State v. Lopez

2019 UT App 11THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ANDRE GUSTAVO HENRY LOPEZ,
Appellant.
Opinion
No. 20150052-CA
Filed January 10, 2019
Fourth District Court, Provo Department
The Honorable Claudia Laycock
No. 131403285
Douglas J. Thompson and Margaret P. Lindsay,
Attorneys for Appellant
Sean D. Reyes and John J. Nielsen,
Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES KATE APPLEBY and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Defendant Andre Gustavo Henry Lopez appeals his
convictions for rape, object rape, and assault. Defendant argues
that he received constitutionally ineffective assistance of counsel
and that the cumulative effect of counsel’s errors deprived him
of a fair trial. We reject each of Defendant’s arguments and
affirm.
State v. Lopez
BACKGROUND 1
¶2 Defendant and his girlfriend (Girlfriend) lived together.
One evening, they attended a wedding reception where they
both consumed alcohol. Defendant observed Girlfriend speaking
to other men and became agitated. After leaving with Girlfriend,
he yelled at her “the whole car drive home,” using a variety of
sexual and racial invectives and challenging Girlfriend’s sexual
self‑restraint.
¶3 Upon arriving at their house, Defendant’s tirade
continued, prompting a neighbor (Neighbor) to call the police
because of the yelling and screaming. A police officer responded
to the house soon after and spoke only to Girlfriend. Girlfriend
said everything was fine and told the officer to leave because his
presence was “going to make this worse.”
¶4 After the officer left, Defendant resumed insulting
Girlfriend and insisted that she have sex with him because she
needed to “take care of his needs.” Defendant tried to kiss
Girlfriend, but she “told him no” and pushed him away with her
hand. This further upset Defendant, so he threatened he was
“gonna take it” if she refused to have sex with him. Girlfriend
curled up in the fetal position on the couch and Defendant put
his hand on her neck and shoved her down. Then he put his
fingers in her vagina and her anus. Girlfriend told Defendant he
was hurting her and told him to stop.
¶5 Defendant then yanked Girlfriend’s sweatpants hard
enough to pull her off the couch, ripping the pants in the
process. Girlfriend pleaded with him to go to bed and “just be
1. Following a criminal conviction by a jury, we recite the facts in
the light most favorable to the jury’s verdict. State v. Pham, 2015
UT App 233, ¶ 2, 359 P.3d 1284.
20150052-CA 2 2019 UT App 11State v. Lopez
done.” Defendant responded by dragging Girlfriend by her
ankle to the front door, demanding that she leave if she would
not have sex with him. Girlfriend made her way back to the
couch. At this point, Girlfriend succumbed to Defendant’s
threats and agreed to go upstairs to the bedroom with him. On
the way upstairs, Defendant smacked Girlfriend’s legs, hit her
head, and pulled her hair.
¶6 Once upstairs, Defendant removed his pants and
demanded oral sex, again disparaging Girlfriend. Girlfriend
said, “Please no,” and she asked him to “just go to bed.”
According to Girlfriend, “that’s when he took it.” Though
Girlfriend tried to keep her legs closed and told Defendant he
was hurting her, Defendant raped Girlfriend twice.
¶7 The next morning, Defendant apologized, telling
Girlfriend that he “didn’t know [he] did that to [her]” and that
he was “so sorry.” Defendant explained that he “blacked out”
and did not remember anything that happened. Two days after
the incident, Defendant sent a text message to Girlfriend stating
he “really fucked up [their] life,” and wondered “[w]hat
charges” she would be “pressing on [him].” Girlfriend reported
the incident to the police later that morning and underwent a
sexual assault medical examination that same day.
¶8 The physician identified extensive bruising on
Girlfriend’s arms, legs, neck, back, and lower abdomen. The
physician could not pinpoint the age of the bruises, but opined
that they “seemed very similar” and were consistent with
Girlfriend’s account. The physician also found vaginal injury,
consistent with Girlfriend’s account of the rape, but
acknowledged that the injury was also consistent with
consensual sex.
