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State v. Vallejo

Supreme Court of Utah

July 29, 2019

State of Utah, Appellee,
v.
Keith Robert Vallejo, Appellant.

          On Direct Appeal Fourth District, Utah County The Honorable Judge Thomas Low No. 151401024

          Sean D. Reyes, Att'y Gen., Christopher D. Ballard, Asst. Solic. Gen., Salt Lake City, Ryan B. McBride, Christine Scott, Provo, for appellee

          Michael D. Zimmerman, Troy L. Booher, Freyja R. Johnson, Salt Lake City, for appellant

          Justice Pearce authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Petersen joined.

          OPINION

          PEARCE, JUSTICE

         INTRODUCTION

         ¶ 1 Keith Robert Vallejo appeals his convictions of ten counts of forcible sexual abuse and one count of object rape. A jury convicted Vallejo of sexually abusing two of his sisters-in-law while they lived with him and his family. Vallejo contends that his trial counsel provided constitutionally defective representation because he failed to move to sever the charges regarding each victim so that Vallejo could have two separate trials. Vallejo also claims that his counsel rendered ineffective assistance by failing to object to certain testimony. In addition, Vallejo argues that the district court erred by admitting testimony that Vallejo claims were protected by attorney-client privilege. And finally, Vallejo seeks relief because on a couple of occasions during the trial, the court and a witness referred to Vallejo's sisters-in-law as "victims." We affirm the convictions.

         BACKGROUND

         ¶ 2 Keith Vallejo and his wife Kathleen lived in Provo with their six, and later seven, children.[1] J.K. frequently spent time with Vallejo, Kathleen, and their family.

         ¶ 3 Vallejo would often "pinch" or "slap" J.K.'s buttocks. When Vallejo hugged J.K., he would often "hold [her] and start biting [her] ear, . . . and would not let go" if she tried to pull away. J.K. often fell asleep on a couch at the Vallejo home and would sometimes awake to Vallejo massaging her feet. On some occasions, he massaged higher up her legs towards her thighs.

         ¶ 4 J.K. later stayed at the Vallejo home for a week and a half. While a guest in the home, J.K. slept on a couch in the living room. One night, J.K. awoke to Vallejo partially on top of her, with his hands rubbing her breasts over her clothing. J.K. froze. She moved to see if Vallejo would stop. He stopped for a moment, but eventually resumed his touching. At one point, he slowly started to pull down J.K.'s pants to reach his hand underneath them. After J.K. moved again, he stopped long enough that she could pretend to awaken and get up.

         ¶ 5 Over the next week, on five or six different nights, Vallejo continued to touch J.K. while she was asleep or appeared to be asleep on the couch. He touched her in different ways on different nights. At times, Vallejo touched and kissed J.K.'s breasts and buttocks. Vallejo also rubbed J.K's vagina. He touched her both over and underneath her clothing.

         ¶ 6 J.K. was afraid and pretended to be asleep when Vallejo touched her. She did not report the touching to anyone at that time. At the end of the week and a half, J.K. returned home.

         ¶ 7 Vallejo sometimes spoke to his friend Rocky Steele about J.K. For example, on two or three occasions, Vallejo told Steele that J.K "was the pick of the litter" of the family. On another instance, Steele asked Vallejo about a bottle of perfume that he observed in Vallejo's truck. Vallejo said that it belonged to J.K. and while smelling it, commented, "[A]h, it just reminds me of [J.K.]."

         ¶ 8 Later that year, Kathleen's youngest sister, H.K., came to live with the Vallejos while she completed her senior year of high school. For most of that year, H.K. slept on the couch in the Vallejos's living room. Kathleen and H.K. often disagreed. H.K. regularly called her mother (Mother) and would seek her support in dealing with Kathleen.

         ¶ 9 Continuing a practice that began before H.K. moved in, Vallejo would routinely kiss H.K. on the cheek, give her long hugs, bite her ear, and slap her on the buttocks. At night, H.K. slept on the couch, often while Vallejo and Kathleen watched television near her. Vallejo typically sat next to H.K. on the bigger couch while she laid down. Kathleen sat on the smaller adjacent couch.

         ¶ 10 Vallejo would often massage H.K.'s feet while she was lying on the couch beside him. Sometimes he massaged H.K. while she was awake and other times she awoke to his massages. Over time, Vallejo "would progressively reach higher up [H.K.'s] legs and sometimes grab [her] butt, and start massaging" her buttocks. This occurred "many times." Vallejo touched her buttocks under her clothing more than ten times. One night, Vallejo massaged H.K.'s back and continued lower until he "reached his finger in between [H.K.'s] butt crack." H.K. reacted to the intrusion and Vallejo stopped.

