State v. Macleod

546 P.3d 366

2024 UT App 32

STATE of Utah, Appellee,

v.Cailean Torquil MACLEOD, Appellant.

No. 20220163-CA

Court of Appeals of Utah.

Filed March 14, 2024

Third District Court, Salt Lake Department, The Honorable Amber M. Mettler, No. 201909556

Robert T. Denny, Attorney for Appellant

Sean D. Reyes, Salt Lake City, and Daniel L. Day, Attorneys for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan D. Tenney concurred.

Opinion

ORME, Judge:

¶1 Cailean Torquil Macleod appeals his convictions on one count each of rape and object rape and on two counts of forcible sexual abuse. In challenging his rape and object rape convictions, he argues that his trial counsel (Counsel) was ineffective for not objecting to alleged prosecutorial misconduct and inadmissible hearsay testimony. As concerns his forcible sexual abuse convictions, he contends that Counsel was ineffective for not requesting that the jury be adequately instructed on the constitutional unanimity requirement. Macleod’s unanimity argument is well taken, and we therefore reverse his forcible sexual abuse convictions. But because his rape and object rape convictions withstand his other claims of ineffective assistance, we affirm those convictions.

BACKGROUND¹

¶2 In 2020, Macleod and Hannah² connected on a dating app. After a day of messaging back and forth, Hannah invited Macleod to her house. There, while lying on her bed, Macleod told Hannah "some personal stuff about him that he doesn’t really share with a lot of people." Hannah then disclosed to him that she had herpes. Macleod "didn’t seem to mind" and "was very understanding," so the two proceeded to have consensual sex. Afterward, Hannah told Macleod that she wanted to wait three months before having sex again because she wanted to see whether "this was going to turn into … an actual relationship" and because she "didn’t want it to be a hookup."

¶3 Macleod saw Hannah again at her house a few days later. They first socialized with Hannah’s two roommates in the basement of her house before going upstairs to talk alone for a while. Macleod eventually became frustrated because Hannah did not want to have sex, and he went outside. There, he spoke with Hannah’s male roommate (Roommate), who mentioned that Hannah had sex with another man the other day when she was drunk. Macleod then returned inside the house and told Hannah, "Oh, I just have to get you drunk to have sex with you."

¶4 The next day, Macleod met Hannah and Roommate at a grocery store. There, Macleod "kept trying to touch [Hannah’s] butt" and "to hug [her] from behind." Hannah told him "no" repeatedly, as well as "stop," and that she needed "space." Despite her protestations, Macleod was undeterred, so Hannah yelled, "Just stop touching me!" Hannah testified that "his hands did kind of touch my butt" over her clothing "but it wasn’t like grabbing it." Roommate testified that he saw Macleod groping Hannah’s "breasts, thighs, and sides" at the store.

¶5 After buying groceries, Hannah, Macleod, and Roommate returned to Hannah’s house. There, they sat in the kitchen for about half an hour, each drinking a beer. They then went outside, where Macleod and Hannah played basketball while Roommate sat nearby, alternating between watching them and playing on his phone. Hannah testified that during the game of basketball, whenever she went to shoot, Macleod would grab her by the waist or touch her buttocks over her clothes, and at one point he touched her breasts over her clothes. Roommate testified that during the game Macleod tried to kiss Hannah and that he was groping her inner thighs and breast area. Hannah testified she repeatedly told him, "That’s not how you play basketball" and that she "didn’t want him to touch [her] like that." Eventually, she became very "frustrated and annoyed," so she ended the game and went to sit next to Roommate.

¶6 Hannah asked Macleod to go back into the house and retrieve another beer for her, which he did. While drinking it, Hannah began to feel tired and stated that she wanted to go inside, where they could lie down and watch a movie. She and Macleod then went to her bedroom. Hannah explained that although there were other televisions in the house, the one in her bedroom was the only one that was "plugged into … the cable." In her room, Hannah changed into pajamas. She was also wearing teal underwear and socks. While lying on their sides on the bed together, Macleod "tr[ied] to cuddle with" Hannah by placing one arm under her head and the other on her stomach. Hannah was "okay" with this touching.

