State v. Kozlov

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20090372‐CA
)
v. ) FILED
) (April 12, 2012)
Konstantin Kozlov, )
) 2012 UT App 114
Defendant and Appellant. )

‐‐‐‐‐

Fourth District, Provo Department, 081401858
The Honorable Fred D. Howard
The Honorable Claudia Laycock

Attorneys: Elizabeth Hunt, Salt Lake City, for Appellant
Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for
Appellee

‐‐‐‐‐

Before Judges McHugh, Orme, and Christiansen.

CHRISTIANSEN, Judge:

¶1 Defendant Konstantin Kozlov appeals his convictions following a jury trial for
attempted rape, see Utah Code Ann. § 76‐5‐402 (2008) (rape); id. § 76‐4‐101 (attempt);
forcible sexual abuse, see id. § 76‐5‐404; and domestic violence in the presence of a child,
see id. § 76‐5‐109.1(2)(c). We affirm.
 BACKGROUND1

I. Defendant and the Victim’s Relationship2

¶2 Defendant and his friend (the roommate) met the victim when they all worked
together at McDonald’s. Subsequently, they moved into the same house, along with the
victim’s children. Prior to this arrangement, the victim and her children did not have a
permanent residence. Defendant paid the victim’s portion of the rent while she lived
with Defendant. Defendant also bought the victim and her children gifts, paid for some
of her other expenses, and bought a plane ticket for one of the victim’s children.
Defendant developed a relationship with the victim’s children, and according to the
victim, her children loved Defendant. Defendant seemed to want a romantic
relationship with the victim. Although the victim accepted his gifts and financial
assistance, she was not and did not intend to be romantically involved with him. In
fact, about a month after she moved in with Defendant, the victim married a man in
another state though the victim continued to live with Defendant, and for some time she
did not tell him that she had married.

¶3 After living with Defendant for approximately seven months, the victim decided
that, despite her financial instability, she needed to move out of Defendant’s residence
because she had become increasingly concerned that Defendant would force her into a
sexual relationship with him. According to the victim, Defendant became more
aggressive toward her, and he began to follow her, call her bad names, listen to her
phone calls, and appear at her workplace where he would remain for two or three
hours.3 One night, Defendant entered the victim’s room while she was sleeping,

1. “Because this case comes to this court after a jury trial, we view the ‘facts in a light
most favorable to the jury’s verdict’ and ‘present conflicting evidence only as necessary
to understand [the] issue[ ] raised on appeal.’” State v. Samples, 2012 UT App 52, ¶ 2 n.2
(mem.) (alterations in original) (quoting State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346).

2. Background sections I and II rely mainly on the victim’s trial testimony that was, for
the most part, uncontested.

3. Although Defendant and the victim met while working together at McDonald’s,
these particular visits appear to have occurred after Defendant’s employment had
ended at that restaurant. The McDonald’s supervisor testified that during these visits,
(continued...)

20090372‐CA 2
struggled with her, and would not leave when she asked. Thereafter, the victim and
her children moved to a new apartment for which Defendant paid the deposit.

II. Events Leading to the Charges Against Defendant

¶4 On the night of June 28, 2008, Defendant and the victim argued while talking on
the phone. Despite the victim telling Defendant not to come to her apartment, he
insisted that he was coming over and that if she did not open her door for him, he
would kick the door down. Defendant arrived at the victim’s apartment around
midnight, and when the victim said that she did not want to talk to him, he again told
her that if she did not open the door he would kick it down or go through the window.
The victim then let Defendant in but told him that she would talk with him for only five
minutes.

¶5 While she and Defendant were sitting on the stairs talking, the victim heard her
three‐year‐old child cry out. The victim went upstairs into her bedroom where her
children were sleeping and lay in the bed next to her child to calm the child. Defendant
followed the victim to the bedroom and refused to leave the room, despite the victim’s
request that he do so.

¶6 Instead of leaving, Defendant lay next to the victim on the bed and began
touching her breast over her shirt. When she told him to stop, he said, “No,” and she
slapped him.4 Defendant then grabbed her hands with one of his hands and touched
the victim’s genitals over her clothes with his other hand. The victim kept telling

3. (...continued)
the victim’s “demeanor would change”; that when Defendant would bring the victim
gifts, the victim always gave them to other crew members; and that Defendant and the
victim “would have a conversation [that] almost always was an argument.”
Additionally, the McDonald’s supervisor testified that although she told Defendant
fifteen to twenty times that he was no longer welcome at the restaurant, Defendant told
her that he could do what he wanted and continued to appear there. Finally, the
supervisor told him that “if he continued to show up, [she] was going to call the police.”

4. Up until this point, the victim’s and Defendant’s versions of the events were mostly
in agreement. Because the victim’s version was the only one given at trial, we refer to
the victim’s description of the events. Later, we discuss what Defendant told the police
and the facts that Defendant challenged when cross‐examining the victim.

20090372‐CA 3
Defendant to stop, to leave, and that she was going to call the police. Defendant
responded by saying that he did not care and that he did not believe she would call the
police. The victim also tried to get Defendant to stop touching her by kicking him,
hitting him, pulling his hair, pinching him, moving her legs, and struggling throughout
the encounter. While holding her hands and partially lying on top of her, Defendant
touched the victim’s breasts under her clothing, pulled the victim’s pajama pants down,
and touched her genitals with his hand. When the victim again told Defendant to leave,
he refused and told her he could “do whatever [he] want[ed].” While on top of and
between the victim’s legs, Defendant removed his pants and attempted to penetrate the
victim’s vagina with his penis. However, Defendant was unable to maintain an
erection, so his attempt to have intercourse with the victim was unsuccessful.
Defendant also grabbed the victim’s jaw to try to kiss her and told her that he loved her,
to which the victim responded that she did not care. Defendant then moved next to the
victim, grabbed the victim’s right hand, and forced her to touch his penis.

¶7 The victim’s seven‐year‐old child, who was asleep in the same bed until that
point, then woke up and said, “Mommy, are you okay?” When Defendant released the
victim upon hearing the child, the victim grabbed her phone, which had previously
been out of her reach, and called the police. Defendant put his pants back on, went
downstairs, and waited for the police. The victim followed him and stood in the door
frame of her house until the police arrived.

