State v. Nunez-Vasquez

468 P.3d 585

STATE of Utah, Appellee,

v.Jamie Ernesto NUNEZ-VASQUEZ, Appellant.

No. 20160794-CA

Court of Appeals of Utah.

Filed June 25, 2020

Nathalie S. Skibine, Attorney for Appellant

Sean D. Reyes, Salt Lake City, and John J. Nielsen, Attorneys for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

Opinion

CHRISTIANSEN FORSTER, Judge:

¶1 Jamie Ernesto Nunez-Vasquez (Defendant) challenges his conviction for forcible sodomy. With respect to the exclusion of evidence of the victim's past sexual history, Defendant argues that the trial court violated his constitutional rights and that his trial counsel rendered ineffective assistance. Defendant further contends that the court erred in declining to give a requested mistake-of-fact jury instruction. Lastly, he raises other ineffective assistance claims related to arguing the rules of evidence, failing to exclude Defendant's statements, and failing to object to certain testimony. We affirm.

BACKGROUND¹

Sexual Assault

¶2 In October 2013, a man (Victim) went to a house party with a gay friend and began drinking any alcoholic drink "that [he] could get a hold of." There, Victim met, for the first time, Defendant and another man (Friend), who both identify as gay. Victim, Friend, and Defendant then left the house party together and continued drinking at a bar. After a quick stop at Friend's apartment, the trio went to a night club, where the heavy drinking continued.

¶3 Throughout the night, Victim drank "alcohol in excess," and "if somebody gave [him] alcohol, [he] would drink it." Defendant heard Victim say at one point that he "identified as straight." After the partying and drinking had ended, the trio returned to Friend's apartment, even though Victim "had wanted to go home." When they arrived at the apartment, at about 5:00 a.m., Victim took off his shirt and "passed out, blacked out" on the couch.

¶4 The next thing Victim remembered was waking up on the floor of a "random apartment." His pants and underwear were pulled down to his ankles, and Defendant, "someone [he] hardly knew," was fondling him. Victim "broke free" and felt pain and lubricant in his rectum, the latter sensation being consistent with a container of personal lubricant sitting on a nearby table. Victim immediately went outside and called the police, reporting that he had been raped. This call was made at 11:43 a.m. When officers arrived, they found Victim outside "pacing around," "visibly upset," and talking "loud" and "fast."

¶5 When Defendant, who was also outside, was identified as the suspect, he "turned and started to walk away." The officers told him to stop and proceeded to detain him and place him in handcuffs. Defendant was informed by an officer that he was not yet under arrest. An officer recited the Miranda rights from memory, forgoing use of the printed card he carried and believing that he "got it pretty close to being right." See generally Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). An officer next asked him, "Having these rights in mind, do you wish to talk to me now?" Defendant responded, "Sure," and proceeded to talk with the officer. The officer asked Defendant if it was true that he was lying behind Victim fondling him, to which Defendant responded that it was. The officer then asked Defendant if he had sex with Victim. Defendant said that "he didn't know." But when asked why he thought Victim "was open to sex with another man," Defendant replied that "he thought it was mutual because they were close."

¶6 Victim was transported to the hospital and examined by a sexual assault nurse examiner (Nurse). Later in the day, Defendant was taken to a holding room and interrogated by a different officer. Defendant told the officer that he was not sober but responded affirmatively when asked if he could speak clearly and "recall the events that took place" the night before. Defendant also asked if he needed an attorney. The officer responded, "[I]f you'd like an attorney then that's up to you" and, "[Y]ou waived your rights [earlier], meaning that you agreed to talk with [us], that's why at this point I'm just trying to ask you [if] you understand those rights." Defendant answered, "I do." Finally, Defendant asked if he had to answer questions if he did not "feel comfortable." The officer told him that he did not have to answer the questions and asked him if he needed to read him his rights again, to which Defendant replied, "No, I understand."

¶7 During the interrogation, Defendant stated that he did not think Victim was gay but that he has "a thing for straight guys" and that "it's attractive to [him]" and a "challenge, getting a straight guy" to have sex with him. Defendant also said, "Just because a guy tells me that [they're] straight doesn't mean that ... they don't want to [have sex]." He explained that he has "had sex with plenty of straight men." Defendant then admitted that he removed Victim's pants, had sex with Victim, and fondled him but believed that Victim was "completely awake" and consenting.

