498 P.3d 458
Utah Ct. App.2021Background
- Defendant Oscar Nunez was charged with multiple counts of rape and sodomy of his fiancée’s eight‑year‑old daughter, Kiara; Kiara’s in‑court testimony was limited and did not describe all charged acts.
- The State played portions of Kiara’s recorded Children’s Justice Center (CJC) interview that contained more detailed statements; the court limited the portions shown and required Kiara to be on the stand to explain or deny the interview.
- Medical exam results and testimony from Nunez’s older daughter (Witness) provided corroboration, though portions of Witness’s testimony were struck and strategic decisions were made about impeachment evidence.
- During deliberations a juror (Juror 35) reported anxiety and difficulty deliberating; after discussions in chambers the juror was excused with the agreement of both parties and an alternate replaced her; the jury later convicted on all counts.
- On appeal Nunez raised claims attacking admission of the CJC interview (and compliance with Utah R. Crim. P. 15.5), exclusion of impeachment evidence, sufficiency of the evidence, alleged prosecutorial misconduct, juror replacement, and multiple ineffective‑assistance claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of CJC interview / Rule 15.5 | Nunez: court erred by admitting the interview without following rule 15.5 and by allowing too much of the tape | State: interview admissible under Utah R. Evid. 801(d)(1)(A) as prior inconsistent; rule 15.5 is permissive; court limited portions shown | Court: affirmed — admission proper under 801(d)(1)(A); 15.5 is permissive; no plain error; counsel not ineffective |
| Alleged bolstering by CJC interviewer | Nunez: interviewer’s testimony (child promised to tell truth) bolstered Kiara; counsel ineffective for not objecting | State: testimony described protocol (not vouching); objection likely futile | Court: no improper bolstering; counsel’s failure to object was reasonable |
| Witness’s testimony and excluded impeachment evidence | Nunez: Witness lacked competence/relevance; exclusion of impeachment (bias/hostility) was erroneous | State: Witness was a percipient, testimony was relevant; proffered impeachment was speculative and lacked foundation, excluded under Rule 403 | Court: admission and exclusion within discretion; counsel’s tactical choices were reasonable |
| Sufficiency / directed verdict (Ramsey argument) | Nunez: Kiara’s in‑court testimony was insufficient; conviction rested on weaker out‑of‑court statements so directed verdict required | State: CJC interview was admitted as non‑hearsay and there was corroboration (medical, Witness), so evidence could support verdict | Court: no plain error; totality of admissible evidence sufficient; Ramsey distinguished |
| Prosecutorial misconduct in closing | Nunez: prosecutor vouched, misstated evidence, and drew improper inferences | State: remarks were fair inferences from testimony (CJC protocol, timing, charged counts) and within closing latitude | Court: no misconduct; no obligation to intervene; counsel not ineffective for not objecting |
| Juror replacement / deliberations | Nunez: court improperly limited juror’s description of deliberations and erred in dismissing juror; counsel ineffective for agreeing | State: juror disclosed anxiety (not deliberation content); court properly limited inquiry; defense consented after consideration | Court: any error invited by defense; replacement permissible under circumstances; counsel’s decision reasonable; no reversible error |
Key Cases Cited
- State v. Hoyt, 806 P.2d 204 (Utah Ct. App. 1991) (Rule 15.5 is permissive and not the exclusive method to admit a child’s out‑of‑court statements)
- State v. Burke, 256 P.3d 1102 (Utah Ct. App. 2011) (out‑of‑court child statements may be admissible under other evidence rules)
- State v. Ramsey, 782 P.2d 480 (Utah 1989) (a conviction cannot rest solely on a single uncorroborated out‑of‑court statement that the declarant denies at trial)
- State v. Seale, 853 P.2d 862 (Utah 1993) (an undenied videotaped interview may suffice for conviction when properly admitted)
- State v. Stricklan, 477 P.3d 1251 (Utah 2020) (review sufficiency by considering all evidence before the jury; Ramsey does not automatically control)
- State v. Cox, 826 P.2d 656 (Utah Ct. App. 1992) (impeachment for bias requires foundation; trial court may exclude speculative, prejudicial offers under Rule 403)
- State v. Cruz, 387 P.3d 618 (Utah Ct. App. 2016) (invited error doctrine bars review when party affirmatively accepts a course of action)
- State v. Makaya, 476 P.3d 1025 (Utah Ct. App. 2020) (counsel need not make futile objections; futility defeats ineffective‑assistance claims)