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State v. Escobar-Florez

Court of Appeals of Utah

August 8, 2019

State of Utah, Appellee,
v.
Juan Carlos Escobar-Florez, Appellant.

          Third District Court, Salt Lake Department The Honorable Randall N. Skanchy No. 071907926

          Deborah L. Bulkeley, Attorney for Appellant

          Sean D. Reyes and Jeanne B. Inouye, Attorneys for Appellee.

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

OPINION

          POHLMAN, JUDGE.

         ¶1 Juan Carlos Escobar-Florez appeals his conviction for rape of a child. He raises several claims of ineffective assistance of counsel and has moved for remand for an evidentiary hearing related to some of those claims. He also contends that the district court erroneously instructed the jury on flight and erred in denying his motion for a directed verdict. We deny his motion to remand and affirm.

         BACKGROUND[1]

         ¶2 Escobar-Florez was renting a room in the basement of a house in Salt Lake City, Utah, where his co-worker and co-worker's family also lived. One night in August 2007, Escobar-Florez raped his co-worker's thirteen-year-old stepdaughter (Victim). He moved out immediately afterward, and although he was charged with rape of a child in October 2007, he made himself scarce and was not arrested until 2016.

         ¶3 At the final pretrial conference, Escobar-Florez's trial counsel indicated that he was ready to move forward with trial. Trial counsel explained that although he had informed Escobar-Florez that two law enforcement witnesses were "both out [of] state" and "not available for trial," Escobar-Florez "want[ed] to go forward anyway." Trial counsel further stated that he would come to an agreement with the State "on how to use [their] police reports at trial." Trial counsel then noted that he told Escobar-Florez that his own "preference would be to continue the trial in light of the officers not being here," but that "it was [Escobar-Florez's] decision that he wanted to go forward."

         ¶4 During the jury-selection process, the district court, at trial counsel's request, informed the potential jurors that Spanish-language interpreters would be used, and the court asked the potential jurors to indicate whether they "might not be able to be fair to either the prosecution or the defense in light of the fact that Spanish is the primary language of several of the individuals involved in the case." No potential juror indicated in the affirmative.

         ¶5 When trial began, the prosecutor explained in her opening statement that after committing the abuse, Escobar-Florez "suddenly just disappear[ed]." The prosecutor also mentioned that the investigating detective (Detective) contacted Escobar-Florez and arranged an interview but that "Escobar-Florez didn't show up." The prosecutor further stated that Detective then went to Escobar-Florez's workplace and was told, "He doesn't work here anymore. He quit, citing he had a problem with the police."

         ¶6 Trial counsel began his opening statement by admitting that Escobar-Florez was born in El Salvador and "was in this country illegally." Trial counsel told the jury that it would be able to see the police report made by the investigating police officer (Officer). In that report, trial counsel asserted, the jury would see that Victim made statements she did not repeat later, including that she and Escobar-Florez had a boyfriend-girlfriend relationship and had sex twice. Trial counsel also offered a possible motive for Victim's accusation of abuse-she had been "out all night" and made the allegations only after being confronted by her mother (Mother).

         ¶7 Victim testified at trial that, one night in August 2007, she woke up in the middle of the night and left her basement bedroom to go to the bathroom. According to Victim, when she was leaving the bathroom to go back to sleep, Escobar-Florez was standing right outside the bathroom door, and he "grabbed [her] hand." Victim told him to "let [her] go," but instead Escobar-Florez covered her mouth and took her to his bedroom, closing the door behind them. Escobar-Florez laid Victim down on the bed and pulled her hands to her back. When he took his hand away from her mouth, Escobar-Florez told Victim "not to scream or otherwise he was going to do some harm to [her] mom." He then touched her breasts with his hand and began kissing her neck. Escobar-Florez proceeded to "put his penis inside [Victim's] vagina," causing her pain. Victim told him to stop, but he did not and "was just laughing." After he was done, Victim went back to her room and cried. Victim saw Escobar-Florez in the house the next day, but afterward she never saw him again until the court proceedings. According to Victim, her life changed "[i]n every way" and she was "all the time locked in [her] room." Victim testified that she first told a friend about the abuse and later told Mother at a park after school.

