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State v. Argueta

Court of Appeals of Utah

July 27, 2018

State of Utah, Appellee,
v.
Carlos Walter Argueta, Appellant.

          Third District Court, Salt Lake Department The Honorable Mark S. Kouris No. 151906605

          Marshall M. Thompson and Diana Pierson, Attorneys for Appellant

          Sean D. Reyes and Christopher D. Ballard, Attorneys for Appellee

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

          TOOMEY, JUDGE

         ¶1 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.

         BACKGROUND[1]

         ¶2 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.

         ¶3 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.

         ¶4 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.

         ¶5 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 was Argueta.

         ¶6 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.

         ¶7 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.

         ¶8 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.[2]

         ¶9 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).

         ¶10 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. Argueta appeals.

         ISSUES AND STANDARDS OF REVIEW

         ¶11 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.

         ¶12 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.

         ¶13 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.

         ¶14 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).

         ANALYSIS

         I. The Alleged Doyle Violation

         ¶15 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."

         A. Additional Background

         ¶16 During trial, the prosecutor asked Argueta about his interaction with the police and had the following exchange with him:

Q: Mr. Argueta, you said that the officer said, "What happened?" and you tried to explain. Is that correct?
A: Yes.
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, right?
A: Yes.
Q: Didn't tell him about meeting the boyfriend?
A: He never asked. He said that he was going to read my ...

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