III. Defendant’s Interrogation5

¶8 Officers Stuart Fore and Shauna Lee Greening responded to the victim’s
complaint to the dispatcher that Defendant would not leave her residence. After
speaking with the victim, Officer Fore approached Defendant, who had been waiting
with Officer Greening. Officer Fore then advised Defendant of his rights pursuant to
Miranda v. Arizona, 384 U.S. 436 (1966), stopping after each right to ask Defendant if he
understood. Officer Fore also answered Defendant’s question about the role of an
attorney. After Defendant acknowledged that he understood his rights, Defendant
communicated with and responded to Officer Fore’s questions in English. Specifically,
the officer asked about Defendant’s relationship with the victim and about his version
of what had happened earlier that night. Officer Fore then drove Defendant to the
police station, which took approximately two minutes.

5. These facts were presented at hearings and in other record evidence, such as the
recording the police made of the interrogation.

20090372‐CA 4
¶9 At the police station, Defendant was placed in an interrogation room where he
remained in total for approximately ninety minutes, including approximately thirty
minutes when he was left in the room alone. At the beginning of the interrogation,
Officer Tami Kogianes asked Defendant if he could write in English, to which
Defendant responded, “Yes.” Officer Kogianes gave Defendant an opportunity to
provide a written explanation of what happened, but Defendant refused to do so. After
leaving Defendant alone for approximately twenty‐five minutes, Officers Kogianes and
Fore reentered the interrogation room. As the interrogation began, Officer Kogianes
asked Defendant if his rights had previously been read to him. Though Defendant told
the officer that he had previously been advised of his Miranda rights, Officer Kogianes
again advised Defendant of his rights—albeit in a fairly quick manner. Officer
Kogianes then asked, “Do you wish to speak to me?” Defendant responded in the
affirmative.

¶10 Both officers were present throughout the interrogation, but Officer Kogianes did
the majority of the questioning. Because of the sexual nature of the questions, Officer
Kogianes asked Defendant if he would be more comfortable speaking with a male
officer, such as Officer Fore. Defendant responded, “No, I can speak to you.” The
officers told Defendant that they wanted him to explain his side of the story. During
the interrogation, the officers asked questions in English. For the most part, Defendant
appeared to understand the officers’ use of the English language and responded
appropriately to the officers’ questions.

¶11 In response to questions, Defendant stated that he had not touched the victim’s
genitals, had not touched her breasts under her shirt, and had not removed either his or
her pants. However, he stated that he had touched the victim’s breasts on top of her
shirt, touched her shoulders, tried to kiss her, and grabbed her hand when she tried to
slap him. Defendant did not answer when Officer Kogianes asked him if he had an
erection. When Officer Kogianes finally told him the specifics of the victim’s
allegations, Defendant did not change any of the details of the story he reported to the
officers. Defendant also told the officers that he had not previously had a sexual
relationship with the victim and that she was angry with him. Following the
interrogation, the State charged Defendant with attempted rape, forcible sexual abuse,
sexual battery, and domestic violence in the presence of a child.

IV. Motion to Suppress

20090372‐CA 5
¶12 Before trial, Defendant moved to suppress the statements he made to the officers,
alleging that the officers failed to properly advise him of his Miranda rights in the
Russian language and failed to ensure that Defendant had knowingly and voluntarily
waived his Miranda rights before questioning him. Both the written motion and
Defendant’s trial counsel’s arguments during the suppression hearing focused on
whether Defendant sufficiently understood the Miranda rights that were given to him in
English. In granting Defendant’s motion, the court stated,

Noting the record in this matter, as a whole, the
[c]ourt is unpersuaded that the State has met its burden in
establishing that [D]efendant knowingly and voluntarily
waived his Miranda rights before questioning by officers,
and particularly the legal significance of such rights as to an
uninformed alien and, therefore, the [c]ourt grants the
defendant’s motion and the statements made by him to the
officers are suppressed.

¶13 The court asked Defendant’s trial counsel to prepare a written order setting forth
the court’s ruling. However, no such order appears in the record. After the ruling, the
State informed the trial court and Defendant that if Defendant’s testimony at trial
differed from the statements he had given to officers, the State intended to use those
statements in an effort to impeach Defendant at trial. See generally State v. Troyer, 910
P.2d 1182, 1190 (Utah 1995) (“With regard to the State’s ability to introduce [the
defendant]’s statements into evidence for the sole purpose of impeaching his credibility,
the United States Supreme Court has held that ‘although statements taken in violation
of only the prophylactic Miranda rules may not be used in the prosecution’s case in
chief, they are admissible to impeach conflicting testimony by the defendant.’” (quoting
Michigan v. Harvey, 494 U.S. 344, 350‐51 (1990))).

V. Jury Trial, Cross‐Examination of the Victim, and Defendant’s
Decision Not to Testify

¶14 A jury trial was held in December 2008. The State presented testimony from the
victim, an officer, and Defendant’s supervisor at McDonald’s. Although the victim’s
version of events was the only one given at trial, Defendant’s trial counsel challenged
the victim’s general credibility and trial testimony during a thorough cross‐
examination.

20090372‐CA 6
¶15 Defendant’s trial counsel’s cross‐examination revisited the victim’s living
arrangement and relationship with Defendant. The victim acknowledged that she had
decided to move in with Defendant despite being aware of his romantic feelings and
that she accepted his gifts throughout their relationship. The victim agreed that she was
not fearful of being in Defendant’s presence and that she allowed her children to
establish a close relationship with him. The victim also acknowledged the sexually‐
suggestive content of some text messages she exchanged with Defendant and that she
had never sought a protective order due to her concern that such an order may have a
negative impact on Defendant’s immigration status.

¶16 During cross‐examination, Defendant’s trial counsel questioned the victim about
her version of events but focused on the events surrounding the attack rather than on
the attack itself. For example, Defendant’s trial counsel asked the victim to verify what
time Defendant arrived, what he said before she allowed him to enter her residence,
why the victim let him in rather than calling the police, and why she would let him in
with her children present. Defendant’s trial counsel also asked the victim to verify
which person led up the stairs and why she did not call the police when Defendant
refused to leave the bedroom where her children were sleeping. Defendant’s trial
counsel questioned the victim about whether her two children in the king‐sized bed
slept through the encounter. In response to counsel’s questions, the victim explained
the location of her cell phone during the attack and what she told the dispatcher when
she called to request help. Finally, the victim explained that Defendant opened the door
and waited for the police to arrive and that she made a statement to the police when
they arrived.

¶17 After the State rested, Defendant’s trial counsel informed the trial court that after
a lengthy conversation with Defendant, “he . . . opted not to testify.” The trial court
then inquired whether trial counsel had advised Defendant of his right to testify. In
response, Defendant’s trial counsel stated,

Yes, this is completely his decision. I could never tell him
yes or no in terms of testifying. That’s his choice. I can
advise him on it, but it’s ultimately his choice. I can never
refuse to put him on or force him to take the stand and so he
and I have discussed it and he’s decided . . . not to testify.

