District Court, Salt Lake Department The Honorable Mark S.
Kouris No. 151906605
Marshall M. Thompson and Diana Pierson, Attorneys for
D. Reyes and Christopher D. Ballard, Attorneys for Appellee
Kate A. Toomey authored this Opinion, in which Judges Gregory
K. Orme and Jill M. Pohlman concurred.
Carlos Walter Argueta was convicted of burglary and forcible
sexual abuse, both second degree felonies. See Utah
Code Ann. §§ 76-6-202, 76-5-404 (LexisNexis 2017).
He appeals his convictions, and we affirm.
In June 2015, Victim and her Boyfriend were socializing with
friends in their neighbor's backyard. Sometime after
midnight Victim decided to go to bed, and she returned to her
apartment while Boyfriend continued to socialize.
Victim and Boyfriend lived in a studio apartment in a
building with four apartments. Victim left her keys in her
front door lock-which automatically locked whenever the key
was removed-so that Boyfriend could enter the apartment after
she was asleep. She undressed and eventually fell asleep with
her back to the door.
Somewhere between "deep sleep and still aware,"
Victim felt someone rubbing her buttocks and stroking her
vagina. She initially thought Boyfriend was touching her, but
realized it was someone else when she heard Boyfriend say,
"Who the fuck are you?" over and over. Victim sat
up and saw Boyfriend confronting another man in the
apartment. She told Boyfriend the man had touched her and
Boyfriend pushed the man against the dresser and told Victim
to summon their neighbors.
The man tried to escape, apologized, and said that he had
been looking for a bathroom. Boyfriend and the man wrestled
into the hallway where Boyfriend tried to pin him against the
wall. The man made it out the door of the apartment building
and tried to run toward the street, but Boyfriend caught him
and, with the help of two other men, pinned him down on the
front lawn until the police arrived and arrested him. The man
According to Argueta's testimony at trial, he met Victim
and her previous boyfriend at a bar eighteen months before
the incident. They talked and drank until the bar was about
to close. Argueta gave them a ride home to the same apartment
building involved in this case, and he loaned the boyfriend
twenty dollars. The boyfriend told Argueta he could come
collect the money whenever he wanted.
Argueta testified he tried to collect the money five or six
times over the next year and a half. He stated that on the
night of this incident, he was in the area and decided to try
again to collect his twenty dollars. He went to Victim's
apartment and saw that the door was slightly open and the
keys were in the lock. He decided to put the keys inside the
apartment as a "good deed." Argueta testified he
put the keys on the dresser and as he was turning back toward
the door, Boyfriend entered the apartment.
After Argueta's arrest, a police officer (Officer) gave
Argueta his Miranda rights and had him sit on the
curb while Officer questioned Victim. Though Officer had not
asked Argueta any questions, Argueta overheard Victim saying
he had touched her, and Argueta volunteered that she was
"lying," that he met her at a bar, and that he
merely left the keys in the apartment.
At a pretrial hearing in this case, the State, under rule
404(b) of the Utah Rules of Evidence, sought to admit
evidence of several of Argueta's prior acts. The district
court ruled that although the acts were not admissible in the
State's case in chief, two of them would be admissible in
rebuttal if Argueta testified during trial "as to his
intent with regard to his entry, if any, into [Victim's]
residence." The evidence involved a 2010 incident in
which Argueta was found trespassing near another woman's
house (the trespassing incident) and a 2014 incident in which
Victim saw Argueta looking in the window of her apartment
(the peeping incident).
After a two-day trial, a jury convicted Argueta of burglary
and forcible sexual abuse, and the court sentenced Argueta to
two concurrent terms of one to fifteen years in prison.
AND STANDARDS OF REVIEW
Argueta raises several issues on appeal. First, he contends
the prosecutor violated his constitutional right to remain
silent. "Though underlying factual matters are within
the discretion of the [district] court, whether a given set
of facts gives rise to a constitutional violation is a matter
of law," which we review for correctness. State v.
Maas, 1999 UT App 325, ¶ 13, 991 P.2d 1108.
The second and third issues involve Argueta's contention
that the district court erred by admitting evidence of the
trespassing and peeping incidents under rules 404(b) and 403
of the Utah Rules of Evidence. We review the district
court's decision to admit or exclude evidence for an
abuse of discretion. State v. Lowther, 2017 UT 34,
¶ 17, 398 P.3d 1032.
Next, Argueta contends his trial counsel was ineffective
because he failed to make several renewed objections with
respect to the rule 404(b) evidence and failed to move for a
mistrial. Whether trial counsel was ineffective presents a
question of law. State v. Doutre, 2014 UT App 192,
¶ 9, 335 P.3d 366.
Finally, Argueta contends the cumulative effect of these
errors requires reversal. "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. White, 2016 UT
App 241, ¶ 14, 391 P.3d 311 (quotation simplified).
Alleged Doyle Violation
First, Argueta contends the prosecutor violated his
constitutional right to remain silent by using his silence to
impeach his testimony at trial, in violation of Doyle v.
Ohio, 426 U.S. 610 (1976). Argueta argues the prosecutor
improperly questioned him "about his post-arrest
silence" and then drew "negative inferences from
that silence throughout the remainder of the trial."
During trial, the prosecutor asked Argueta about his
interaction with the police and had the following exchange
Q: Mr. Argueta, you said that the officer said, "What
happened?" and you tried to explain. Is that correct?
Q: But everything you've just told us for the last 25
minutes you did not tell the officer, did you?
A: I told him about the keys.
Q: You told him that you put the keys inside the apartment,
Q: Didn't tell him about meeting the boyfriend?
A: He never asked. He said that he was going to read my