State v. Akok, 348 P.3d 377

Defendant David Deng Akok and a codefendant were at the victim N.C.’s apartment after buying alcohol; N.C. later awoke to sexual contact by both men and reported forcible digital penetration and intercourse.
Medical exam found injuries consistent with forcible penetration and semen in N.C.’s vagina matching Defendant’s DNA; Defendant claimed the intercourse was consensual and said he was intoxicated and unconscious at times.
Defendant was tried jointly with the codefendant for rape (first-degree felony) and convicted; he appeals only the rape conviction.
During the prosecutor’s rebuttal closing, the prosecutor stated: “They took advantage of a very vulnerable victim. Don’t let them take advantage of it again.” Defense objected and moved for mistrial; the trial court denied mistrial and gave a general admonition rather than the specific curative instruction defense requested (to which the prosecutor had no objection).
The court of appeals found the prosecutor’s remark improper because it appealed to juror emotion and urged jurors to protect the victim, and held that the trial court’s partial/admonition failed to cure the prejudice given the close, credibility-dependent evidence and lack of chance for defense rebuttal.
Court reversed the rape conviction and remanded for a new trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor’s closing remark was improper prosecutorial misconduct	State: remark urged conviction based on evidence and victim’s vulnerability	Akok: remark appealed to jurors’ emotions, asked them to act as protector and distract from impartial duty	Court: remark was improper; it asked jury to assume responsibility for victim’s safety and diverted them from legal duty
Whether trial court’s curative action was adequate	State: general admonition sufficed; no reversible error	Akok: court should have given the specific agreed curative admonition (prosecutor had no objection) or explained why it refused	Court: general/boilerplate admonition was insufficient given close evidence, inability to rebut (remark in rebuttal), and prosecutor’s non-opposition to the requested instruction; reversal required

Peters v. State, 796 P.2d 708 (Utah Ct. App. 1990) (standard for reversing based on prosecutorial misconduct)
Cummins v. State, 839 P.2d 848 (Utah Ct. App. 1992) (prosecutor statements evaluated in light of totality of evidence)
Wright v. State, 304 P.3d 887 (Utah Ct. App. 2013) (improper jury appeals to protect victim are reversible)
Todd v. State, 173 P.3d 170 (Utah Ct. App. 2007) (limits on prosecutor conduct and reversal threshold)
Troy v. State, 688 P.2d 483 (Utah 1984) (strength of evidence affects prejudice analysis for improper remarks)
Thompson v. State, 318 P.3d 1221 (Utah Ct. App. 2014) (undermining confidence in verdict test)
Harmon v. State, 956 P.2d 262 (Utah 1998) (curative instructions can remedy improper statements but are not always sufficient)
Holgate v. State, 10 P.3d 346 (Utah 2000) (appellate review standard—view facts in light most favorable to verdict)
United States v. Holmes, 413 F.3d 770 (8th Cir. 2005) (noting particular danger of prejudicial remarks made during rebuttal closing when defense cannot respond)