20090372‐CA 7
The court then questioned Defendant directly to determine if counsel had advised him
of his right to testify and whether Defendant had decided not to do so. The Defendant
responded “yes” to each question.

¶18 The defense called only one witness at trial—Defendant’s roommate. The
roommate testified that for several months he lived with the victim, her children, and
Defendant, who had been the roommate’s friend prior to the two becoming roommates.
The roommate also testified that generally the victim was happy to accept Defendant’s
frequent gifts but sometimes refused them. The roommate testified that on a few
occasions the victim, her children, and Defendant would go to McDonald’s together and
that the roommate sometimes joined them. The roommate stated that the victim and
Defendant had a pretty good relationship but sometimes they argued and other times
playfully hit each other. The roommate’s only testimony regarding the attack was that
he had dropped Defendant off at the victim’s apartment and later received a text from
the victim asking the roommate to come and get Defendant. The roommate also
testified that the victim had told him that she did not want to press charges against
Defendant. On cross‐examination, the roommate acknowledged that while he lived
with Defendant and the victim, the roommate never saw them kiss or hold hands. The
roommate also explained that he shared a car with Defendant and that when the
roommate had the car, the victim would provide transportation for Defendant in her
car.

VI. Closing Arguments

¶19 Defendant’s closing argument focused on whether the jury should believe the
victim’s version of events. Defendant’s trial counsel stated, “[I]f you have any doubts
as to th[e] relationship as [the victim] has described it to you, then I argue to you [that]
you can have doubts as to her explanation or description as to what she claimed
happened that night.” Defendant’s trial counsel argued that the victim’s
characterization of the prior relationship between the two was unbelievable because
Defendant had assisted the victim in moving out, the victim allowed Defendant to
spend time with her children, and the victim had not immediately informed Defendant
when she married. Defendant’s trial counsel also argued that no physical evidence
corroborated the victim’s version of a violent and vicious attack, other than one bruise;
that the victim had not initially told Officer Greening that the victim’s seven‐year‐old
child woke up during the attack; that the victim would not have waited for the police
with her door open and Defendant outside if he had just attacked her; that the victim
had not called the police earlier; and that it would be difficult for Defendant to hold the

20090372‐CA 8
victim’s “hands together and simultaneously be[] able to pull down her pants, be[] able
to touch her, be[] able to do all these things while he’s holding her down.”

¶20 In rebuttal, the State argued that it was physically possible for a strong man like
Defendant to hold this victim down and rather quickly do the things she described. The
State further argued that the victim did not want Defendant to get into trouble but
wanted him out of her apartment and that Defendant was able to stay in the victim’s life
because he continued to support her financially.

¶21 During its closing argument, the State made three statements that Defendant
now challenges on appeal. In the first challenged statement (the punch statement), the
State declared,

Commission of domestic violence in front of a child is
[jury instruction] No. 10. All of these [of]fenses are domestic
violence offenses and an assault is a domestic violence
offense. By grabbing her and holding her down against her
will, by punching her and causing this bruise, he can also
commit an assault which we did not charge because that is
part of the other offenses as well.

(Emphasis added.) In the second challenged statement (the future harm statement), the
State commented,

[Defense counsel] closed by saying that this is an
important event in [Defendant]’s life. Please don’t forget
there [are] two other parties here coming before you seeking
justice. [The victim] that was brutally and offensively
attacked in this matter, touched in a way, an offensive way
that nobody should have to go through. I don’t care if
you’re a woman. I don’t care if you’re a man. Nobody
should have to be touched in a way like this. She’s coming
here for justice as well and asking for you to see it for what it
is and understand, again, this is not TV. We deal with
people that live dysfunctional lives and are vulnerable,
terribly, terribly, vulnerable to be taken advantage of by
somebody like [Defendant].

20090372‐CA 9
 Second is the State. This is an individual that
brazenly has done this, arrogantly done this and does other
things arrogantly. This is an individual that the State is
deeply concerned is going to do this again, potentially do
this again, not learn from his mistakes. I can’t do anything
to change [the victim’s] situation other than counseling, but I
have a duty and what the judicial system is about is to make
sure that he is diverted in his life, his behaviors so this
doesn’t happen again and that’s what a conviction is about.
Thank you.

Finally, in the third challenged statement (the crisis statement), the State argued,

Why in the world would [the victim] want to make
up something to put herself through this ordeal? Why in the
world would she need to say anything else happened other
than he hit me, he held me down? It’s a crime in Utah to be
in somebody’s house and then be told to get out and refuse
to do that with the intent to commit any type of crime. Even
holding her down would be a bigger offense. No reason for
her to push everything in her life to crisis to say something
happened that didn’t.

¶22 After the jury had left to begin deliberating, Defendant’s trial counsel stated,

I wanted to make an objection to [the State]’s closing
argument, the very end of the closing argument. [The State]
commented on preventing this from happening again for
[Defendant]. [The State] was suggesting future behavior for
[Defendant]. I argue that’s improper argument. It’s
i[n]flammatory and I would just make an objection for the
record on that.

The State asked for permission to respond to Defendant’s trial counsel’s objection. The
court stated that it believed that the objection was waived but allowed the State to
respond. The State then commented,

20090372‐CA 10
 Well, and I think just on the record it might be beneficial.
The only reason I went into that was because [Defendant’s
trial counsel] asked to consider the consequences to this man
and the future impact. The only reason I mentioned that is
because she raised that issue to consider the impact on those
two other issues.

The court responded, “All right. Your record is noted.” Then the court asked, “Do we
have any other legal questions or concerns?” To which Defendant’s trial counsel
responded, “No, I just wanted to make a record of that objection.”

VII. Conviction and Sentence

¶23 The jury found Defendant guilty of attempted rape, see Utah Code Ann. § 76‐5‐
402 (2008); id. § 76‐4‐101; two counts of forcible sexual abuse, see id. § 76‐5‐404; and
domestic violence in the presence of a child, see id. § 76‐5‐109.1(2)(c). The jury found
Defendant not guilty on the charge of sexual battery, see id. § 76‐9‐702(3). Following the
trial, Defendant’s trial counsel withdrew and post‐trial counsel was appointed, who
represented Defendant through his sentencing in March 2009.