         ¶8 On cross-examination, Victim denied that she told Mother about the abuse after she had stayed out the night before. She denied that she had told the police that she and Escobar-Florez were girlfriend and boyfriend and that they had sex twice. But she admitted that, in one police interview, she said that Escobar-Florez was sitting on the couch when she exited the bathroom on the night in question.

         ¶9 Mother testified at trial that she suspected something had happened with Victim when she noticed that Victim was "different," "very emotional," and "scared." According to Mother, Victim was "not talking anymore," "not playing or going out," and "didn't leave her room." When she asked Victim what was wrong, Victim "didn't want to say anything." Mother took Victim for a car ride during which Victim told Mother about the abuse and said that Escobar-Florez threatened to harm Mother. Mother then took Victim to a clinic and the hospital. Mother testified that she noticed Victim's behavior change while Escobar-Florez was still living with them and that she did not see Escobar-Florez again after Victim revealed the abuse. Mother denied reporting that Victim told her about the abuse after Victim had stayed out all night.

         ¶10 Victim's stepfather (Stepfather) testified similarly about Victim's change in behavior. According to Stepfather, he became worried about Victim when he noticed she was "really quiet." About a week later, and within days after Escobar-Florez moved out of the house, Victim told Stepfather about the abuse. And after he moved out, Escobar-Florez no longer appeared at work even though Stepfather used to see him there "[e]very morning." Stepfather added that the family moved out of the house about three weeks after Escobar-Florez left, and he did not see him again until trial.

         ¶11 A pediatrician testified regarding an examination of Victim performed in September 2007. According to the report from that examination, Victim told Mother about the abuse several weeks after it happened and Mother and Victim stated that the abuse happened on August 8 or 9. Victim stated that on the night in question, Escobar-Florez was in the family room when she came out of the bathroom. Victim said that he grabbed her and took her to his room, where he undressed her and where "his private went in her private." When asked if it had gone in "the front private and the back private," Victim said "both." When Victim underwent a physical examination, no injuries were observed, and tests showed that she did not have any sexually transmitted diseases. The pediatrician could not confirm whether Victim had had sex. Mother also stated, according to the report from Victim's examination and as elicited on cross-examination, that the family had asked Escobar-Florez to move out, he did not want to go, and so the family moved.

         ¶12 The Division of Child and Family Services (DCFS) caseworker assigned to Victim's case also testified. According to the caseworker, Mother similarly reported to her that Escobar-Florez refused to leave the house where he was a roommate and that Mother and her family moved out instead. Mother also told the caseworker that Victim disclosed the abuse to her after having left the house in the middle of the night. Mother reported that she found Victim in the early morning hours near Escobar-Florez's workplace and that when she asked Victim why she ran away, Victim said that she wanted to get Escobar-Florez to talk to Mother about the incident.

         ¶13 The prosecution and the defense reached a stipulation regarding the unavailability of Detective and Officer. The prosecutor informed the court that "[b]ased on wanting this trial to go forward, both counsel have stipulated to just introduce the entirety of their police reports." The prosecutor represented that she had spoken with Detective and Officer and "[n]either one of them has an independent recollection of anything about the case" and "if [they] were called to testify, [they] would get on the stand and essentially read their report." In discussing how to present the police reports to the jury, trial counsel commented that he was "certainly going to be relying on [them] in [his] closing argument."

         ¶14 The district court read the stipulated facts to the jury. Those stipulated facts included that Detective and Officer "were the only officers involved in the investigation" and were "unavailable to testify" at trial; if Detective and Officer "were to testify, they would testify to what is contained in their reports"; and they "have no other memories of this case." The parties also agreed to the admission of the entirety of Detective's and Officer's police reports. After reading the stipulated facts, the court provided each juror a copy of the stipulated facts and the attached police reports. The court then took a recess to give the jurors the opportunity to review the documents.

