State v. Carvajal, 414 P.3d 984

Background

Victim, a 14-year-old with intellectual disabilities (functional level ~7 years), had a romantic/text relationship with Jose Carvajal, who was in his late 40s and lived with the victim's relatives.
Victim disclosed Carvajal kissed her on the mouth and touched her breast (described in a CJC interview as under her bra for ~15 minutes; at trial she said his hand went "over in my bra" and that it "didn't last long").
The State charged Carvajal with forcible sexual abuse (second-degree felony). The State presented the CJC interview and Victim's trial testimony; Carvajal denied touching her and claimed fabrication.
The jury received an instruction that forcible sexual abuse may be proved by touching specified body parts or "otherwise tak[ing] indecent liberties," with an instruction explaining touching must be skin-to-skin but that touching over clothing could constitute indecent liberties given surrounding circumstances.
Defense counsel did not object to the indecent-liberties instruction or to the prosecutor’s closing argument presenting alternate theories (skin-to-skin or indecent liberties); counsel sought a mid-trial continuance to investigate an investigator’s report but the court denied it.
Jury convicted; district court sentenced Carvajal to one-to-fifteen years. On appeal Carvajal argued ineffective assistance (failure to object to instructions/argument and failure to investigate), plain error by the court, and cumulative error. The Court of Appeals affirmed.

Issues

Issue	Plaintiff's Argument (Carvajal)	Defendant's Argument (State)	Held
Whether defense counsel was ineffective for not objecting to the "indecent liberties" jury instruction	Instruction was inapplicable because the State's claim was only a single touching of a statutorily proscribed body part (breast); inclusion confused jury and prejudiced Carvajal	Instruction correctly stated law and permitted alternate theories (skin-to-skin or indecent liberties based on circumstances); supporting evidence existed	Not ineffective; instruction was legally correct and reasonably supported by the evidence
Whether counsel was ineffective for not objecting to prosecutor’s closing that equated touching and indecent liberties	Prosecutor misstated law and prejudiced jury by suggesting conviction could stand without skin-to-skin touching	Prosecutor may argue alternate theories in closing when legally supported and the instruction was correct	Not ineffective; prosecutor’s alternative theory was permissible and supported by evidence
Whether counsel was ineffective for failing to investigate the investigator’s report (which allegedly suggested touching was over clothing)	Counsel should have questioned the investigator pretrial; that investigation might have undermined the skin-to-skin theory and changed trial strategy	Record does not show investigator’s report proved touching was over clothing; appellant’s claim is speculative and unsupported in record	Not addressed on merits; claim speculative and record insufficient to show deficient performance or prejudice
Whether the court plainly erred or cumulative errors warrant reversal	Court erred by giving inapplicable instruction and by not correcting prosecutor; cumulative errors undermined confidence in verdict	No error: instruction correct, prosecutor’s argument permissible, no cumulative error when no individual errors found	No plain error; no cumulative error; conviction affirmed

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-part ineffective assistance standard)
State v. Clark, 89 P.3d 162 (Utah 2004) (deference to counsel’s tactical trial decisions)
State v. Tillman, 750 P.2d 546 (Utah 1987) (prosecutorial misconduct standard and latitude in closing arguments)
State v. Peters, 796 P.2d 708 (Utah Ct. App. 1990) (indecent liberties may include touching through clothing given surrounding circumstances)
State v. Killpack, 191 P.3d 17 (Utah 2008) (no cumulative-error reversal when no individual errors found)