VIII. Appeal and Rule 23B Remand

¶24 Following sentencing, Defendant appealed his convictions through his present
counsel (appellate counsel) and claimed, inter alia, that his trial and post‐trial counsel
performed ineffectively when they failed to properly investigate and present evidence
about “whether [Defendant]’s left arm was impaired at the time of the alleged assault”
and when they “fail[ed] to prepare findings of fact and conclusions of law concerning
the scope of the trial court’s ruling on [Defendant]’s motion to suppress.” On
Defendant’s motion, this court remanded the case to the district court (the 23B court)
pursuant to rule 23B of the Utah Rules of Appellate Procedure to make findings about
trial and post‐trial counsel’s alleged “fail[ure] to investigate and/or present evidence
concerning . . . [Defendant’s] left arm.” See generally Utah R. App. P. 23B(a), (c), (e).
This court expressly denied Defendant’s request for a 23B hearing on Defendant’s
ineffective assistance claim related to the motion to suppress.

¶25 Upon remand, the parties conducted discovery, and a new judge was assigned to
the case after the original judge recused due to a conflict with the State’s expert. On
July 8, 2010, the 23B court held a hearing to determine what evidence would be allowed

20090372‐CA 11
at the 23B hearing. Although not within the scope of the 23B remand, during this
hearing, Defendant’s appellate counsel urged the 23B court to address the scope of
Defendant’s motion to suppress, including the voluntariness of Defendant’s confession.
Despite its recognition that it was going beyond the scope of the remand, the 23B court
addressed this issue. The 23B court determined that the motion to suppress addressed
only whether Defendant knowingly and voluntarily waived his Miranda rights but did
not otherwise address the voluntariness of Defendant’s statements to the officers.
Additionally, based upon its review of the recorded interrogation, the 23B court
determined that Defendant was not coerced into answering the officers’ questions in
violation of his Fifth Amendment rights but instead voluntarily gave his statement to
the officers.

¶26 The following day, before the evidence was presented, the 23B court addressed
the State’s proposed use of Defendant’s statements made during the interrogation to
impeach Defendant’s expert, Dr. Rothfeder. As the 23B court was unclear about the
scope of this expert’s proposed testimony, the 23B court presented the parties two
alternative rulings on the issue of impeachment. First, the 23B court relied on James v.
Illinois, 493 U.S. 307 (1990), to determine that Defendant’s statements could not be used
to impeach the expert’s testimony if the expert testified regarding his own observations
of Defendant. See id. at 310, 320. Second, the 23B court relied on Wilkes v. United States,
631 A.2d 880 (D.C. Cir. 1993), cert. denied, 115 S. Ct. 143 (1994), to determine that

if [the expert’s] assessment of . . . [D]efendant’s condition or
whatever [the expert] testif[ies] about is based on statements
that [Defendant] makes or made to [the expert] about
[Defendant’s] physical condition at the time of the events
that led to this trial, and the [expert has] relied upon . . .
[D]efendant’s statements about his condition at that time, . . .
the State would be allowed to bring in . . . [D]efendant’s
statements to impeach [Defendant’s] statements made to the
doctors and to clarify the [expert’s] testimony about their
reliance upon those statements and the[ ] expert[’s] opinion
as to . . . [D]efendant’s physical state at that time.

Cf. id. at 890‐91 (“[W]hen a defendant offers the testimony of an expert in the course of
presenting an insanity defense and the expert’s opinion is based, to any appreciable
extent, on statements made to the expert by the defendant, the government may offer

20090372‐CA 12
evidence excluded under Miranda.”). Because of this ruling, Dr. Rothfeder did not
testify at the 23B hearing.

¶27 The 23B court then spent three days taking evidence and listening to testimony
regarding Defendant’s claim that his attorneys conducted inadequate investigations
into a possible defense, i.e., his arm injury. The 23B court issued detailed findings upon
which it based its conclusion that both trial and post‐trial counsel’s “representation did
not fall below an objective standard of reasonableness.”

ISSUES AND STANDARDS OF REVIEW

¶28 Defendant first claims that his convictions should be reversed because the State
made three improper statements during its closing argument. “We review a trial
court’s handling of claimed prosecutorial misconduct for an abuse of discretion.” State
v. King, 2010 UT App 396, ¶ 13, 248 P.3d 984. To the extent that Defendant did not
preserve his claims before the trial court, he must establish plain error, ineffective
assistance of counsel, or exceptional circumstances to warrant review by this court. See
State v. Low, 2008 UT 58, ¶ 19, 192 P.3d 867. Each basis for such review of an
unpreserved issue presents a legal question that we review for correctness. See State v.
Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (“An ineffective assistance of counsel claim raised for
the first time on appeal presents a question of law.”); State v. Candedo, 2008 UT App 4,
¶ 9, 176 P.3d 459 (mem.) (determining as a matter of law whether the exceptional
circumstances exception applied), aff’d, 2010 UT 32, ¶ 2, 232 P.3d 1008; State v. Smit, 2004
UT App 222, ¶ 7, 95 P.3d 1203 (“Plain error is a question of law reviewed for
correctness.”).

¶29 Defendant also claims that both his trial and post‐trial counsel performed
ineffectively by failing to adequately investigate his arm injury and that his trial counsel
performed ineffectively by failing to clarify the scope of the motion to suppress before
advising him not to testify or by failing to request that his statements be suppressed
because they were involuntarily made in violation of his Fifth Amendment rights
provided by the United States Constitution. Defendant’s claim “presents a question of
law” that we review for correctness. See Clark, 2004 UT 25, ¶ 6. However, if a trial court
has previously reviewed the ineffective assistance of counsel claim, an appellate court is
“free to make an independent determination of a trial court’s conclusions[, though t]he
factual findings of the trial court . . . shall not be set aside on appeal unless clearly
erroneous.” State v. Templin, 805 P.2d 182, 186 (Utah 1990) (citations omitted).

20090372‐CA 13
¶30 Finally, Defendant argues that the 23B court made significant legal and factual
errors. We review the 23B court’s factual findings for clear error and its legal
conclusions for correctness. See id.

ANALYSIS

I. Prosecutorial Misconduct Claim

¶31 Defendant asserts that the State made three improper statements during its
closing argument. According to Defendant, the improper statements constitute
prosecutorial misconduct, which requires reversal.

A. Preservation

¶32 “We generally will not consider an issue unless it has been preserved for appeal.
An issue is preserved for appeal when it has been ‘presented to the district court in such
a way that the court has an opportunity to rule on [it].’” Patterson v. Patterson, 2011 UT
68, ¶ 12, 266 P.3d 828 (alteration in original) (citations omitted). “This requirement puts
the trial judge on notice of the asserted error and allows for correction at that time in the
course of the proceeding.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801.
“For a trial court to be afforded an opportunity to correct the error ‘(1) the issue must be
raised in a timely fashion[,] (2) the issue must be specifically raised[,] and (3) the
challenging party must introduce supporting evidence or relevant legal authority.’” Id.
(alterations in original) (quoting Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48,
¶ 14, 48 P.3d 968). “Issues that are not raised at trial are usually deemed waived.” See
id.

