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State v. Guzman

Court of Appeals of Utah

May 24, 2018

State of Utah, Appellee,
Fernando Antonio Guzman, Appellant.

          Third District Court, Salt Lake Department The Honorable Elizabeth A. Hruby-Mills No. 141911297

          Hakeem Ishola and Carlos Navarro, Attorneys for Appellant

          Sean D. Reyes, Jennifer Paisner Williams, and Erin Riley, Attorneys for Appellee

          Judge Michele M. Christiansen authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.


         ¶1 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).[1] 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.


         ¶2 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.

         ¶3 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 kit.

         ¶4 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.

         ¶5 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."[3]

         ¶6 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."[4] 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 Defendant's motion.

         ¶7 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.

         ¶8 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.


         ¶9 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).

         ¶10 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.

         ¶11 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.

         ¶12 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).


         I. Utah Rule of Evidence 412

         ¶13 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."

         ¶14 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.").

         ¶15 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.

         The 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."

         ¶16 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 ...

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