¶9 Meanwhile, Defendant, apparently in a panic, spoke to
Neighbor—the one who initially called the police—explaining
20150052-CA 3 2019 UT App 11State v. Lopez
what had happened. Defendant “sounded stressed out” and
“was pacing back and forth” while he spoke. Defendant
explained that he ripped Girlfriend’s pants off and forced her to
kiss him. He also said he was nervous that Girlfriend would
accuse him of attempted rape because he forced her to kiss him
during sex, and because she had recovered her pants from the
garbage. After hearing Defendant’s account, Neighbor said,
“[T]hat’s not makeup sex. That’s not attempted rape in my mind.
That is rape, you know.” Neighbor’s girlfriend arrived during
the conversation, and Defendant told her the same story.
¶10 The State charged Defendant with rape, two counts of
object rape, and assault. Defendant testified at trial,
corroborating some of Girlfriend’s account of the incident. He
acknowledged that he was upset and jealous because Girlfriend
spoke to other men at the wedding reception. He also confirmed
that he called Girlfriend names, tried to kiss her and was
rebuffed, tried to kick her out of the house, and pulled her off
the couch by yanking her pants.
¶11 Diverging from Girlfriend’s account, Defendant testified
that Girlfriend joined him upstairs after a brief separation
following their argument and altercation. There they “talked for
a minute about what happened.” Then they kissed, Defendant
explained, and he and Girlfriend had consensual sex twice.
¶12 The jury acquitted Defendant of one of the object rape
counts, but it convicted him of one count each of rape, object
rape, and assault. Defendant appeals his convictions.
¶13 Defendant asserts on appeal, among other things, that his
trial counsel was constitutionally ineffective for failing to
investigate a car accident that Girlfriend allegedly “was involved
in on the day she reported the offenses in this case.” He further
contends that trial counsel was ineffective for failing to “consult
with a medical expert regarding the medical evidence related to
20150052-CA 4 2019 UT App 11State v. Lopez
[Girlfriend’s] injuries.” Following initial briefing and oral
argument in this court, we remanded to the district court
pursuant to rule 23B of the Utah Rules of Appellate Procedure in
order to develop evidence in the record. See State v. Heywood,
2015 UT App 191, ¶ 39, 357 P.3d 565 (explaining that “[t]he
purpose of a rule 23B remand is to develop new evidence in the
record, without which a defendant cannot bring his ineffective
assistance of counsel claim on appeal” (quotation simplified)).
Following three evidentiary hearings, the district court issued
findings on this new evidence.
Defense Theory of the Case and the Car Accident
¶14 Defendant admitted to neighbors, police, and his
attorneys that he engaged in a physical altercation with
Girlfriend on the date of the incident, resulting in injury to both
of them. 2 Because Defendant also acknowledged that he and
Girlfriend had engaged in sexual intercourse on the night of the
altercation, trial counsel chose to focus on the defense theory
that, although Defendant injured Girlfriend, the sex was
consensual.
¶15 Defendant explained to defense counsel prior to trial that
he and Girlfriend had sex on the night of the incident, about an
hour and a half to two hours after the physical altercation.
Defense counsel then prepared a defense theory that, although
2. We diverge here from an otherwise largely chronological
description of the facts. We do so because the facts that follow
were not necessarily considered by the jury, whose verdict helps
inform our recitation of the facts. See supra note 1. We instead
recite the facts here as found by the district court following
evidentiary hearings held on temporary remand pursuant to rule
23B of the Utah Rules of Appellate Procedure. See State v.
Patterson, 2013 UT App 11, ¶ 10, 294 P.3d 662.
20150052-CA 5 2019 UT App 11State v. Lopez
Defendant and Girlfriend engaged in a physical fight, the sex
that followed was consensual. This incident, counsel would
contend, mirrored a pattern in the couple’s relationship—
physical altercations followed by “make-up sex.” Defendant
testified at trial, however, that only about fifteen minutes
separated the physical altercation downstairs and the sex in the
bedroom. Upon hearing his client on the witness stand state that
only fifteen minutes separated the altercation and sex—rather
than an hour and a half to two hours—defense counsel believed
“the whole defense theory fell apart.” Specifically, counsel
thought the jury would not believe that consensual “make-up
sex” occurred so soon after a violent, physical attack.
