Direct Appeal Fourth District, Utah County The Honorable
Judge Thomas Low No. 151401024
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.
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.
2 Keith Vallejo and his wife Kathleen lived in Provo with
their six, and later seven, children. 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
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
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.
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. 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]
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
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. 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). 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."
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.
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
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
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. 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.
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
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.
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."
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.
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. 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 ...