State v. Jok

449 P.3d 610

STATE of Utah, Appellee,

v.John Atem JOK, Appellant.

No. 20180138-CA

Court of Appeals of Utah.

Filed August 15, 2019

Andrea J. Garland, Attorney for Appellant

Sean D. Reyes, Salt Lake City, and Jonathan S. Bauer, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Ryan M. Harris and Diana Hagen concurred.

Opinion

MORTENSEN, Judge:

¶1 John Atem Jok was accused of sexually assaulting an acquaintance (Victim) while she slept. Jok was charged with and convicted at a bench trial of two counts of sexual battery. Alleging that Victim’s testimony was inherently improbable, Jok contends that there was insufficient evidence to convict him, and he appeals. We affirm.

BACKGROUND¹

The Crime

¶2 Victim lived in a two-bedroom apartment she shared with a friend (Roommate).

Roommate’s three children and boyfriend also lived at the apartment, although the boyfriend was not present on the night in question. Roommate and her children slept in the two bedrooms, and Victim slept on one of the apartment’s two couches, where she kept sheets, pillows, and blankets for that purpose. She had previously been living with her mother, and although she had a learning disability and was receiving Social Security disability benefits, she moved in with Roommate because she wanted to be on her own.

¶3 Accompanied by Roommate’s friend (Friend), Jok and another man, David Deng Akok, visited the apartment around 5 p.m. on September 15, 2012.² Victim knew Friend, but she had never met Jok or Akok. Jok, Akok, Friend, Roommate, and Victim listened to music and drank beer for an hour, at which time Akok left to drive Friend to work. Jok stayed at the apartment, sitting on the living room couch until Akok returned. Upon Akok’s return about fifteen minutes later, Jok and Akok left to purchase more alcohol. They returned with a bottle of vodka and a case of beer. Jok, Akok, Roommate, and Victim continued to drink and listen to music. Jok and Akok drank beer, and Victim drank vodka mixed with juice. Victim stated that she stopped drinking before midnight because she never drinks on Sunday.

¶4 Roommate went to bed in her room around 1 a.m. Sometime later, Victim fell asleep on the couch where she typically slept. Although she did not remember what time she fell asleep, she recalled that she had a headache and was still wearing her t-shirt, bra, underwear, and pants. Victim said that Jok and Akok were sitting on the couch with her when she fell asleep, but she expressed some confusion about their relative locations.

¶5 Victim testified at trial that she awoke to Jok and Akok trying to touch her. Jok placed his hands under Victim’s shirt and touched her breasts. She told him to stop and pushed his hands away, and he said "okay" and stopped rubbing her breasts. But Jok then moved his hand under Victim’s pants and underwear, putting his finger inside her vagina. Victim said that she felt a "[s]harp pain," she told Jok "no" and to stop, and Jok then stopped touching her.

¶6 After Jok stopped touching her, Victim said that Akok began touching her, got on top of her, and pulled down her pants and underwear. She pulled them back up, but he pulled them down again, pinned Victim with his hands, and raped her. Victim begged, "Please, no, ... stop." Victim recalled asking Akok to stop more than ten times. While Akok was raping Victim, Jok sat on another couch and said, "It’s okay." Victim did not call out to Roommate for help during the rape because she thought Akok and Jok "would stop" in response to her saying "no."

¶7 Victim was able to get up after Akok "was done." Akok wanted her to go to his house "to sleep in his bed," but Victim declined and told him she was staying at her apartment. She went to the bathroom to clean up and then into her Roommate’s bedroom to tell her what had happened. Roommate and Victim told Jok and Akok to leave the apartment, but the two men refused. Roommate then called the police.

¶8 When the police arrived at about 6:30 a.m., they encountered Jok outside the apartment. He was "stumbling," had a hard time walking a straight line, smelled of alcohol, and had bloodshot eyes. Police also found Akok inside the apartment lying near the entrance. Both Jok and Akok appeared to be intoxicated. When a detective attempted to interview the two men, she was unable to understand Jok because his speech was slurred; Akok was entirely unresponsive.

¶9 Some of the details Victim offered to the police—given by means of a statement to an officer and witness report during the immediate investigation—varied from the testimony she offered at trial, which is recounted above. See supra ¶¶ 3–7.³ She told police that after Roommate had gone to bed at 1 a.m., she was lying on the couch when Akok began to make inappropriate sexual comments toward her and physically touch her. After going into the bathroom to clean up, she found Jok and Akok still seated in the living room area. Although she was upset about what had happened, she lay down on the couch and tried to go to sleep. She told police that Akok raped her and then Jok fondled her breasts and touched her vagina numerous times in an attempt to penetrate it with his finger. In her witness statement, Victim wrote that Akok had touched her before Jok.