¶16 Of additional concern to defense counsel in defending his
client, shortly before trial Defendant “completely contradicted”
his account of the incident. In contrast to the story he told
counsel initially, Defendant later told counsel that he did not get
into a physical altercation with Girlfriend and did not cause any
of her injuries. Instead, he asserted that all of Girlfriend’s injuries
“resulted exclusively from her car accident.” Although counsel
already knew about a car accident involving Girlfriend, this
particular revelation occurred after expiration of the pretrial
deadline to identify witnesses. Frustrated, defense counsel
declined to alter the defense strategy planned for trial and did
not investigate the car accident further. Nevertheless, at trial,
defense counsel asked Girlfriend about the accident in an effort
to establish that some of the injuries documented in her medical
examination could have resulted from the collision. In response,
Girlfriend testified that the accident occurred ten days after her
sexual assault examination.
¶17 Defendant then told defense counsel that insurance claim
documentation would contradict Girlfriend’s statement about
the date of the accident. Before the close of trial, defense counsel
received the insurance claim documentation, which appeared to
corroborate Defendant’s claim regarding the actual date of
20150052-CA 6 2019 UT App 11State v. Lopez
Girlfriend’s accident. From these records, counsel deduced that
the accident occurred on the morning of—and prior to—
Girlfriend’s examination by the physician and not ten days later
as she had testified.
¶18 Counsel recalled Girlfriend as a witness and once again
asked about the date of the accident, allowing her to first refresh
her memory by reviewing the insurance claim documentation.
For the second time, Girlfriend asserted that the accident
occurred ten days after she was examined by the physician. But
defense counsel could not impeach her testimony with extrinsic
evidence because he could not lay sufficient foundation for the
admission of the insurance claim documentation. Consequently,
defense counsel abandoned this line of questioning.
¶19 Girlfriend’s testimony remained consistent at the post-
trial evidentiary hearings, where she again testified that the
accident occurred ten days after her report of the rape and
physical examination. The district court, having considered “all
the evidence, as well as the demeanor and credibility of the
witnesses” regarding the date of the accident, determined that
the accident occurred on the later date—ten days after
Girlfriend’s medical examination. Addressing contrary evidence,
the court determined that Girlfriend “misreported the
accident . . . as having occurred” on the date of the rape report
and medical examination.
Medical Expert
¶20 Through discovery, Defense counsel received and
reviewed the medical examiner’s sexual assault examination
report and used it to prepare for trial. But he did not review any
other medical evidence or pursue records from the medical clinic
where the examination was performed. Counsel also did not
discuss with Defendant the benefits and drawbacks of retaining
a defense medical expert for trial. Defense counsel briefly
20150052-CA 7 2019 UT App 11State v. Lopez
consulted with a nurse practitioner about the report, but he did
not ask the nurse practitioner to review the report or analyze any
photographs.
¶21 Based on the consultation and defense counsel’s
experience, counsel entered a stipulation with the prosecution
that the State’s medical expert would testify that Girlfriend’s
reported injuries were consistent with consensual sex.
ISSUES AND STANDARDS OF REVIEW
¶22 Defendant raises four claims on appeal. With regard to
the first three claims, Defendant contends that he received
constitutionally ineffective assistance of counsel for trial
counsel’s failure to (1) object to jury instructions, (2) investigate
Girlfriend’s car accident, and (3) retain a medical expert. “When
a claim of ineffective assistance of counsel is raised for the first
time on appeal, there is no lower court ruling to review and we
must decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” Layton City v. Carr, 2014
UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified). Defendant
also contends that the cumulative effect of his counsel’s
ineffective performance preparing for and at trial, if not
prejudicial individually, cumulatively denied him a fair trial.
“We will reverse a jury verdict or sentence only if the cumulative
effect of the several errors undermines our confidence that a fair
trial was had.” State v. Martinez-Castellanos, 2018 UT 46, ¶ 39, 428
P.3d 1038 (quotation simplified).