         ¶ 11 On another occasion, H.K. awoke to Vallejo touching her breasts under her clothing. Vallejo had reached "his hand . . . up the back of [H.K.'s] shirt, and . . . was reaching around and touching [her] chest." H.K. pretended to be asleep, because she was "too afraid to do anything." H.K. testified that she was too frightened to say anything when Vallejo touched her in these ways and she typically pretended she was asleep. Vallejo touched H.K.'s chest "many" more times.

         ¶ 12 Another night, H.K. woke up on the couch to Vallejo massaging her legs and feet. Vallejo's hand then reached up her leg, under her pants, grasped her butt, and then "his finger slowly reache[d] under [her] underwear." He "slowly put[] his finger in [her] vagina, and . . . start[ed] stroking it."

         ¶ 13 After Vallejo stopped, H.K. cried. She then messaged a friend, telling her that she "need[ed] to talk to someone about the situation [she was in]." Kathleen awoke while H.K. was sending the message and reprimanded H.K. for using her phone.[2]

         ¶ 14 The next day, H.K. confided to her friend J.J. that Vallejo had "molested" her. J.J. testified that H.K. told her that her "sister's husband would come in when he thought that [H.K.] was asleep, and would start to touch her when he thought she was asleep."

         ¶ 15 A few days later, H.K. began sleeping upstairs in an unfinished bedroom out of fear that Vallejo would touch her again while she slept. H.K. stayed with the Vallejo family until she finished the school year. For the remainder of her stay, Vallejo did not touch her while she slept but continued to spank her buttocks and give her long hugs. H.K. moved to her parents' home at the end of the school year.

         ¶ 16 H.K. moved out of her parents' house when she began college. And at some point during the school year, she caught pneumonia. While H.K. was feeling poorly, Mother texted H.K. saying, "I woke up in the middle of the night and had a strong impression that you need a blessing.[3] Can you ask [friend] and one of his roommates today?"

         ¶ 17 H.K. told Mother that she had cried herself to sleep, that she did not want to talk about what was wrong, and that it had something to do with Kathleen and Vallejo. H.K. later testified, "I just felt like I should've told her the truth as to why I was crying, or why she felt like I needed a blessing, because that night I did need [a] blessing."

         ¶ 18 A few days later, H.K. and J.K. returned home for Christmas. Mother asked to talk to H.K. "about why [she] cried [herself] to sleep that night." H.K. began to cry and refused to talk with Mother. Mother asked her whether it was related to Kathleen and Vallejo. H.K. said that it was.

         ¶ 19 Because H.K. refused to disclose more, Mother called J.K. J.K. and H.K. then spoke to each other. J.K. came home and the two then talked generally about what had occurred to them. J.K. told her father (Father) "about the molestation" and the four-J.K., H.K., Mother, and Father-discussed what happened.

         ¶ 20 The sisters also disclosed the abuse to their church leader and sought guidance. The church leader told the sisters that he would contact the church's legal department and the church would "try to take care of it." While not entirely clear from the record, the church's attorneys apparently reported Vallejo's conduct to the police. A police detective eventually contacted H.K. and J.K. and sought a statement from each of them.

         ¶ 21 A church leader notified Vallejo of the allegations. After Vallejo learned of the allegations, but before charges were filed, Vallejo, Kathleen, and Vallejo's friend Steele met together at Vallejo's brother's farmhouse.[4] They spoke while waiting for Vallejo's brother-an attorney-to arrive. Steele was already aware of the allegations against Vallejo, as Kathleen had visited with him and his wife the previous day. On their way to and at the farmhouse, Vallejo discussed "the accusations and the stress of it, and the emotion of it" with Steele.

         ¶ 22 Before his brother [Brother] arrived, and in Kathleen's presence, Vallejo talked to Steele about things "that happened that weren't appropriate." Vallejo informed Steele that "he would lay on the couch with them, be on the couch with them[, ] . . . be very close with them physically sometimes." Vallejo told Steele that on one occasion J.K. sat down on Vallejo's foot on the couch and that Vallejo "started to move his foot in a way to arouse her, to stimulate her." Vallejo stated, "that he was sorry about that, and . . . that it was just dumb." Steele testified that Vallejo never directly denied that he had engaged in the conduct that led to the charges, but that he insinuated that he had not.

         ¶ 23 The State charged Vallejo with ten counts of forcible sexual abuse, second degree felonies under Utah Code section 76-5-404 (2014), and one count of object rape, a first degree felony under Utah Code section 76-5-402.2 (2014).[5] The charges regarding J.K.'s allegations and H.K.'s allegations were tried together.

         ¶ 24 Prior to trial, Vallejo argued that his farmhouse conversation was privileged because he had been seeking legal advice from Steele. The district court disagreed with that characterization and concluded that the conversation between Steele and Vallejo "was a conversation among good friends" and the attorney-client privilege accordingly did not exist. As a result, the jury heard Steele testify about his conversation with Vallejo.