¶33 “While we generally will not examine the State’s closing argument [for
misconduct] if the defendant failed to timely object to it, we will do so if the defendant
states that the failure to object was due to ineffective assistance of counsel,” State v.
Nelson‐Waggoner, 2004 UT 29, ¶ 30, 94 P.3d 186 (citation omitted), plain error on the part
of the trial court, see State v. Calliham, 2002 UT 86, ¶ 62, 55 P.3d 573, or exceptional
circumstances. See State v. Low, 2008 UT 58, ¶ 19, 192 P.3d 867.

¶34 Defendant clearly did not preserve his prosecutorial misconduct claims for either
the punch statement or the crisis statement. As for the future harm statement,

20090372‐CA 14
Defendant did not sufficiently preserve the arguments he now makes on appeal because
he did not make a timely objection, see 438 Main St., 2004 UT 72, ¶ 51, did not request
that the court rule on his objection, and did not request the specific relief he now
requests on appeal, see State v. Briggs, 2006 UT App 448, ¶ 4, 147 P.3d 969 (mem.) (“Utah
courts require specific objections in order to bring all claimed errors to the trial court’s
attention to give the court an opportunity to correct the errors if appropriate. Although
[the d]efendant brought the alleged violation . . . to the court’s attention, by failing to
state a legal basis for his objection or request any specific relief, [the d]efendant did not
give the court an opportunity to correct the error[].” (third alteration in original)
(citation and internal quotation marks omitted)). Thus, we review Defendant’s
challenges to the prosecutor’s statements only if Defendant can establish plain error,
ineffective assistance of counsel, or exceptional circumstances. See Low, 2008 UT 58, ¶
19

¶35 “To prevail under plain error review, a defendant must demonstrate that [1] an
error exists; [2] the error should have been obvious to the trial court; and [3] the error is
harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable
outcome.” Id. ¶ 20 (alterations in original) (internal quotation marks omitted). The next
exception to the preservation requirement is where trial counsel’s failure to preserve the
issue in the trial court is the result of ineffective assistance of counsel. See id. ¶ 19. The
establishment of ineffective assistance of counsel requires a showing (1) that counsel’s
failure to preserve the issue fell below an objective standard of reasonable professional
judgment and (2) that counsel’s deficient performance was prejudicial. See State v.
Munguia, 2011 UT 5, ¶ 13, 253 P.3d 1082. The last exception to the preservation
requirement involves “exceptional circumstances, [which] is a concept that is used
sparingly, and properly reserved for truly exceptional situations, for cases . . . involving
rare procedural anomalies.” State v. Alfatlawi, 2006 UT App 511, ¶ 44, 153 P.3d 804
(omission in original) (internal quotation marks omitted); see also State v. Dunn, 850 P.2d
1201, 1209 n.3 (Utah 1993). “Furthermore, the exceptional circumstances doctrine is
‘reserv[ed] for the most unusual circumstances where our failure to consider an issue
that was not properly preserved for appeal would have resulted in manifest injustice.’”
Alfatlawi, 2006 UT App 511, ¶ 44 (alteration in original) (citation omitted).

¶36 First, the challenges Defendant has raised to the three statements do not fit the
narrowly defined exceptional circumstances exception, and we will not consider this
exception further. See id.; see also State v. Carter, 776 P.2d 886, 888 (Utah 1989) (“[An
appellate court] need not analyze and address in writing each and every argument,
issue, or claim raised and properly before [the court] on appeal. Rather, it is a maxim of

20090372‐CA 15
appellate review that the nature and extent of an opinion rendered by an appellate court
is largely discretionary with that court.”).

¶37 Second, while they are different concepts, to prevail on appeal, both plain error
and ineffective assistance of counsel require a showing that the error or deficiency of
which Defendant complains resulted in harm to Defendant. See Low, 2008 UT 58, ¶ 43
(“‘Th[e] harmfulness test [in a plain error analysis] is equivalent to the prejudice test
applied in assessing claims of ineffective assistance of counsel.’” (citation omitted)).
Likewise, to establish prosecutorial misconduct, Defendant must prove both that “the
[prosecutor’s] remarks call[ed] to the [jury’s] attention . . . matters which they would
not be justified in considering in determining their verdict, and” that the jury, “under
the circumstances of the particular case, [was] probably influenced by those remarks.”
State v. Ross, 2007 UT 89, ¶ 54, 174 P.3d 628 (internal quotation marks omitted). Thus, to
determine if the relevant exceptions to the preservation rule apply to allow our review
of the alleged errors and when considering a prosecutorial misconduct claim in the first
instance, the defendant must be able to show prejudice to prevail.

¶38 Under the facts of this case, Defendant cannot meet that burden with respect to
either the punch statement or the future harm statement and cannot establish that the
crisis statement was so improper that such impropriety would be obvious to the trial
court or that counsel’s failure to timely object demonstrated deficient performance.

B. No Prejudice Established for the Punch or Future Harm Statements

1. The Punch Statement

¶39 Defendant asserts that the State misrepresented the evidence by claiming that
Defendant bruised the victim by punching her. The State concedes that no evidence was
presented during the trial to support the prosecutor’s statement. Nevertheless,
Defendant’s prosecutorial misconduct claim fails because he has not demonstrated that
this misstatement caused him prejudice. As discussed above, when considering
whether the misstatement should have been obvious to the trial court or whether
Defendant’s trial counsel’s failure to timely object qualifies as ineffective assistance of
counsel, Defendant must show that he was prejudiced. See State v. Low, 2008 UT 58, ¶
43, 192 P.3d 867; see also Ross, 2007 UT 89, ¶ 17 (explaining the requirements to establish
a plain error claim); State v. Kelley, 2000 UT 41, ¶ 25, 1 P.3d 546 (explaining the
requirements to establish an ineffective assistance of counsel claim).