ANALYSIS
I. Ineffective Assistance of Counsel
¶23 To establish ineffective assistance of counsel, Defendant
“must show: (1) that counsel’s performance was objectively
20150052-CA 8 2019 UT App 11State v. Lopez
deficient, and (2) a reasonable probability exists that but for the
deficient conduct defendant would have obtained a more
favorable outcome at trial.” State v. Clark, 2004 UT 25, ¶ 6, 89
P.3d 162; see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
To satisfy the first element, Defendant “must overcome the
strong presumption that his trial counsel rendered adequate
assistance by persuading the court that there was no conceivable
tactical basis for counsel’s actions.” Clark, 2004 UT 25, ¶ 6
(quotation simplified). With regard to the second element,
Defendant “must demonstrate that any deficiencies in counsel’s
performance were prejudicial to the defense.” State v. Lantz, 2018
UT App 70, ¶ 7, 424 P.3d 1094 (quotation simplified). “A
defendant’s inability to establish either element defeats a claim
for ineffective assistance of counsel.” State v. Reid, 2018 UT App
146, ¶ 19, 427 P.3d 1261.
A. Failure to Object to Jury Instructions
¶24 Defendant first argues that counsel performed deficiently
by failing to object to two jury instructions describing the
elements for rape and object rape. Specifically, he contends that
trial counsel should have objected because the instructions
“impl[y] there is no mens rea component of the consent
element.” We first consider the rape jury instruction then review
the object rape instruction.
¶25 Rape is defined as having “sexual intercourse with
another person without the victim’s consent.” Utah Code Ann.
§ 76-5-402(1) (LexisNexis Supp. 2018). 3 Regarding the applicable
mental state, “a person is not guilty of an offense unless the
person’s conduct is prohibited by law; and . . . the person acts
3. Because the language of the statute has not changed, we cite
the most recent version for convenience.
20150052-CA 9 2019 UT App 11State v. Lopez
intentionally, knowingly, [or] recklessly.” Id. § 76-2-101(1)
(LexisNexis 2012).
¶26 In State v. Barela, 2015 UT 22, 349 P.3d 676, our supreme
court determined that a jury instruction on rape was in error and
that “reasonable trial counsel should have objected to it.” Id.¶¶ 26–27. The challenged instruction there “identified four
elements of rape: 1. The defendant . . . , 2. Intentionally or
knowingly; 3. Had sexual intercourse with [the victim]; 4. That
said act of intercourse was without the consent of [the victim].”
Id. ¶ 25 (internal quotation marks omitted). The supreme court
concluded that “the instruction implied that the mens rea
requirement (‘intentionally or knowingly’) applied only to the act
of sexual intercourse, and not to [the victim’s] nonconsent.” Id.
¶ 26. The same cannot be said of the instruction provided here.
¶27 To convict Defendant of rape, the instruction here
required the jury to find:
1. That the defendant . . . ;
...
4. Did intentionally, knowingly, or
recklessly:
5. Have sexual intercourse with another
6. Without that person’s consent; . . .
This instruction applies the mens rea element (intentionally,
knowingly, or recklessly) to both the act of sexual intercourse
and the lack of consent. Although appearing separately on a
numerical list, the “intentionally, knowingly, or recklessly” mens
rea element is followed by a colon and modifies elements five
(sexual intercourse) and six (lack of consent). Consequently, this
instruction does not suffer from the same infirmity as the Barela
20150052-CA 10 2019 UT App 11State v. Lopez
instruction. Thus, counsel’s failure to object to this instruction
did not constitute deficient performance. And because counsel
did not perform deficiently, we do not analyze whether the
failure to object was prejudicial. See State v. Reid, 2018 UT App
146, ¶ 19, 427 P.3d 1261.
¶28 Unlike the rape instruction, however, the object rape
instruction does not contain a mental state requirement for
nonconsent. A person commits object rape when, “without the
victim’s consent, [the person] causes the penetration, however
slight, of the genital or anal opening of another person . . . by any
foreign object, substance, instrument, or device, including a part
of the human body other than the mouth or genitals.” Utah Code
Ann. § 76-5-402.2(1). A person is not guilty of this offense unless
that person acts intentionally, knowingly, or recklessly with
respect to each element. Id. § 76‑2‑101(1) (LexisNexis 2012).
Additionally, object rape requires that the person act “with
intent to cause substantial emotional or bodily pain to the victim
or with the intent to arouse or gratify the sexual desire of any
person.” Id. § 76‑5‑402.2(1) (Supp. 2018).
¶29 Here, to convict Defendant of object rape the instruction
required the jury to find:
1. That the defendant . . . ;
...
