viewed her subsequent conduct as inconsistent with her
being a victim of rape. Especially in the absence of the
inadmissible testimony, the jury might have found it significant
that Victim voluntarily and affectionately interacted with Nunes
immediately after the alleged rape and for the subsequent month
with no hint that the sexual encounter was anything but
consensual. For example, after the alleged rape, on the way to
Victim’s home, she sat next to Nunes in the car and hugged and
kissed him goodnight when she got out of the car. Victim then
sent Nunes a message saying “thank you lovely” and that she
14. The State offered into evidence testimony about a single
blood spot on Nunes’s sheet that matched Victim’s DNA and a
healed cut to Victim’s hymen, but the State’s own expert testified
that the cut could have resulted from either rape or consensual
sex.
20161070-CA 29 2020 UT App 145State v. Nunes
loved him so much that she could not even “begin to put [it] into
words.” Moreover, after Nunes expressed his anger over the
other girlfriend cheating on him, Victim messaged him that he
had cheated on that girl, too, referring to his sexual encounter
with Victim. Victim also told Nunes, with my emphasis, “I gave
everything away to you and you don’t even fucking care. [T]hat
kills me,” and “I lost my virginity to you last night and you
mean everything to me, but I won’t take you treating me like
that.” 15 She then continued to express her love for Nunes for
another month before informing him that she no longer wanted
any contact with him and reporting the incident to Counselor
and nothing in our rules of evidence prohibited evidence of
Victim’s subsequent behavior from being presented to the jury
for its consideration. This evidence surely does not entitle Nunes
to an acquittal, and he could well be convicted again if accorded
the retrial he deserves, but because the remaining evidence
against him was far from overwhelming, it does suggest that,
without Counselor’s hearsay testimony recounting the alleged
rape and Mother’s vouching for Victim’s credibility, “a
reasonable probability exists that . . . [Nunes] would have
obtained a more favorable outcome.” State v. Parkinson, 2018 UT
App 62, ¶ 9, 427 P.3d 246 (quotation simplified).
¶50 As noted, this case turned on Victim’s credibility, about
which it is inarguable that the jury had doubts. It is entirely
possible that Counselor’s hearsay testimony, especially in
conjunction with Mother’s impermissible bolstering, tipped the
credibility balance toward Victim and away from Nunes. Their
maturity and, in the case of Counselor, professional training,
may well have made Counselor and Mother more credible
witnesses in the eyes of the jurors than Victim. And Counselor
did not merely repeat Victim’s claim that she had been raped,
which is problem enough in a case as close as this one. Instead,
Counselor included graphic details that Victim herself did not
15. The reference is clearly not to Nunes raping Victim but to
Nunes carrying on with his other girlfriend.
20161070-CA 30 2020 UT App 145State v. Nunes
testify to, such as Nunes hitting and “scratching her as hard as
he could” and raping her “harder” when she screamed for him
to stop. And due to the he-said-she-said nature of the evidence,
the testimony of a licensed clinical social worker that repeated
and embellished Victim’s account may well have counted for a
lot in the eyes of the jury. True, as the majority points out, most
of Counselor’s testimony was cumulative in a technical sense,
but in a close case like this one, hearing the same damning
evidence twice may well give it greater weight in the eyes of the
jury even if she had not added anything new. And the doubts
the jury had about Victim’s credibility might well have been
minimized during deliberations in view of the more polished
testimony presented by a trained professional.
¶51 And regarding Mother’s bolstering, our jurisprudence is
replete with cases that have found prejudice when improper
bolstering evidence was admitted, there was little or no physical
evidence of the crime, and the State’s case hinged on the
credibility of the victim. See State v. Cegers, 2019 UT App 54,
¶¶ 37–38, 440 P.3d 924 (holding that the defendant was
prejudiced from the admission of improper bolstering when “the
jury’s verdict hinged on its assessment of the victim’s
credibility”); State v. Burnett, 2018 UT App 80, ¶¶ 39, 41, 427 P.3d
288 (holding that “had counsel properly objected to [the expert’s]
testimony regarding credibility” in a case where “there was no
confession, no third-party eyewitnesses, and no physical
evidence” there was “a reasonable probability that [the
defendant] would have obtained a more favorable outcome at
trial”); State v. Stefaniak, 900 P.2d 1094, 1096 (Utah Ct. App. 1995)
(holding that testimony bolstering the victim’s credibility was
prejudicial as the case “hinged entirely on the credibility of the
victim”); State v. Iorg, 801 P.2d 938, 941–42 (Utah Ct. App. 1990)
(holding that testimony that “was clearly calculated to bolster
[the victim’s] believability” in a case that “hinged on credibility”
was prejudicial). Regardless of the fact that Victim was Mother’s
child, no witness is allowed to bolster another witness’s
believability and doing so is invariably prejudicial when the case
hinges on that witness’s credibility. And this case assuredly
20161070-CA 31 2020 UT App 145State v. Nunes
turned on Victim’s credibility as evidenced by Nunes’s acquittal
on the sodomy charge. There was no compelling physical
evidence of the alleged rape, “no confession, no third-party
eyewitnesses,” Burnett, 2018 UT App 80, ¶ 39, and the jury
clearly had issues with Victim’s credibility. Thus, there is a
reasonable probability that the jury would have found Victim
incredible without Mother’s bolstering and come to a more
favorable conclusion for Nunes at trial.
¶52 Without the hearsay testimony of Counselor and Mother’s
impermissible bolstering, there is at least a reasonable
probability of Nunes receiving a better result at trial, especially
in light of the sparse physical evidence and the case hinging
almost solely on Victim’s credibility. See State v. Thompson, 2014
UT App 14, ¶ 73, 318 P.3d 1221 (“[C]ourts are more likely to
reverse a jury verdict if the pivotal issue at trial was credibility of
the witnesses and the errors went to that central issue.”). See also
State v. Larrabee, 2013 UT 70, ¶¶ 35–37, 321 P.3d 1136 (holding
that counsel’s deficient performance prejudiced the defendant
when there was little physical evidence and the case hinged on
the victim’s credibility); Gregg v. State, 2012 UT 32, ¶¶ 26–30, 279
P.3d 396 (same); State v. Templin, 805 P.2d 182, 188 (Utah 1990)
(same); State v. Bujan, 2006 UT App 322, ¶¶ 30–32, 142 P.3d 581(same), aff’d, 2008 UT 47, 190 P.3d 1255. It is clear to me that
“there is a reasonable probability that, but for [Trial Counsel’s]
unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 688, 694 (1984).
I would therefore vacate Nunes’s rape conviction and remand
for a new trial on that charge.
20161070-CA 32 2020 UT App 145