District Court, West Jordan Department The Honorable William
K. Kendall No. 141401240
M. Nelson, Attorney for Appellant
D. Reyes and John J. Nielsen, Attorneys for Appellee
Kate A. Toomey authored this Opinion, in which Judges Gregory
K. Orme and Ryan M. Harris concurred.
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.
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.
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.
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.
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
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.
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."
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.
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.
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
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." 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 ...