4. Did cause the penetration, however slight,
of the genital or anal opening of another
person . . . ;
5. By any foreign object, substance,
instrument, or device, including a part of the
human body other than the mouth or
genitals;
20150052-CA 11 2019 UT App 11State v. Lopez
6. Without consent of the victim;
7. With the intent to:
a. Arouse or gratify the sexual desire
of any person; OR
b. Cause substantial emotional or
physical pain to the victim; . . .
¶30 This instruction explains the necessary specific intent, but
does not provide the general mens rea for object rape and fails to
apply that required mental state to the element of nonconsent.
“[O]ur criminal code requires proof of mens rea for each element
of a non-strict liability crime,” including the element of
nonconsent. See Barela, 2015 UT 22, ¶ 26. Like the jury instruction
in Barela, the object rape instruction here “was in error” and
“reasonable trial counsel should have objected to it.” Id. ¶ 27. We
can formulate no reasonable trial strategy that might include the
lack of an objection to this object rape instruction. Holding the
State to its burden to prove beyond a reasonable doubt
Defendant’s general mental state can only benefit Defendant. See
id.
¶31 However, to establish ineffective assistance of counsel,
Defendant must also demonstrate prejudice resulting from
counsel’s error. In other words, Defendant must show “a
reasonable probability that, but for his counsel’s unprofessional
errors, the result of the proceeding would have been different.”
State v. Arguelles, 921 P.2d 439, 441 (Utah 1996) (quotation
simplified). Defendant has not made such a showing here.
¶32 “The essence of consent is that it is given out of free will,
and determining whether someone has truly consented requires
close attention to a wide range of contextual elements, including
verbal and nonverbal cues.” State v. Reigelsperger, 2017 UT App
20150052-CA 12 2019 UT App 11State v. Lopez
101, ¶ 81, 400 P.3d 1127 (quotation simplified). Here, the jury
heard Girlfriend’s account of Defendant pulling her off the
couch and ripping her pants in the process. Girlfriend testified
that Defendant put his fingers in her vagina and anus; she told
him to stop and that he was hurting her. Defendant next tried to
eject Girlfriend from the house. The record reveals no
evidentiary basis on which a jury could find that Girlfriend
consented to the digital penetration. More particularly, the
evidence presented would not reasonably support the jury
concluding that Defendant did not act at least recklessly with
regard to Girlfriend’s lack of consent.
¶33 At trial, Defendant never claimed that these acts were
done with Girlfriend’s consent or based on the mistaken belief
that she had consented. Instead, Defendant’s testimony at trial
simply implied that no object rape occurred. He testified that he
grabbed Girlfriend’s pants and yanked with “a lot of force,”
pulling her off the couch and ripping her pants. He explained,
“[Girlfriend] jumped up and grabbed [Defendant] by the back of
[his] head,” but he “[didn’t] know if she was trying to pull [him]
down or fight.” He then tried to pull Girlfriend out of the house,
and afterward he went upstairs to the bedroom.
¶34 The jury ultimately convicted Defendant of object rape. 4
The record reflects no testimony or evidence that would suggest
that Defendant believed Girlfriend had consented to Defendant
putting his fingers in her vagina and anus. Rather, the record is
replete with Girlfriend’s statements: “[S]top,” “You’re hurting
me,” “Please don’t do that anymore,” and “Just go to bed.”
These explicit statements are in addition to other cues of
4. The jury acquitted Defendant of one of the two object rape
counts. The record does not reveal the jury’s rationale, but it
appears as though the jury may not have fully credited
Girlfriend’s testimony.
20150052-CA 13 2019 UT App 11State v. Lopez
nonconsent. Girlfriend lay in the fetal position on the couch with
Defendant’s hand on her neck pushing her down. Moreover,
Defendant himself acknowledged he tried to force Girlfriend out
of the house by dragging her to the door, and he disparaged her
throughout the evening. Further supporting the absence of any
consent on Girlfriend’s part, Defendant apologized via text
messages after the rape and object rape. He said he was “so
sorry” for what he had done though suggesting that he had
“blacked out.” Perhaps anticipating consequences for his actions,
Defendant also asked Girlfriend what criminal charges she
would be pursuing against him.