20090372‐CA 16
¶40 We are persuaded that Defendant was not prejudiced by the “punch”
misstatement for two reasons. First, the jury heard the evidence at trial and was aware
that any bruising the victim suffered was alleged to have come from a pinch rather than
from a punch. Importantly, the jury was instructed that “arguments of lawyers are not
evidence.” The jury instructions stated that closing arguments “are not evidence but
are given to assist you in evaluating the evidence. The attorneys also are permitted to
argue, to characterize the evidence, and to attempt to persuade you to a particular
verdict. You may accept or reject those arguments as you see fit.” Thus, because the
jury had only heard evidence that the victim’s bruising could have been caused by a
pinch,6 and the jury was instructed that the State’s closing argument were not evidence,
we cannot say that Defendant was prejudiced by the State’s misstatement.

¶41 Second, to find him guilty of the charged offenses, the jury was not required to
find that Defendant caused the victim any particular bodily injury. In fact, causing
bodily injury was not an element the State was required to prove to convict Defendant
of attempted rape, forcible sexual abuse, or even domestic violence in the presence of a
child. The attempted rape charge required the jury to find that Defendant took a
substantial step toward and intended to have nonconsensual sexual intercourse with
the victim. See Utah Code Ann. § 76‐5‐402(1) (2008) (rape); id. § 76‐4‐101(1) (attempt).
The forcible sexual abuse convictions required the jury to find that Defendant
“touche[d] the anus, buttocks, or any part of the genitals of another, or touche[d] the
breast” of the victim without her consent and “with [the] intent to cause substantial
emotional or bodily pain . . . or . . . to arouse or gratify [his] sexual desire.” See id. § 76‐
5‐404(1). Moreover, attempted rape and forcible sexual abuse are each a qualifying
domestic violence offenses pursuant to the definition of “domestic violence.” See Utah
Code Ann. § 77‐36‐1(4) (Supp. 2011);7 Utah Code Ann. § 76‐5‐109.1(2)(c) (2008). The jury
found that Defendant committed attempted rape and forcible sexual abuse and that the
State proved that children were present in the same bedroom where those acts

6. Although Defendant did not object to the statement at the time it was made by the
State, counsel did respond during her closing argument that the bruise came from a
pinch and that the jury should examine the photographs received as evidence during
the trial to determine if the bruise was caused the night of the alleged attack.

7. Although other portions of this statute were amended in 2010 and 2011, the
definition of domestic violence did not change from the previous version in effect at the
time of Defendant’s actions. See Utah Code Ann. § 77‐36‐1 amendment notes (Supp.
2011). We cite the current version for the reader’s convenience.

20090372‐CA 17
occurred. Thus, the evidence that Defendant bruised the victim, whether by pinch or by
punch, was not necessary to prove any of the elements of the charged offenses.
Therefore, any misstatement by the State that Defendant punched the victim rather than
pinched her was not prejudicial.

2. The Future Harm Statement

¶42 As Defendant has recognized, the future harm statement was by far the most
egregious statement the State made during its closing argument. However, even if we
assume that Defendant preserved his challenge to this statement and that he could
demonstrate that the statement was improper,8 we agree with the State that the
statement was harmless beyond a reasonable doubt.9 See State v. Ross, 2007 UT 89, ¶ 54,
174 P.3d 628.

¶43 In reviewing whether the jury was influenced by the statement, we consider “the
circumstances of the case as a whole.” See State v. Troy, 688 P.2d 483, 486 (Utah 1984).
In our review, we may consider the strength of the evidence against Defendant, when
and under what circumstances the statement was made, whether defense counsel had
an opportunity to respond to the improper statement, the purpose of the statement and

8. “The test of whether the remarks made by counsel are so
objectionable as to merit a reversal in a criminal case is, did
the remarks call to the attention of the jurors matters which
they would not be justified in considering in determining
their verdict, and were they, under the circumstances of the
particular case, probably influenced by those remarks.”
State v. Ross, 2007 UT 89, ¶ 54, 174 P.3d 628 (citation omitted).

9. Under the plain error and ineffective assistance of counsel claims, Defendant has the
burden to show that the error was prejudicial. See State v. Calliham, 2002 UT 86, ¶ 62, 55
P.3d 573; State v. Kelley, 2000 UT 41, ¶ 25, 1 P.3d 546; cf. Ross, 2007 UT 89, ¶ 54 (stating
that to establish prosecutorial misconduct the defendant must prove, inter alia, that the
jury, “under the circumstances of the particular case, [was] probably influenced by th[e
prosecutor’s improper] remarks”). However, “[i]f prosecutorial misconduct is
established, the State must show that the error was harmless beyond a reasonable
doubt.” Ross, 2007 UT 89, ¶ 54. It follows that if the State can “show that the error was
harmless beyond a reasonable doubt,” see id., Defendant would be unable to establish
that the error was prejudicial.

20090372‐CA 18
its effect on the issues in the case, and “whether the trial court gave a curative
instruction,” State v. King, 2010 UT App 396, ¶ 23, 248 P.3d 984 (internal quotation
marks omitted). See also Ross, 2007 UT 89, ¶¶ 54, 57‐58.

¶44 We conclude that the future harm statement was not prejudicial because, as the
State argues, the statement could not have negatively impacted the jury. See Ross, 2007
UT 89, ¶ 54. By the very nature of the statement, if the jury did not believe that
Defendant had committed the charged offenses in this instance, there would be no
reason for the jury to find him guilty solely to prevent him from committing similar acts
in the future.

¶45 Defendant argues that the future harm statement was prejudicial because the
evidence against him, consisting mainly of the victim’s incredible testimony, was weak.
“‘If proof of defendant’s guilt is strong, the challenged conduct or remark will not be
presumed prejudicial.’ Likewise, in a case with less compelling proof, this Court will
more closely scrutinize the conduct.” Troy, 688 P.2d at 486 (citation omitted). Although
Defendant attacked the victim’s general credibility, the victim’s testimony about
Defendant’s actions during the attack, which was the basis for the convictions, was
unchallenged by any conflicting testimony regarding the events. Furthermore, the
victim’s testimony of related events strongly supports the convictions. Therefore, we
determine that the State presented strong evidence that Defendant committed the
charged offenses.

¶46 Although Defendant did not have an opportunity to respond to the statement
because it was made in the State’s rebuttal closing argument, the future harm statement
was made in response to Defendant’s plea to the jury to consider the effect that a
conviction would have on Defendant’s life. Furthermore, the discussion about future
harm to either Defendant or the victim did not impact what was contested at trial and
what was required to be proven by the State beyond a reasonable doubt. See Ross, 2007
UT 89, ¶ 57 (evaluating prejudice in a prosecutorial misconduct claim by considering
whether the remarks addressed “the main issue in the case”). Finally, as discussed with
the punch statement, the jury was instructed that closing arguments were not evidence
and could be accepted or rejected by the jury.10 See King, 2010 UT App 396, ¶ 23

10. Defendant argues that because the jury instructions allowed jurors to consider a
(continued...)

20090372‐CA 19
(evaluating prejudice in a prosecutorial misconduct claim by considering, inter alia,
“whether the trial court gave a curative [jury] instruction”). Therefore, under the
circumstances of this case, any error was harmless beyond a reasonable doubt.

