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State v. Carvajal

Court of Appeals of Utah

January 19, 2018

State of Utah, Appellee,
Jose Carvajal, Appellant.

         Third District Court, West Jordan Department The Honorable William K. Kendall No. 141401240

          Debra M. Nelson, Attorney for Appellant

          Sean D. Reyes and John J. Nielsen, Attorneys for Appellee

          Judge Kate A. Toomey authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.

          TOOMEY, JUDGE.

         ¶1 Jose Carvajal, then in his late 40s, engaged in a romantic relationship with Victim, a 14-year-old minor with intellectual disabilities. Their relationship involved text communications and ultimately became physical. When this was discovered, Carvajal was charged with forcible sexual abuse, and the case against him was tried by a jury. He appeals his conviction, arguing that he received ineffective assistance of counsel, that the court erred in several respects, and that cumulatively, these errors undermine confidence in the verdict against him. We affirm.


         ¶2 Victim and her family moved to the United States when she was nearly 14 years old and initially lived with Victim's maternal aunt (Aunt) and Aunt's husband (Uncle). Carvajal is Uncle's brother and lived in the same household. Victim continued to visit there, even after she and her family moved elsewhere.

         ¶3 Victim's functional intellectual level is equivalent to that of a 7-year-old child, and her intellectual disability affects her memory. She attends a special education program.

         ¶4 Despite Victim's youth and her significant intellectual challenges, Carvajal apparently became infatuated with her: he addressed her in romantic terms, told her he loved her, and told her "that he wanted to marry" her. He blew kisses to Victim, kissed her on the lips and mouth, caressed her, and hugged her with what he described as "love and passion." One day as they sat next to one another on the couch, Carvajal touched Victim's breast, either under her bra or over her bra, for what she variously characterized as fifteen minutes or not long. He held his hand there, she took it off, and he put it back.

         ¶5 Soon after this incident, Victim's mother discovered text messages between Victim and Carvajal. In those messages, Carvajal wrote: "You know I will tell you a secret[:] it is the second time that I hug a woman but the first with so much love and passion." When Victim asked who was the first, he responded "You Love." When Victim asked if he wanted her to be older or as she is "right now, " Carvajal responded, "Well I love you very much as you are right now and if you were 23 or more I would beg you that we would marry[.] I would beg you to accept me . . . ." When Victim suggested she had other boyfriends, he responded,

Love if you want to be a girlfriend to one of your friends it is because you really don't love me[.] [P]lease if you are doubting and thinking of telling one of them that you will accept him then let me know so that I don't continue falling in love and let me know so I don't fall more in love and avoid suffering any more.

         They exchanged professions of love, in the form of words and images, and Carvajal wrote, "I hope to be able one day for the opportunity when we don't have to hide." Eleven days after this exchange, Carvajal wrote to Victim, instructing her to "[e]rase everything."

         ¶6 At trial, Carvajal characterized his text messages to Victim as "lead[ing] her on" and testified that their relationship would "only be on the phone, but not in person." But during a conversation with Aunt before trial, Carvajal admitted that he kissed Victim, dreamt about her, and wanted to marry her.

         ¶7 Victim's parents reported their concerns to the police, and a forensic interviewer spoke with Victim at the Children's Justice Center (the CJC), where Victim disclosed that Carvajal kissed her on the mouth and, on another occasion, touched her under her bra with his hand. The State charged Carvajal with one count of forcible sexual abuse, a second-degree felony.

         ¶8 During trial, the jury watched a video of the CJC interview with Victim and heard her testify. Victim's testimony was at times contradictory, and she was intermittently confused and forgetful, but when asked whether the things she talked about during the CJC interview had happened, she responded "yes." Although in the CJC interview she said Carvajal touched her breast under her bra with his hand for about fifteen minutes, she phrased it a little differently at trial: Carvajal's hand went "inside [her] shirt" and "[o]ver in [her] bra." When asked how long it lasted, she responded that "[i]t didn't last long."

         ¶9 After the State rested its case, defense counsel moved for a directed verdict on the basis that Victim testified that Carvajal touched her "over her bra."[1] Counsel also speculated, based on an investigating officer's recommendation that Carvajal be charged with sexual battery, that perhaps Victim told a police officer that Carvajal touched her over her clothing, and argued that, if true, "that's material exculpatory evidence." Accordingly, defense counsel moved for a ...

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