¶35 We conclude that overwhelming evidence was introduced
at trial showing Girlfriend did not consent to the digital
penetration. As a result, there is no reasonable probability that—
had the jury been properly instructed as to the applicable
general mens rea—it would have found that Defendant did not
act intentionally, knowingly, or recklessly as to Girlfriend’s
consent. See id. ¶ 79. Accordingly, Defendant has not established
trial counsel’s ineffectiveness for failing to object to the jury
instructions.
B. Failure to Investigate the Car Accident
¶36 Defendant next asserts that he received ineffective
assistance of counsel as a result of trial counsel’s failure to
investigate Girlfriend’s car accident. Defendant argues he
could have presented evidence at trial showing the
accident occurred shortly before the medical examination.
This evidence, he contends, suggests an alternative source of
her bumps, bruises, and lacerations. Because we conclude
that Defendant has not established prejudice with respect to
trial counsel’s failure to investigate the car accident, Defendant
cannot establish ineffective assistance of counsel. See State v.
Lantz, 2018 UT App 70, ¶ 7, 424 P.3d 1094 (explaining
that ineffective assistance of counsel requires a defendant to
20150052-CA 14 2019 UT App 11State v. Lopez
“demonstrate that any deficiencies in counsel’s performance
were prejudicial to the defense” (quotation simplified)).
¶37 To establish prejudice, Defendant “must show that 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). Here,
Defendant must show a reasonable probability that, had the jury
heard conflicting testimony as to the date of the car accident, the
outcome would have been different. “A reasonable probability is
a probability sufficient to undermine confidence in the
outcome.” Id. In other words, “[i]t is not enough for the
defendant to show that the errors had some conceivable effect on
the outcome of the proceeding.” Id. at 693.
¶38 At trial, the jury heard limited evidence about the car
accident. Girlfriend testified that she was involved in a
collision ten days after she reported the rape and received a
medical examination. Based on this testimony, the photos
of Girlfriend’s injuries documented during that exam were
taken before the accident and therefore could not have
shown any accident‑related injuries. Defendant contends that he
should have been able to present conflicting evidence as to
the date of the accident to prove that it occurred on the
morning before the report and medical examination.
Defendant argues that involvement in an automobile accident
would suggest that at least some of Girlfriend’s injuries were
the result of the collision. Defendant contends that evidence of
the date of the accident would establish “the argument
and assault were not as serious as the extent of [Girlfriend’s]
injuries showed, and that [Defendant’s] account of make-up
sex was more reasonable.” We are not persuaded that there is
a reasonable probability that presenting this evidence to the
jury would have made a difference.
20150052-CA 15 2019 UT App 11State v. Lopez
¶39 Defendant presented a theory that the charged incidents
were nothing more than a common pattern in the relationship.
He and Girlfriend would argue and fight, Girlfriend would leave
or move out for some period of time, and the two would
eventually reconcile and engage in “make-up sex.” Defendant
explained this pattern, and Girlfriend acknowledged this
happened at least on one other occasion. Consistent with this
theory, Defendant testified that he and Girlfriend fought and
grappled at the house following the wedding reception. At one
point, he “forcibly just grabbed [Girlfriend] as hard as [he] could
. . . by her [sweatpants] and her legs and . . . was trying to pull
her off the couch to pull her out of the house.” Asked whether he
pulled Girlfriend with enough force to cause injury, Defendant
said, “Yes[.]” Defendant then described Girlfriend grabbing the
back of his head and ears, trying to pull him down or fight with
him. At that point, he “bust her hands off” him as he “[tried] to
get her hands under control.”
¶40 Had the jury heard conflicting testimony as to the date of
the car accident, it reasonably would have reached the same
conclusion regarding Defendant’s convictions. Even if the car
accident provided an alternative explanation for some of
Girlfriend’s bumps and bruises, there remained no dispute that
Defendant and Girlfriend engaged in a physical altercation.