C. The Crisis Statement

¶47 Defendant next argues that the State’s closing argument was improper because
there was no direct evidence presented at trial to support the State’s argument that the
victim had “[n]o reason . . . to push everything in her life to crisis to say something
happened that didn’t.” In reviewing statements made during closing arguments, the
supreme court has recognized,

Our review of a prosecutor’s conduct must also take
into account that “[a] prosecutor has the duty and right to
argue the case based on the ‘total picture shown by the
evidence or the lack thereof.’” Furthermore, “[c]ounsel for
both sides have considerable latitude in their closing
arguments. They have the right to fully discuss from their
perspectives the evidence and all inferences and deductions
it supports.”

State v. Ross, 2007 UT 89, ¶ 55, 174 P.3d 628 (alterations in original) (citations omitted).

¶48 Even though the victim did not directly state that her life had been pushed into a
crisis as a result of the sexual assault allegations she made against Defendant, the State’s
crisis remark was a reasonable inference about the victim’s situation given the evidence
that was presented at trial. Crisis is defined as “an emotionally significant event or
radical change of status in a person’s life”; “an unstable or crucial time or state of affairs

10. (...continued)
lawyer’s statements as evidence if they were based on stipulations and because the jury
was not instructed on what a stipulation was, the jury could have thought the State’s
statement was a stipulation. However, Defendant does not address the separate jury
instruction that discussed closing arguments and instructed the jury that statements
made in closing arguments were not evidence, but rather the lawyer’s interpretation of
the evidence. Additionally, Defendant did not preserve this issue nor has he addressed
the issue on appeal.

20090372‐CA 20
in which a decisive change is impending[,] especially[] one with the distinct possibility of
a highly undesirable outcome”; or “a situation that has reached a critical phase.”
Merriam‐Webster Collegiate Dictionary, 296 (11th ed. 2003) available at
http://www.merriam‐webster.com/dictionary/ crisis.
¶49 Although the victim never directly testified that her life was in crisis, the jury
could reasonably infer from the evidence, and the State could legitimately comment,
that the victim’s claim of sexual assault was a significant event in her life. The victim
testified that she had moved in with Defendant because she “didn’t have a place to
live,” and continued living with Defendant “because [she] didn’t have a place to live,
[she] wasn’t financially stable, so . . . [she] needed a place to stay for [her] kids.” After
moving out, she continued to rely on Defendant financially and her children continued
to have a close relationship with Defendant. It is reasonable to assume that the victim’s
allegations that Defendant sexually assaulted her would cause him to sever his financial
and emotional support for the victim and her children. Thus, making the allegation and
testifying at Defendant’s trial could reasonably have been interpreted by the State as
pushing the victim’s life into crisis.11 Because the State’s statement was a reasonable
interpretation of the victim’s testimony, Defendant cannot establish that the court
plainly erred or that his counsel was ineffective for not objecting to the statement. See
State v. Calliham, 2002 UT 86, ¶ 62, 55 P.3d 573 (stating that the defendant must show,
inter alia, “that the prosecutor’s comments were so obviously improper that the trial
court had an opportunity to address the error”); State v. Kelley, 2000 UT 41, ¶ 25, 1 P.3d
546 (requiring a defendant’s “counsel [to] render[] a deficient performance in some
demonstrable manner, which performance fell below an objective standard of
reasonable professional judgment” to establish the first element of ineffective assistance
of counsel).12

11. Because we conclude that the statement was not improper, we do not address
whether the statement was prejudicial.

12. Because of our decision, we do not address Defendant’s cumulative error argument
or his ineffective assistance of counsel claim for his post‐trial counsel’s failure to file a
motion to arrest judgment for Defendant’s trial counsel’s failure to object to the State’s
statements made during closing arguments.

20090372‐CA 21
 II. Ineffective Assistance of Counsel Claim Regarding Defendant’s Right to Testify

¶50 Defendant argues that his trial counsel performed ineffectively because counsel
failed to seek clarification from the trial court about the scope of the motion to suppress
before advising him not to testify at trial. In particular, Defendant asserts that counsel
did not clarify whether the trial court granted the motion based on Defendant’s failure
to knowingly and voluntarily waive his Miranda rights or because Defendant’s
statements to police were the product of coercion in violation of his Fifth Amendment
rights. In the alternative, Defendant argues that if the motion to suppress was not based
on the involuntariness of his statements, trial counsel was ineffective for not making a
request to the trial court for such determination.

¶51 To establish ineffective assistance, Defendant must prove two elements.
Defendant must first establish “that his counsel rendered a deficient performance in
some demonstrable manner, which performance fell below an objective standard of
reasonable professional judgment.” Kelley, 2000 UT 41, ¶ 25 (internal quotation marks
omitted). “To satisfy the first part of the test, defendant must overcome the strong
presumption that [his] trial counsel rendered adequate assistance by persuading the
court that there was no conceivable tactical basis for counsel’s actions.” State v. Clark, 2004
UT 25, ¶ 6, 89 P.3d 1008 (emphasis and alteration in original) (internal quotation marks
omitted). In the seminal case on ineffective assistance of counsel, Strickland v.
Washington, 466 U.S. 668 (1984), the United States Supreme Court cautioned,

Judicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a defendant to
second‐guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable. . . . [Thus,] 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. at 689 (internal quotation marks omitted); accord State v. Litherland, 2000 UT 76, ¶ 19,
12 P.3d 92. Furthermore, defense counsel is not required to make futile motions. See

20090372‐CA 22
State v. Chacon, 962 P.2d 48, 51 (Utah 1998) (“Neither speculative claims nor counsel’s
failure to make futile objections establishes ineffective assistance of counsel.”).

¶52 The second element in an ineffective assistance of counsel claim is “that counsel’s
performance prejudiced the defendant,” i.e., there is “a reasonable probability . . . that
except for ineffective counsel, the result would have been different.” Kelley, 2000 UT 41,
¶ 25 (internal quotation marks omitted).
“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” In making this
determination, an appellate court should consider the
totality of the evidence, taking into account such factors as
whether the errors affect the entire evidentiary picture or
have an isolated effect and how strongly the verdict is
supported by the record.

State v. Templin, 805 P.2d 182, 187 (Utah 1990) (quoting Strickland, 466 U.S. at 694).

