516 P.3d 768
Utah Ct. App.2022Background
- Victim ("Victoria"), age nine, reported three separate instances of sexual abuse by Jesus Aguilar Jr.: (1) manual contact with Aguilar's penis under his boxers, (2) manual contact with Victoria's buttocks under her clothing, and (3) manual contact with Aguilar's penis over clothing.
- School counselor reported the disclosure to child protective services; Victoria was interviewed twice at the Children’s Justice Center (CJC); Aguilar was interviewed and later arrested and charged with three counts of aggravated sexual abuse of a child.
- Pretrial, the State successfully moved in limine to exclude questioning about the counselor’s prior, unproven allegation and temporary termination as irrelevant and more prejudicial than probative under Utah Rules of Evidence 401/403.
- At trial the State called Victoria, family members, the counselor, and the detective; defense cross-examined the counselor about his training and potential interview contamination. The jury asked which alleged incident corresponded to each count; the court responded in writing by quoting the Information and referring the jury to general jury instructions.
- Jury convicted Aguilar on Counts 1 and 3, acquitted on Count 2. Aguilar moved for a new trial asserting ineffective assistance of counsel and prosecutorial misconduct; the district court denied the motion. Aguilar appealed and sought a Rule 23B remand for additional factfinding; this Court affirmed and denied remand.
Issues
| Issue | Aguilar's Argument | State's/Respondent's Argument | Held |
|---|---|---|---|
| Denial of new-trial motion premised on ineffective assistance (multiple alleged errors) | Trial counsel failed to: seek bill of particulars; object to leading questions; exclude parts of Aguilar’s recorded interview; give effective closing; prosecutor injected personal views — resulting in prejudice | District court found counsel’s performance not deficient and alternatively no prejudice; appellate review under Strickland requires showing deficiency and prejudice | Affirmed: district court’s Strickland analysis was correct; Aguilar failed to rebut district court’s reasoned conclusions |
| Motion in limine excluding counselor’s termination and related allegations | Evidence of counselor’s alleged prior misconduct was relevant to bias, veracity, and potential contamination; probative value outweighed prejudice | Evidence was not relevant to bias and, even if marginally probative, excluded under Rule 403 because it risked confusion, delay, and a mini-trial; admission would be harmless given reinstatement/no charges | Affirmed: no abuse of discretion in exclusion; any error harmless |
| Court’s written response to jury question identifying which allegation matched each count | Court improperly commented on the evidence and may have communicated with the jury outside presence of defendant/counsel (structural error) | Court merely repeated the Information and referred jury to instructions; record shows written instruction was placed on the record; any out-of-presence speculation is unsupported and defendant bears burden to show prejudice | Affirmed: no rule 19(f) violation, no record support for out-of-presence communication, and no showing of prejudice |
| Ineffective assistance for failing to object to detective’s testimony and portions of Aguilar’s recorded interview (including remark "violated") | Counsel should have objected to leading questions, expert-opinion-type testimony, and to suggestive recorded statements that implied prior sex convictions | Trial strategy to avoid calling attention to ambiguous passing remarks was reasonable; objections likely futile and counsel’s choices fall within reasonable strategic variation | Affirmed: counsel’s conduct was within reasonable strategy; Aguilar failed to show deficient performance or prejudice |
| Rule 23B remand for additional ineffective-assistance/factfinding (jury racial bias, uncalled witnesses, investigation, expert testimony) | Remand necessary to develop facts showing juror racial bias, counsel’s failure to investigate/call witnesses (sister, mother), and omitted expert to rebut trauma signs | Allegations are speculative or already in the record; Rule 23B requires nonspeculative factual allegations that if true would establish ineffective assistance and prejudice | Denied: allegations were speculative or insufficient to show that, even if true, counsel was ineffective or prejudice would have resulted |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective-assistance standard: deficient performance and prejudice)
- State v. Torres-Orellana, 493 P.3d 711 (Utah Ct. App. 2021) (applies Strickland standard to a new-trial ineffective-assistance claim)
- State v. King, 190 P.3d 1283 (Utah 2008) (posttrial voir dire/remand may be appropriate where juror statements suggest concrete basis for bias)
- State v. Powell, 463 P.3d 705 (Utah Ct. App. 2020) (describing Rule 23B remand for appellate factfinding on ineffective-assistance claims)
- State v. Griffin, 441 P.3d 1166 (Utah 2015) (Rule 23B remand denied where allegations are speculative)
- State v. Cuttler, 367 P.3d 981 (Utah 2015) (abuse-of-discretion standard for evidentiary rulings)
- State v. Bond, 361 P.3d 104 (Utah 2015) (plain-error review of unpreserved structural-error claims requires showing prejudice)