STATE оf Utah, Appellee, v. Saul Ahua CUAQUENTZI, Appellant.
No. 20140748-CA
Court of Appeals of Utah
Dec. 31, 2015
2015 UT App 311
Joanna E. Landau and Lisa J. Remal, for Appellant. Sean D. Reyes and Kris C. Leonard, Salt Lake City, for Appellee.
¶ 17 In summary, Defendant has not shown plain error in her conviction on the retaliation charge, because there was sufficient evidence of retaliation to support each element charged. The jury was entitled to accept the evidence it believed and reject the evidence it did not, while this court is bound to view the evidenсe as it best supports the jury‘s verdict. Because there was sufficient evidence to submit the retaliation charge to the jury, trial counsel was not ineffеctive when he chose not to raise a futile motion to the contrary. While we affirm Defendant‘s retaliation conviction, we remand for the trial court to correct Defendant‘s other convictions and her sentence.
Memorandum Decision
ORME, Judge:
¶ 1 Saul Ahua Cuаquentzi (Defendant) appeals his convictions on two counts of aggravated sexual abuse of a child, both first degree felonies. See
¶ 2 Although Defendant takes issue with many of the facts outlined by the State, and apparently believed by the jury, we take as our starting point the facts, and the reasonable inferences drawn therefrom, viewed “in a light most favorable to the verdict.” State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116. Thus, “we recite the facts accordingly.” Id.2
¶ 3 One day in April 2013, the victim‘s mother returned hоme from a party. She checked on the victim, aged seven, who was “in her bedroom playing with her Barbies.” The victim became “really quiet” and said, “Mom, I nеed to tell you something.” The victim then told her that Defendant “put his pee pee here.” According to her mother, “She then pointed to her bum.”
¶ 4 The mothеr was acquainted with Defendant and confronted him soon after. Defendant denied the accusation and suggested that perhaps an intruder had entered the victim‘s room during the night and that the victim had mistakenly thought it was Defendant. The mother checked but found no evidence of a forced entry and further recalled that she had unlocked the deadbolt when she returned home from the party. The mother decided to take the victim to the hospital to have her examined for signs of sexual assault.
¶ 5 At the hospital, a doctor examined the victim and swabbed the outside of the victim‘s rectum. The swab picked up semen residue. When tested, the semen on the swab was found to match Defendant‘s DNA. In the course of the ensuing police investigation, the victim reported that she had been similarly abused by Defendant on a prior occasion. Defendant was accordingly charged with two counts of sexual abuse, and was tried and convicted on both counts. He now appeals, and the only issue he raises is a claim of prosecutorial misconduct during closing arguments. Specifically, after summarizing Defendant‘s prior relationship with the victim and her family, the prosecutor said, “The evidence that you‘ve heard paints а picture of a man who sexually abused that child. Who took his position of trust . . . and exploited it. He took something innocent and good and made it criminal.” Defense counsel objected that the remark was inappropriate and that the prosecutor “should concentrate on the evidence and not on the victim.” The trial court overruled the objection.
¶ 6 We review the “trial court‘s handling of claimed prosecutorial misconduct for an abuse of discretion.” State v. Kozlov, 2012 UT App 114, ¶ 28, 276 P.3d 1207 (citation and internal quotation marks omitted). Prosecutorial misconduct in the form of improper argument in a jury trial warrants reversal when (1) “the prosecutor‘s statements during closing argument call[] the jurors’ attention to matters they [are] not authorized to consider during deliberatiоns” and (2) “the statements prejudice[] the defendant.” State v. Fouse, 2014 UT App 29, ¶ 29, 319 P.3d 778 (citation and internal quotation marks omitted). Because a defendant challenging his conviction undеr the rubric of prosecutorial misconduct must prove both elements, we will affirm Defendant‘s convictions if he has failed to establish either re
¶ 7 In analyzing the potentially prejudicial effect of a prosecutor‘s comments, “we look at the evidence of the defendant‘s guilt.” State v. Thompson, 2014 UT App 14, ¶ 83, 318 P.3d 1221. “‘If proof of defendant‘s guilt is strong, the challenged conduct or remark will not be presumed prеjudicial, but when the evidence is ‘less compelling’ we ‘will more closely scrutinize the conduct‘” Id. (quoting State v. Troy, 688 P.2d 483, 486 (Utah 1984)). To the extent that “the conclusion of the jurors is based on their weighing conflicting evidence or evidence susceptible of differing interpretations, there is a greater likelihood that they will be impropеrly influenced through remarks of counsel.” Troy, 688 P.2d at 486.
¶ 8 In Thompson, we determined that a prosecutor‘s improper statements had prejudiced the defendant becausе “the State‘s case relied almost entirely upon [the victim‘s] allegations, which [the defendant] denied.” 2014 UT App 14, ¶ 84, 318 P.3d 1221. “Thus, the jurors were tasked with weighing that conflicting evidenсe and deciding who was telling the truth. The prosecutor‘s improper vouching for [a witness for the State], improper expression of opinion abоut [the defense witness‘s] credibility, and improper statements about [the defendant‘s] body language bore directly on this pivotal function of the jury.” Id. On the other hand, in State v. Todd, 2007 UT App 349, 173 P.3d 170, despite оur conclusion that the prosecutor engaged in improper conduct, see id. ¶¶ 21, 27, 30, we concluded that a reversal was not warranted “given the compelling evidence of [the defendant‘s] guilt,” id. ¶ 40.
¶ 9 This case is much more like Todd than Thompson. Whereas in Thompson the State‘s case depended almost entirely on the credibility of the alleged victim of sexual abusе, 2014 UT App 14, ¶ 84, 318 P.3d 1221, here the victim‘s account of abuse is additionally supported by compelling physical evidence: the uncontested presence of Dеfendant‘s semen in the area of the victim‘s rectum.3 See Todd, 2007 UT App 349, ¶ 40, 173 P.3d 170.
¶ 10 Given “the overwhelming evidence of Defendant‘s guilt,” he has not met the requirement of demonstrating that the prosecutor‘s comment prejudiced him. See id. ¶ 51. With or without that remark, the jury would have convicted Defendant given the physical evidence that he sexually assaulted the victim.
¶ 11 Affirmed.