¶10 After giving her statement, Victim went to the hospital for an examination by a sexual assault nurse examiner (Nurse). Victim told Nurse that after Roommate went to bed, she fell asleep on the couch. She awoke to Akok kissing her on the mouth and touching her breasts. Akok then pulled down her pants and underwear and forced her to have sex. Victim said that Jok then pulled up her bra and touched her breasts. She also disclosed that Jok had touched her vagina and anus with his hand.⁴ Nurse stated that she was "surprised at the amount of injury" (namely, redness, swelling, a one centimeter laceration) to Victim’s genitalia and that the one centimeter bruise-like injury to Victim’s hymen "is more consistent with digital penetration, a penetration by a finger. I don’t often see injury to the hymen when there is not [a] report of digital penetration."

¶11 After the physical examination, a detective assigned to the case interviewed Victim. Victim told the detective that after the incident with Akok, she went to the bathroom, came back to the couch, slept for four hours, and awoke to Jok touching her.

¶12 Roommate also filled out a witness statement for police, maintaining that Jok and Akok were "drinking and hanging out" at the apartment when she went to bed at 1 a.m. Roommate stated that Victim came into her room at around 6 a.m. and told her that Akok had forced her to have sex, that Jok had touched her, and that "she told them to stop but they wouldn’t."

¶13 A DNA analyst (Analyst) determined that a sample of sperm cells from a vaginal swab matched Akok’s DNA. No other male’s DNA was detected on the swabs. Analyst explained that "touch DNA" is more difficult to detect because vaginal fluid tends to slough off the small amount of genetic material deposited by mere touching.

Procedural History

¶14 The State charged Jok with two counts of forcible sexual abuse and Akok with rape, and the two men were tried together before a jury. The State’s witnesses included Victim, several police officers, Nurse, and Analyst.⁵ These witnesses testified that (1) Jok and Akok had come to the apartment for a visit, (2) Victim fell asleep on a couch in the living room, (3) Jok had touched Victim’s breasts and digitally penetrated her vagina, (4) Akok raped Victim, (5) Victim informed Roommate of the sexual assault, and (6) Roommate called the police.

¶15 At the close of the State’s case, Akok made a motion "for directed verdict of acquittal for the insufficiency of the evidence." Jok joined this motion and additionally asked for a judgment of acquittal "based on [Victim’s] testimony that when she was touched by [Jok], she said no, [and] he stopped." The district court asked whether the basis of both motions was "the credibility of [Victim’s] testimony." Jok’s counsel responded, "Yes," but neither defendant presented any specific reason why Victim’s testimony lacked credibility or suggested that Victim’s testimony was so inherently improbable that the district court should disregard it. The State argued that Victim’s credibility was "going to be an issue for the jurors to decide." The State also pointed out that Jok’s "one free touch" theory had no legal basis. The district court denied the motions for directed verdict, stating,

There has been sufficient evidence to support all of the charges as they are for a trier of fact to now at least address that. Specifically to the credibility, it will just go to weight[,] and ... there is no legal basis for just saying because the positions were changed and the different body parts were involved that it doesn’t support two potential verdicts[,] one on each of the forcible sexual abuse.

¶16 The jury convicted Jok and Akok as charged. Jok and Akok appealed, asserting that prosecutorial misconduct occurred in closing argument. This court agreed and vacated the judgments of conviction. State v. Jok , 2015 UT App 90, ¶¶ 11, 15, 348 P.3d 385 ; State v. Akok , 2015 UT App 89, ¶¶ 14, 30, 348 P.3d 377.

¶17 On remand, Jok, represented by new counsel, agreed to a bench trial,⁶ using the transcript of the first trial as evidence instead of presenting the evidence again.⁷ The parties stipulated to the district court receiving Roommate’s statement—that Victim went into Roommate’s room and told her that "[Akok] forced her to have sex and that [Jok] was touching her and she told them to stop but they wouldn’t"—because Roommate was unavailable to testify. Jok declined to testify, and the defense rested without presenting additional evidence. In closing, Jok’s counsel attacked Victim’s credibility, noting that Victim was intoxicated, that only Akok’s DNA was found on the vaginal swabs, and that Victim’s physical injuries were...