¶8 Defendant was subsequently charged with forcible sodomy.

Legal Proceedings

¶9 At the preliminary hearing, Victim testified that he had a girlfriend, was not gay or bisexual, and had never had sex with a man. Defendant's trial counsel subsequently filed a motion under rule 412 of the Utah Rules of Evidence seeking to admit evidence at trial of Victim's "sexual behavior or predisposition," specifically that "Defendant ha[d] male witnesses that w[ould] testify that they ha[d] engaged in sexual activity with [Victim]." Trial counsel argued, "The exclusion of this line of questioning will violate ... Defendant's constitutional rights to confront and cross-examine [Victim] under the Confrontation Clause." Trial counsel also asserted that Defendant should be able to confront Victim with the sexual-behavior evidence under rule 608(c) of the Utah Rules of Evidence to impeach Victim's testimony given at the preliminary hearing that he was straight.

¶10 The State argued that such evidence was inadmissible because rule 412 prohibits the admission of evidence of a victim's prior sexual activity or predisposition to prove consent and rule 608 forbids the use of extrinsic evidence to prove specific instances of conduct to attack a witness's character. The State did not specifically address Defendant's argument that evidence of Victim's prior sexual behavior was admissible under rule 608(c). The court agreed with the State and denied the motion but left open the possibility that Defendant might seek admission of the evidence at trial if Victim opened the door by testifying that he was not gay and thus would not have consented. Trial counsel replied that he "underst[oo]d the ground rules" and otherwise had "no response."

¶11 Before trial, Defendant filed a motion seeking to have his custodial statements suppressed because he "clearly indicated that he was not sober and that he did not feel comfortable answering questions." The trial court denied the motion, finding that Defendant had "an understanding of his rights and chose to speak to the officer."

¶12 At trial, Victim testified that he had "some problems with [his] memory" of the sexual assault because approximately a year after the assault, he was in a motorcycle accident that placed him in a coma and "caused [him] to lose all [his] long-term and short-term memory." After Victim described the circumstances of the sexual assault to the best of his recollection, see supra ¶¶ 2–4, the State asked Victim, "Do you remember flirting with [Defendant] that night?" Victim responded, "I definitely would have never done that." The State followed up: "[D]o you have any independent memory of that?" Victim responded, "I did not do such behavior." Then the State asked, "Do you remember if you ever had conversation with [Defendant] that night about having sex?" Victim answered, "I did not have such conversation." On cross-examination, trial counsel questioned Victim, "Isn't it true that you don't remember what you said or did with my client at any location that you were at that evening [i.e., the night preceding the sexual assault]?" Victim responded, "I would know if I would have given consent."

¶13 Nurse, who first examined Victim, then testified. The following exchange took place during her testimony:

[State]: Now, did [Victim] tell you that he had remembered being sexually assaulted?

[Nurse]: No.

[State]: Did that concern you?

[Nurse]: No.

[State]: Why's that?

[Nurse]: It's very common that either due to alcohol, drugs or just the traumatic experience, a lot of people will not have any real recollection or they don't know a lot of detail about what happened. It's just part of trauma.

[State]: Now, in this case, did [Victim] give you any indication in the history that would explain why he wasn't able to remember?

[Nurse]: No, just the fact that he said he had several drinks and he wasn't sure what was in them. That can be a red flag for maybe possibly that someone put drugs in his drink, which can happen. So it just kind of went along with what maybe could have happened from his story with drinking.

[State]: What about just alcohol?

[Nurse]: Sure.

[State]: Could just alcohol consumption?

[Nurse]: Oh yeah, of course.

¶14 On cross-examination, trial counsel asked Nurse if she was able to tell if the sex was consensual or not. Nurse answered that she could not because "[t]hat's not part of [her] job. [She is] just there to document injury and say that it could have come from assault but it may not have."

¶15 Defendant testified on his own behalf. He testified that Victim was "an acquaintance" and the day of the sexual assault was the "second or th[ird] time [they had] met." Defendant was "really intoxicated," but he remembered seeing Victim "tak[e] his shirt off" and "[lying] down on the couch with [Victim]." Defendant further testified that they ended up on the floor...