During that altercation, Defendant yanked Girlfriend’s
sweatpants, causing her to fall to the floor. And he admitted that
he dragged her across the floor in an attempt to eject her from
the house. Moreover, by Defendant’s account, Girlfriend
grabbed the back of his head and ears leading to his vigorous
effort to break free and gain control of her hands. All of these
undisputed exchanges may have caused Girlfriend’s bumps,
bruises, and lacerations. Indeed, Defendant and Girlfriend each
testified that they were injured in the fight. Defendant therefore
concedes that evidence of the disputed accident dates would
provide only an “alternative explanation for at least some of
20150052-CA 16 2019 UT App 11State v. Lopez
[Girlfriend’s] injuries.” (Emphasis added.) We are unpersuaded
that the jury reasonably would have concluded that because
Defendant caused only some—but not all—of Girlfriend’s
injuries, she consented to sexual intercourse approximately
fifteen minutes later.
¶41 Defendant also argues that he should have been allowed
to impeach Girlfriend’s credibility by presenting evidence
disputing the date of the accident. To this end, he asserts that
defense counsel was ineffective for failing to develop the
impeachment evidence prior to and during trial. On the record
developed by the district court on temporary remand, it would
appear Girlfriend either misrepresented the date of the collision
on the witness stand at trial or she misrepresented the date to the
insurance company. With this information at trial, Defendant
certainly could have suggested that Girlfriend lacked credibility
generally. As a result, he suggests, Girlfriend’s testimony
regarding lack of consent to sex could have been rendered less
believable. Though conceivable, we are not persuaded
Defendant has established a reasonable probability of a different
result “sufficient to undermine confidence in the outcome.” See
Strickland, 466 U.S. at 694.
¶42 Here, the jury considered substantial evidence from both
Girlfriend and Defendant confirming the following: an extended
argument; name-calling; a violent physical altercation causing
injuries; Defendant attempting to force Girlfriend to kiss him,
and Girlfriend rebuffing that advance; Defendant attempting to
eject Girlfriend from the home; and sexual intercourse following
a fifteen-minute intermission. The day after the incident,
Defendant sent text messages to Girlfriend explaining he “didn’t
know [he] did that to [her]” and that he was “so sorry.” He
further stated he “really fucked up [their] life,” and asked
“[w]hat charges” she would be “pressing on [him].” None of this
evidence was substantially disputed at trial.
20150052-CA 17 2019 UT App 11State v. Lopez
¶43 The jury also heard testimony from Defendant’s neighbor.
Neighbor explained that, two days after the incident, Defendant
told him “he thought he was [in] trouble, that [Girlfriend] was
going to try to accuse him of attempted rape.” Defendant
described details of the incident to Neighbor, including the
fighting and name-calling, Defendant holding Girlfriend down
to kiss her, as well as the subsequent “make-up sex.” Defendant,
appearing anxious and scared, told Neighbor that Girlfriend
took the ripped pants out of the garbage. And Defendant
declared that he was in “big trouble,” indeed in “deep shit.”
¶44 With regard to the disputed evidence, Girlfriend testified
that Defendant had sex with her—“that [she] didn’t want”—
while she tried to keep her legs closed, told him to stop and told
him that it hurt. Defendant testified, however, that the sex was
consensual. It is certainly conceivable the jury could have
disbelieved Girlfriend’s account as to consent because she
misstated the date of her car accident to an insurance carrier. But
given the bulk of other evidence supporting Girlfriend’s version
of events and discrediting Defendant’s account, the jury was also
provided with ample evidence supporting Defendant’s
conviction, making a different outcome at trial highly unlikely.
Consequently, our confidence in the jury’s verdict is not
undermined by trial counsel’s failure to impeach Girlfriend’s
credibility with the insurance report.
C. Failure to Retain a Medical Expert
¶45 Defendant next argues that his trial counsel should have
presented testimony of a medical expert at trial to contradict the
State’s medical expert. He asserts that such testimony would
have benefitted his defense in two ways. First, a medical expert
testifying for the defense could have rebutted the State’s medical
expert testimony by opining that Girlfriend’s injuries were not as
severe as alleged by the State. Second, an expert could have
20150052-CA 18 2019 UT App 11State v. Lopez
opined that some of Girlfriend’s injuries may have resulted from
a car accident.