         ¶ 25 During H.K.'s testimony, the judge referred to her as a "victim" while responding to an objection: "[I]t sounds like it's just contextual for how the victim responded, so overruled." Vallejo's trial counsel immediately moved for a mistrial. Vallejo's counsel argued that a limiting instruction would not ameliorate the harm, and indeed, would only "make[] things worse." Counsel preferred that the judge not give a curative instruction. The district judge denied the motion for mistrial and elected to read to the jury an instruction based on the model jury instruction on the court's neutrality in order to avoid drawing the jury's attention to his use of the word "victim."[6]

         ¶ 26 H.K's friend J.J. testified that H.K. had said her "sister's husband would come in when he thought that she was asleep, and would start to touch her when he thought she was asleep." On cross- examination, J.J. admitted that six months prior to trial, when she was talking to a prosecutor, she could not recall who had sexually abused H.K.

         ¶ 27 In his closing statement, Vallejo argued that this was evidence that J.J. had "made her story better for the trial." Vallejo did not object to this portion of J.J.'s testimony at the time, but in his motion for a new trial, he argued that her testimony was inadmissible.

         ¶ 28 Later in the trial, a police officer used the term "victim" three times while testifying. Vallejo's counsel eventually objected and stated, "That's the third time that [the police officer] used the word victim in referring to [H.K. and J.K.]," though he subsequently conceded that two of the references were not about H.K. and J.K. specifically. The prosecutor instructed the officer to not use the term victim.

         ¶ 29 The State called a clinical social worker as an expert witness. The expert used the term "victim" a total of nine times while testifying about reactions to sexual assault and misconceptions surrounding those who report sexual assault. The expert did not use "victim" to refer to H.K. or J.K. specifically, but to speak generally about individuals who suffer sexual abuse. After she had used the term three times, Vallejo's counsel asked that the expert use different language. The district court agreed. The expert followed the instruction with limited success-using the term victim six more times during the testimony, albeit she often caught herself and said client instead.

         ¶ 30 The jury found Vallejo guilty of all charges.

         ISSUES AND STANDARDS OF REVIEW

         ¶ 31 Vallejo presents five arguments on appeal.

         ¶ 32 Three of Vallejo's claims focus on his counsel's performance. Vallejo alleges that his trial counsel was ineffective because: (1) counsel did not move to sever the charges based on the conduct involving J.K. from charges based on the conduct involving H.K.; (2) counsel did not object to J.J.'s testimony as inadmissible hearsay; and (3) counsel failed to object to testimony from H.K. and Mother regarding Mother's desire that H.K. receive a blessing- which Vallejo characterizes as a "spiritual manifestation confirming . . . the truthfulness of H.K.'s allegation."

         ¶ 33 Vallejo argues that in each instance his counsel's assistance fell below the constitutional floor. When presented with a claim of ineffective assistance of counsel, "[w]e review a lower court's purely factual findings for clear error, but [we] review the application of the law to the facts for correctness." Menzies v. State, 2014 UT 40, ¶ 29, 344 P.3d 581 (alterations in original) (citation omitted).

         ¶ 34 Vallejo next argues that the communications at the farmhouse were protected by the attorney-client privilege and that the district court therefore improperly admitted the testimony. When the existence of a privilege turns on a question of law, we review for correctness. See Moler v. CW Mgmt. Corp., 2008 UT 46, ¶ 7, 190 P.3d 1250. When the existence of a privilege turns on questions of fact, we give deference to the district court's underlying fact finding and do not set those findings aside unless they are clearly erroneous.

         ¶ 35 Finally, Vallejo contends that the in-court references to J.K. and H.K. as "victim" or "victims" were improper and prejudicial. It appears that Vallejo believes that his motion for a mistrial should have been granted on account of the judge's use of that term.[7] We review a district court's denial of a motion for mistrial under an abuse of discretion standard. State v. Cardall, 1999 UT 51, ¶ 19, 982 P.2d 79. Vallejo also claims ineffective assistance of counsel arising from counsel's failure to object sooner or more often to these references to "victim"-which we review under the same standards we have discussed above. State v. Hutchings, 2012 UT 50, ¶ 8, 285 P.3d 1183; Menzies, 2014 UT 40, ¶ 29.

         ANALYSIS

         I. Ineffective Assistance of Counsel

         ¶ 36 To succeed on an ineffective assistance of counsel claim, Vallejo must demonstrate that his trial counsel's performance was deficient and that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984).

         ¶ 37 Vallejo must first "show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. This inquiry focuses on "whether counsel's assistance was reasonable considering all the circumstances." Id. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. As a result, the analysis is highly fact-intensive and context-dependent.

