District Court, Salt Lake Department The Honorable Elizabeth
A. Hruby-Mills No. 141911297
Ishola and Carlos Navarro, Attorneys for Appellant
D. Reyes, Jennifer Paisner Williams, and Erin Riley,
Attorneys for Appellee
Michele M. Christiansen authored this Opinion, in which
Judges Gregory K. Orme and Jill M. Pohlman concurred.
Defendant Fernando Antonio Guzman appeals his conviction on
one count of rape, a first degree felony. See Utah
Code Ann. § 76-5-402 (LexisNexis 2017). Defendant
contends that the trial court erred in excluding evidence
under rule 412 of the Utah Rules of Evidence, that the trial
court erroneously admitted hearsay evidence and violated his
constitutional right to confrontation, and that the State
failed to produce sufficient evidence at trial to support his
conviction. We affirm.
In November 2011, Victim, who was then fifteen years old, was
a patient at a healthcare facility. Victim fled the facility
on foot and wound up on the freeway, where Defendant picked
her up. Defendant took Victim to the apartment he shared with
his mother. That night, Defendant had nonconsensual sexual
intercourse with Victim.
The next day, Defendant drove Victim back to the healthcare
facility, and Victim reported the incident to the
facility's staff. Victim was then taken to Primary
Children's Hospital, where a nurse performed a sexual
assault examination. The nurse introduced herself to Victim
"as a nurse working with Safe and Healthy Families"
and stated that she "would be asking [Victim] questions
about why she was there and about her health history and then
[the nurse] would also want to do a physical exam." When
the nurse asked Victim why she was there, Victim "said
she had been raped four times." The nurse also asked
Victim if she was having any pain or had any injuries, and
Victim stated that "she had a sore throat and that she
had bruises on her neck, her stomach and her leg." The
nurse treated Victim with an emergency contraceptive and with
antibiotics for possible exposure to sexually transmitted
infections that might result from "penile
penetration." "[B]ased upon the information [she]
got from [Victim] about ejaculation, " the nurse took
swabs from Victim's stomach, vaginal cavity and
surrounding areas, and anus, and assembled a sexual assault
A detective interviewed both Defendant and Victim. During his
interview with Defendant, the detective explained to
Defendant that Victim alleged he had raped her. Defendant
denied having any sexual contact whatsoever with Victim. The
detective collected a sample of Defendant's DNA via
buccal swab-"a method of collecting DNA by swabbing the
interior surface of a person's cheek." See State
v. White, 2016 UT App 241, ¶ 4, 391 P.3d 311. The
detective took the swab and Victim's sexual assault kit
to the state crime lab for processing.
A forensic biologist tested Victim's swabs for seminal
fluid and was able to "identif[y] sperm on . . . the
vaginal swabs, anal swabs and stomach swabs." A DNA
expert determined that Defendant's DNA matched the DNA
found on Victim's swabs. The DNA expert later testified
that the chances of an unrelated individual, randomly drawn
from the population, matching the DNA profile "turns out
to be in Caucasians 1 in 44 sextillion, in blacks it would be
1 in 350 sextillion, and in southwestern Hispanics it would
be one in 340 quintillion."
The State initially charged Defendant with four counts of
rape and one count of object rape, all first degree felonies,
but later dropped one of the rape counts. At the preliminary
hearing, Victim testified that she "had lied when she
claimed there had been any sexual conduct between her and
Defendant." Based on Victim's preliminary hearing
recantation, Defendant filed a motion pursuant to rule 412 of
the Utah Rules of Evidence, seeking to admit evidence that
Victim was truthful in saying she had "not [been] raped
this time because she had truthfully reported other rape
incident[s] in the past." The trial court denied
During the pretrial conference, the prosecutor indicated that
he had not been able to locate Victim, and the court
continued the trial date to allow the State to subpoena
additional witnesses. At the beginning of trial, when Victim
failed to appear, the State informed the court that it
intended to "offer [Victim's] explanation as to
what happened to her through Rule of Evidence 803(4),
statements made for medical diagnosis or treatment."
Specifically, the State asserted that it intended to call the
nurse to testify about Victim's statements during the
medical examination that she had been raped multiple times.
Defense counsel objected, arguing that Victim did not make
the statements to the nurse for the purpose of medical
diagnosis or treatment and that his only opportunity to
cross-examine Victim had been at the preliminary hearing.
Defense counsel also indicated that he would not seek to
admit Victim's preliminary hearing testimony. The trial
court ruled that
to the extent the statements made by [Victim] to medical
providers were provided for the purpose of diagnosis or
treatment, and those statements were related to medical
diagnosis or treatment, then those statements carry the
guarantee of trustworthiness and [are] entitled to this
exception, and so . . . to the extent that testimony fits
into that criteria, those statements will be allowed.
Before closing arguments, defense counsel moved for a
directed verdict on counts two through four (two counts of
rape and one count of object rape). The trial court dismissed
the object rape count but denied Defendant's motion on
the two counts of rape. The jury convicted Defendant on one
count of rape. Defendant appeals.