¶46 In preparation for trial, Defendant’s trial counsel
reviewed the sexual assault examination report provided by the
State in discovery, but counsel did not consult with a medical
expert on the report or review other available medical
examination evidence. Ultimately, counsel elected not to retain a
medical expert for trial, opting instead for a stipulation with the
State limiting the scope of the State’s expert’s testimony. 5 While
preparing to cross-examine the State’s expert, counsel informally
consulted with a nurse practitioner who had experience as a
sexual assault nurse examiner. Counsel asked questions of the
nurse but he did not provide the examination report or any
photos for the nurse’s review. At trial, the State’s expert testified
that Girlfriend’s genital injuries were consistent with sexual
intercourse, whether consensual or nonconsensual.
¶47 During evidentiary hearings held on temporary remand,
the district court heard testimony from a different medical
expert retained by Defendant for the purpose of determining
whether trial counsel performed deficiently. This medical expert
testified consistently with the State’s expert to a great extent, but
contradicted some of the State’s expert’s trial testimony. We do
not recount the specific findings here, because we conclude that
trial counsel was not objectively deficient for electing to limit the
scope of the State’s expert testimony rather than retain his own
medical expert for trial.
¶48 Although disputing some details, Defendant
acknowledged at trial that he and Girlfriend physically fought
5. The record does not reflect the details of the stipulation, except
that the State’s expert would concede that Girlfriend’s genital
injuries were consistent with consensual sexual intercourse.
20150052-CA 19 2019 UT App 11State v. Lopez
on the night of the wedding reception and that their altercation
injured each of them. Defendant further conceded that he and
Girlfriend twice engaged in sexual intercourse that night. Much
of the physical evidence, then, was subsumed in the defense
theory that this was simply part of their relationship pattern—a
fight, a break, then “make-up sex.”
¶49 Under these circumstances, an independent medical
expert would have been redundant, confirming Girlfriend’s
injury results already described by the State’s expert. This
testimony would also highlight, again, the presence of many of
the bumps, bruises, and abrasions that Defendant did not
dispute he may have caused. Additionally, through stipulation,
defense counsel secured a limit to the scope and impact of the
State’s expert. See supra ¶ 46. Because the decision not to retain a
medical expert “might be considered sound trial strategy,”
Defendant has not demonstrated that his counsel’s performance
was objectively deficient. See State v. Dunn, 850 P.2d 1201, 1225
(Utah 1993).
II. Cumulative Error
¶50 Finally, Defendant asserts that the cumulative effect of the
alleged errors undermines confidence in the jury’s verdict.
Considering all alleged errors and any we assume may have
occurred, we “reverse only if the cumulative effect of the several
errors undermines our confidence” that Defendant has received
a fair trial. State v. King, 2010 UT App 396, ¶ 17, 248 P.3d 984(quotation simplified). To reverse a verdict because of
cumulative error, we must determine that “(1) an error occurred,
(2) the error, standing alone, has a conceivable potential for
harm, and (3) the cumulative effect of all the potentially harmful
errors undermines [our] confidence in the outcome.” State v.
Martinez-Castellanos, 2018 UT 46, ¶ 42, 428 P.3d 1038. “But if the
claims are found on appeal to not constitute error, or the errors
are found to be so minor as to result in no harm, the doctrine
20150052-CA 20 2019 UT App 11State v. Lopez
will not be applied.” State v. Maestas, 2012 UT 46, ¶ 363, 299 P.3d
892 (quotation simplified).
¶51 Here, Defendant has established that counsel erred by
failing to object to the object rape jury instruction, which omitted
the required general mental state. Because we have identified
only one error, there are no others to accumulate. Consequently,
the cumulative error doctrine does not apply. State v. Beverly,
2018 UT 60, ¶¶ 80–81 (stating that the cumulative error doctrine
has no application when only one error is demonstrated or
assumed on appeal); see also Conocophillips Co. v. Utah Dep’t of
Transp., 2017 UT App 68, ¶ 31, 397 P.3d 772 (same).
CONCLUSION
¶52 We conclude that Defendant has not established that he
received ineffective assistance of counsel. Trial counsel did not
render deficient performance by not objecting to the rape jury
instruction and by not retaining an independent medical expert.
Defendant has failed to establish that he was prejudiced by
counsel’s failure to object to the object rape jury instruction and
failure to investigate Girlfriend’s car accident. We also conclude
that the cumulative error doctrine does not apply. Accordingly,
we affirm.
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