         ¶15 Officer's police report stated that Victim said that "she and the suspect are in a relationship where they are boyfriend and girlfriend," that they had "sexual relations on 8/8/07 in the evening and again on 8/9/07," and that she "believes she may be pregnant." Detective's first police report explained, among other things, that Victim told Detective that when she came out of the bathroom on the night in question, she "saw [Escobar-Florez] sitting on a couch." That report also stated Mother told Detective that one night Victim "was gone until 9 a.m." and that when Mother "confronted" her, Victim "told her about what had happened" with Escobar-Florez. Detective's second report stated, in relevant part,

On September 4, 2007 . . . [Escobar-Florez] promised to come and see me . . . on the same day at 1800 hours. [Escobar-Florez] failed to make an appointment and at approx. 1840 hours [another officer] called and talked to [Escobar-Florez] . . . . [He] told [the officer] he would come and see me on September 5, 2007 at 1500 hours. On September 5, 2007 at approx. 0900 hours I was at [Escobar-Florez's] place of employment . . . . I was informed [Escobar-Florez] had quit his job citing problem[s] with the police . . . . The people who worked with [Escobar-Florez] told the management he was from El Salvador.

         The police reports also contained a copy of Escobar-Florez's "Permanent Resident Card," which listed Mexico as his country of birth.

         ¶16 Soon after the short recess, the State rested its case-in-chief. Escobar-Florez did not testify, and the defense called no witnesses.

         ¶17 In closing arguments, the prosecutor argued in part for conviction by pointing to the fact that Escobar-Florez left the house and quit his job. The prosecutor asserted, "[T]he thing that's important is when [Detective] . . . calls [Escobar-Florez] and says, 'I want to meet with you, come and talk with me.' And the next day [Detective] goes to [Escobar-Florez's] work after he didn't show up to talk to [Detective] and [Escobar-Florez] had quit. And said, 'I'm having problems with the police.'" The prosecutor also directed the jurors to the police reports that included Escobar-Florez's permanent resident card and argued that "this isn't one of those instances where he's here illegally and he's afraid of contact with police because he has a green card" and "[h]e's actually here legally, according to the documentation." The prosecutor continued, "So why else would you suddenly quit your job? And leave and move out of your residence? So nobody can find you. All of those things that happened are consistent with [Victim's] facts . . . ."

         ¶18 Trial counsel focused his closing argument on highlighting inconsistencies in Victim's testimony, including inconsistencies found within the police reports. For example, trial counsel pointed to Detective's report about Mother confronting Victim after being out all night and suggested that Victim "got out of trouble" by making allegations against Escobar-Florez. Trial counsel also referred to the information in the police report about Detective going to Escobar-Florez's workplace, and trial counsel argued that no evidence suggested that Detective went to Escobar-Florez's last known address or "did any additional follow-up." Trial counsel also argued that Escobar-Florez was from El Salvador, not Mexico, and so it was possible he was "working with a counterfeit green card, [and] that too would provide all kinds of justification for not wanting to talk to the police." Trial counsel further argued that the police report showed that Escobar-Florez "hadn't been [at work] for a couple of weeks" before Detective went looking for him-and "before [Victim] had even made a disclosure." Trial counsel continued, "So what is the problem with the police that [Escobar-Florez] was having? Perhaps it's completely unrelated to any of this stuff, since no attempt was made to contact [Escobar-Florez] until early September."

         ¶19 Over trial counsel's objection, the district court gave the jury an instruction on flight. That instruction stated:

Evidence was introduced at trial that the defendant may have fled or attempted to flee from the crime scene or after having been accused of the crime. This evidence alone is not enough to establish guilt. However, if you believe that evidence, you may consider it along with the rest of the evidence in reaching a ...

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