AND STANDARDS OF REVIEW
Defendant makes several arguments on appeal. First, he
contends that his "rights to cross-examination and to
present a complete defense [were] abridged when the [trial]
court denied his Rule 412 motion seeking admission of
rebuttal evidence to show that [Victim] knew how to report a
true rape to the authorities." "We review the trial
court's underlying evidentiary determinations for abuse
of discretion." State v. Clark, 2009 UT App
252, ¶ 10, 219 P.3d 631. However, the alleged
"denial of the right to confront and cross-examine
witnesses presents a question of law which is reviewed for
correctness." Id. (quotation simplified).
Second, Defendant contends that he "was denied the right
of confrontation when [Victim] voluntarily abstained from
trial, and third party witnesses testified that [Victim] told
them out-of-court that [Defendant] raped her, contrary to
what she said at [the] preliminary hearing." As part of
this argument, Defendant contends that the trial court's
admission of Victim's hearsay statements under rule
803(4) of the Utah Rules of Evidence "was
problematic." When reviewing rulings on hearsay
evidence, we review legal questions regarding admissibility
for correctness, questions of fact for clear error, and the
trial court's final ruling on admissibility for abuse of
discretion. State v. Rhinehart, 2006 UT App 517,
¶ 10, 153 P.3d 830. "Whether a defendant's
confrontation rights have been violated is a question of law,
reviewed for correctness." State v. Garrido,
2013 UT App 245, ¶ 9, 314 P.3d 1014.
Third, Defendant contends that "[t]he evidence presented
by the State was insufficient to convict [him] of rape."
Defendant concedes that this argument was not preserved in
the trial court and seeks review under the
ineffective-assistance-of-counsel and plain-error exceptions
to the preservation requirement. See State v.
Allgood, 2017 UT App 92, ¶ 19, 400 P.3d 1088
("Appellate courts generally will not consider an issue
raised for the first time on appeal absent plain error,
exceptional circumstances, or ineffective assistance of
counsel." (quotation simplified)). "An ineffective
assistance of counsel claim raised for the first time on
appeal presents a question of law." State v.
Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. A "trial
court plainly errs if it submits the case to the jury and
thus fails to discharge a defendant when the insufficiency of
the evidence is apparent to the court." State v.
Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346. "[T]o
establish plain error, a defendant must demonstrate first
that the evidence was insufficient to support a conviction of
the crime charged and second that the insufficiency was so
obvious and fundamental that the trial court erred in
submitting the case to the jury." Id. When a
defendant challenges the sufficiency of the evidence, we
review "the evidence and all inferences drawn therefrom
in a light most favorable to the jury's verdict."
Id. ¶ 18.
Fourth, Defendant contends that "[c]umulative error
warrants reversal of [his] conviction and a new trial
ordered." "Under the cumulative error doctrine, we
apply the standard of review applicable to each underlying
claim or error and reverse only if the cumulative effect of
multiple errors undermines our confidence that a fair trial
was had." State v. Yalowski, 2017 UT App 177,
¶ 16, 404 P.3d 53 (quotation simplified).
Rule of Evidence 412
Defendant contends that "[t]he court denied [him] the
right to present a complete defense by not allowing him to
present evidence of [Victim's] prior rape incidents to
rebut the State's theory and show that [Victim] knew how
to report a true rape." According to Defendant,
admission of Victim's prior rape accusations would have
illustrated that Victim "had truthfully reported other
rape incidents in the past" and that she "was thus
truthful when she said [at the preliminary hearing that] she
was not raped this time."
In a criminal proceeding involving alleged sexual misconduct,
rule 412 of the Utah Rules of Evidence prohibits admission of
"evidence offered to prove that a victim engaged in
other sexual behavior" or "evidence offered to
prove a victim's sexual predisposition." Utah R.
Evid. 412(a). Defendant concedes that "the evidence [he]
sought to introduce is generally barred under Rule 412,
" but he asserts that "evidence of [Victim's]
other rape incidents/cases should have been admitted under
the exception allowing admission if excluding such would
infringe the right to effective cross-examination."
See id. R. 412(b)(3) ("The court may admit the
following evidence if the evidence is otherwise admissible
under these rules: . . . (3) evidence whose exclusion would
violate the defendant's constitutional rights.").
The trial court determined that
[e]vidence of [Victim's] prior victimization and her
knowledge of how to report a rape is simply not relevant . .
. as to whether the Defendant raped her under the facts of
this matter. . . . The evidence of [Victim's] prior
sexual activity and/or victimization simply does not make it
less probable or more probable that [Defendant] raped or had
sexual intercourse with her in the instant matter.
court further determined that under rule 403 of the Utah
Rules of Evidence, "the probative value of
[Victim's] prior sexual conduct and reporting of sexual
assault is substantially outweighed by the danger of unfair
prejudice to [Victim] and the state, and has a great tendency
to confuse and mislead the jury."
According to Defendant, he "anticipated rebutting the
State at trial with evidence showing that [Victim] truthfully
reported her other rape incidents to the authorities, and
thus was not lying at the preliminary hearing when she said
[Defendant] did not rape her." "Conversely, should
[Victim] revert at trial to her out-of-court story,
[Defendant] would not have needed the evidence to be able to
mount a complete defense because he could have ...