¶7 Macleod then touched Hannah’s buttocks and vagina over her clothes. She told him "to stop" and that she "just wanted to go to bed," and she moved his hand away. At first, Macleod "let it go for a little bit," but he then touched her buttocks and vagina again. Hannah again told him "no" and that she "just wanted to go to bed." Then, while Hannah was still lying on her side, Macleod pulled down her pants and inserted his fingers into her vagina. Hannah grabbed his hand and pulled it away and again said "no," "I just want to go to bed," and that she "didn’t want anything to happen." Macleod did not say anything in response.

¶8 Hannah testified that she next remembered "dozing off," but she was not certain whether she fell asleep. The next thing she knew, she was lying on her stomach with her pants and underwear pulled down and Macleod was on top of her with his penis inside her vagina. Hannah told him to "get the fuck off" her, to which he said, "Don’t you like that?" Hannah responded, "No. Get the fuck off me." After a few seconds, Macleod removed himself from on top of her.

¶9 Hannah then pulled up her pants and underwear, moved back onto her side, hid under the covers, and texted Roommate. She typed, "Lol your still up," "He just tried to have sex with me while I was half a sleep," and "I dont feel comfortable at all going to bed." At one point, Hannah thought Macleod had left when she heard him exit through the front door of the house, so she went into the kitchen. But Macleod quickly returned to the house to retrieve a hat he had left behind. Upon seeing Hannah, he said, "Oh, you’re still awake. I was going to leave you a note telling you that I had to leave, that I didn’t have my medication, and that I’m not in the right state of mind and I need to leave." Hannah replied, "[O]kay." When Macleod left for a second time, Hannah texted Roommate, "He left finally."

¶10 Roommate testified at trial that he heard Hannah shout, "Get the fuck away from me!" through the shared wall between their bedrooms, but he remained in his room because he "was already passed out." Because he had fallen asleep, he did not see Hannah’s messages until right before he left for work the next morning. Roommate testified that after work, Hannah told him about the previous night and that as she was falling asleep, "out of nowhere she felt something inside her and woke up" and that "what was inside her was [Macleod’s] fingers." Roommate then stated that she told Macleod, "No. Get the fuck off me." Roommate continued, "And then a couple more minutes later, she passed out again. But this time, instead of hands, he flipped her over, pulled down her pants, and stuck his dick in" her vagina. During cross-examination by Counsel, Roommate acknowledged that although he heard Hannah shout at Macleod, he was not in the room and did not see any of this happen.

¶11 The next day—about a day and a half after the sexual assault—Hannah, accompanied by Roommate and with his encouragement, went to the hospital for an examination and to report what had happened. She brought the clothes she was wearing at the time of the assault with her. At the hospital, Hannah met with a sexual assault nurse examiner (Nurse). Nurse testified at trial that Hannah told her that while on the basketball court, Macleod "kept hugging her [and] kept trying to touch her and she kept telling him to stop," and that later in the bedroom, as Nurse recounted, "he kept trying to pull her pants off and she kept telling him to quit." Hannah told Nurse that after she fell asleep, "she woke up because she was being rolled over on her stomach and then he was penetrating her from behind." Hannah said that Macleod stopped penetrating her "shortly after" she told him to stop.

¶12 Nurse also collected some of the clothing Hannah brought to the hospital, including the teal underwear, and swabbed Hannah’s breasts, neck, fingernails, mouth, "pubis to anus," and "vaginal vault." Subsequent DNA testing revealed male DNA in her vagina, but of an insufficient quantity to allow for further testing. DNA testing of the teal underwear revealed "touch DNA"³ belonging to Macleod and seminal fluid belonging to the other man Hannah had sex with a few days earlier.

¶13 A police officer (Officer) also spoke with Hannah at the hospital. Officer testified at trial that when he first saw Hannah in the hospital room, she was sitting on the hospital bed "in a fetal position" with her arms wrapped around her legs. She appeared to him as though she had been crying, and she was "very jittery, tense, on edge" with "[p]retty frantic eye movement." Officer testified that Hannah told him that while playing basketball, Macleod "kept trying to grab her … private areas: Buttocks, thighs, breasts, vagina area," and that Hannah kept having to push him away and tell him, "No … don’t touch me. I don’t want that." Officer testified that Hannah told him that later that evening, she and Macleod watched a movie in her bedroom and she eventually fell asleep. At approximately 3:00 a.m., Hannah said, she woke up "with her pants down and she was being penetrated by" Macleod. She told Officer that Macleod’s "fingers and his penis had entered her vagina." Officer understood Hannah to mean that both forms of penetration occurred at "[a]pproximately" the same time. Hannah told Officer that she told...