         ¶ 38 Our "scrutiny of counsel's performance must be highly deferential." Id. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. (citation omitted).

         ¶ 39 A deficient performance on its own is not enough, however, because the "purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation," but rather "to ensure that criminal defendants receive a fair trial." Id. Therefore, Vallejo must demonstrate prejudice by "show[ing] that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

         ¶ 40 Vallejo must make a satisfactory showing of both deficient performance and prejudice to prevail. "[I]f the defendant makes an insufficient showing on one [prong]," there is no need for us "to address both components of the inquiry." Id. at 697.

         A. Trial Counsel's Performance Was Not Deficient Because the Decision to Not Move to Sever the Charges Was, in This Instance, Objectively Reasonable

         ¶ 41 Vallejo argues that his trial counsel should have moved to sever the charges arising from the conduct involving each victim. He contends that his trial counsel's asserted reason for failing to file the motion-because he "did not think the court would grant the motion"-demonstrates that counsel lacked a tactical basis for declining to file the motion, which Vallejo offers as per se evidence of unreasonable conduct. Vallejo argues that the motion would have succeeded because he had a right to separate trials on the counts involving H.K. and those involving J.K. Vallejo alleges that counsel's failure to sever the charges prejudiced him because the prosecution was able to "rely on testimony concerning [Vallejo's] purported conduct with the other sister to obtain convictions regarding each sister" and that the prosecution would not have been able to use each sister's testimony in separate trials because the Utah Rules of Evidence would have prevented the admission of the other sister's testimony.

         ¶ 42 Vallejo must make several interrelated showings to succeed on appeal. First, he must demonstrate that under the circumstances of the case, counsel's representation fell below an objective standard of reasonableness when he failed to file the motion to sever. See Strickland, 466 U.S. at 688. Vallejo must rebut the presumption that this constituted sound trial strategy. See id. at 689. Vallejo must also demonstrate that the motion would likely have been granted had it been filed. See State v. Bond, 2015 UT 88, ¶ 63, 361 P.3d 104 ("[T]he failure of counsel to make motions . . . [that] would be futile if raised does not constitute ineffective assistance." (alterations in original) (citation omitted)). And to demonstrate prejudice, Vallejo must demonstrate that a reasonable probability exists that the outcomes of the trials would have been different had the motion to sever been filed and granted. See Strickland, 466 U.S. at 694. We need only address the first point because Vallejo fails to demonstrate that his attorney offered deficient performance by neglecting to move to sever the charges.

         ¶ 43 Vallejo argues it was unreasonable for his trial counsel to fail to file a motion to sever the charges. Vallejo points to his trial counsel's affidavit in which his counsel asserts that he did not move to sever the charges because he "did not think the court would grant the motion." Based on this affidavit, Vallejo contends that counsel lacked a "tactical basis" for failing to assert the motion to sever-and that therefore this constituted ineffective assistance of counsel.

         ¶ 44 As an initial matter, the ineffective assistance of counsel inquiry focuses on whether the counsel's actions in question were objectively reasonable, not whether the counsel had a subjectively defensible reason for taking them. See Strickland, 466 U.S. at 688. "Strickland . . . calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind." Harrington v. Richter, 562 U.S. 86, 110 (2011). Thus, it is not enough to simply say that Vallejo's counsel didn't have a tactical reason for not moving to sever the charges; rather, the question is whether a reasonable attorney could have made the same decision.

         ¶ 45 And again, Vallejo says no-that there would be no sound tactical basis for an attorney to decide not to move to sever the claims. Indeed, Vallejo argues that under the relevant statute, Utah Code sections 77-8a-1(1) and (4), and our case law, he had a right to separate trials. And he argues that in separate trials he could have admitted testimony that supported his argument that the sisters colluded, while excluding unfavorable testimony about Vallejo's conduct with the other sister.[8] Based on that, Vallejo maintains that no reasonable attorney would try the cases together.

         ¶ 46 In many cases, Vallejo might be right. There very well may be circumstances in which there is no reasonable basis for trying two cases together that could be tried separately. But this is not such a case. We can envision reasonable trial counsel opting for a single trial.

         ¶ 47 Vallejo's trial strategy focused on casting doubt on H.K.'s and J.K.'s testimony. During J.K.'s cross-examination, Vallejo emphasized several points designed to undercut J.K.'s credibility. Vallejo elicited that J.K. never said that she was "uncomfortable" to Vallejo while the abuse occurred. Vallejo explored J.K.'s asserted reasons for not reporting the abuse in an apparent attempt to undermine them. For example, even though J.K. had asserted that one of the reasons that she had never disclosed the abuse was because of fear that Vallejo might hurt her, she acknowledged that Vallejo had never ...


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