¶53 In this case, it would have been important for Defendant’s trial counsel to
determine whether the trial court suppressed Defendant’s statements to police because
they were improperly coerced in violation of his Fifth Amendment rights13 or because

13. With regard to a Fifth Amendment violation, the court looks at the totality of the
circumstances “[t]o determine whether a suspect’s statements were coerced.” See State
v. Troyer, 910 P.2d 1182, 1188 (Utah 1995).

20090372‐CA 23
they were taken in violation of his Miranda rights14 so that defense counsel would know
whether the statements could be used to impeach Defendant if he testified.

Statements made by a defendant in circumstances violating
the strictures of Miranda . . . are admissible for impeachment
if their “trustworthiness . . . satisfies legal standards.” But
any criminal trial use against a defendant of his involuntary
statement is a denial of due process of law, “even though
there is ample evidence aside from the confession to support
the conviction.”

Mincey v. Arizona, 437 U.S. 385, 397‐98 (1978) (second omission in original) (citations
omitted); accord State v. Troyer, 910 P.2d 1182, 1190 (Utah 1995) (“With regard to the
State’s ability to introduce [the defendant]’s statements into evidence for the sole
purpose of impeaching his credibility, the United States Supreme Court has held that
‘although statements taken in violation of only the prophylactic Miranda rules may not
be used in the prosecution’s case in chief, they are admissible to impeach conflicting
testimony by the defendant.’” (quoting Michigan v. Harvey, 494 U.S. 344, 350‐51 (1990))).

A. Defendant’s Motion to Suppress Only Addressed a Miranda Violation.

¶54 We agree with the 23B court’s determination that the motion to suppress and the
trial court’s ruling on that motion were based solely on the question of whether

14. With regard to the initial waiver of Miranda rights,
th[e Utah Supreme C]ourt has noted, in accordance with
federal case law, that a heavy burden rests on law
enforcement officers to demonstrate that the defendant
knowingly and intelligently waived his Miranda rights. The
burden therefore rests on the State to show that a suspect’s
waiver of Miranda rights was clear and unambiguous, as
well as voluntary.
State v. Tiedemann, 2007 UT 49, ¶ 16, 162 P.3d 1106 (internal quotation marks omitted);
see also State v. Barrett, 2006 UT App 417, ¶¶ 12‐13, 147 P.3d 491 (determining that the
defendant knowingly, intelligently, and voluntarily waived his Miranda rights).

20090372‐CA 24
Defendant knowingly waived his Miranda rights.15 Defendant’s motion focused mainly
on the police officers’ failure to properly advise Defendant of his Miranda rights in
Russian or to ensure that Defendant clearly understood his Miranda rights. In granting
the motion, the court found only that Defendant was not adequately informed of his
Miranda rights.

¶55 On appeal, Defendant claims that his motion to suppress filed in the trial court
raised the issue of constitutional voluntariness under the Fifth Amendment because the
motion stated,

It is the prosecutor’s burden to establish, by a
preponderance of the evidence, that a defendant’s
statements to officers are voluntarily made. Courts have
held that “[o]ne precondition for a voluntary custodial
confession is a voluntary waiver of Miranda rights, and
language difficulties may impair the ability of a person in
custody to waive these rights in a free and aware manner.”

(Citations omitted.) Our interpretation of Defendant’s written motion is that while the
motion does mention voluntariness, it does so in the context of Miranda and does not
provide either a complete legal analysis of the Fifth Amendment requirements or a
factual argument that Defendant’s statements were coerced in violation of his Fifth
Amendment rights. See Troyer, 910 P.2d at 1187 (“The United States Supreme Court has
held that ‘a simple failure to administer Miranda warnings is not in itself a violation of
the Fifth Amendment.’” (quoting Oregon v. Elstad, 470 U.S. 298, 306 n.1 (1985))). The last
paragraph of Defendant’s motion to suppress reiterated his Miranda argument by
stating, “Defendant asserts that his statements to officers were not voluntarily made as
he did not knowingly and voluntarily waive his Miranda rights. Evidence on this point
will be provided by Defendant in greater detail at the scheduled Evidentiary Hearing.”
However, at the hearing on the motion to suppress, Defendant’s trial counsel simply

15. This court’s remand did not include Defendant’s request to have the 23B court
address the issue of coercion. However, Defendant continually urged the 23B court to
address this issue to aid in presenting evidence at the 23B remand hearing. Our review
of the record convinces us that the 23B court was correct, for the most part, in both its
legal and factual analysis of the Miranda and the voluntariness issues.

20090372‐CA 25
stated that the motion to suppress was based on the violation of Defendant’s Miranda rights.

¶56 Thus, it is clear from the record that Defendant’s motion to suppress focused
only on a violation of his Miranda rights. Although a Miranda violation may be
considered in a voluntariness analysis, see id., the issue of the voluntariness of
Defendant’s statements under the Fifth Amendment was not argued or considered.
Therefore, Defendant’s trial counsel’s performance was not deficient in not requesting
further clarification concerning the scope of the trial court’s suppression ruling because
it would have been futile to request that the trial court clarify its already clear ruling.
See State v. Chacon, 962 P.2d 48, 51 (Utah 1998) (“Neither speculative claims nor
counsel’s failure to make futile objections establishes ineffective assistance of counsel.”).

B. Defendant’s Fifth Amendment Rights Were Not Violated Because His Statements
Were Not Coerced.

¶57 Alternatively, Defendant argues that if his trial counsel did not move for
suppression based on a violation of his Fifth Amendment rights then his trial counsel
was ineffective for failing to make such a request. Again, we agree with the 23B court
that Defendant’s statements were not coerced in violation of his Fifth Amendment
rights but were instead voluntarily given. Thus, trial counsel cannot be considered to
be ineffective for not making a futile motion.16 See id.

¶58 As the Utah Supreme Court has explained,

The Fifth Amendment [to the United States Constitution]
protects individuals from being compelled to give evidence
against themselves. Accordingly, analysis of whether
admission of a confession into evidence violates the Fifth or
Fourteenth Amendment does not turn solely on the
voluntariness of the confession. “[C]oercive police activity is
a necessary predicate to the finding that a confession is not
voluntary.”

16. Because of this determination, we do not address Defendant’s separate claim that
his post‐trial counsel was ineffective for not filing a motion to arrest judgment based on
Defendant’s argument that the statements were involuntary and trial counsel
improperly advised him not to testify.

20090372‐CA 26
State v. Rettenberger, 1999 UT 80, ¶ 11, 984 P.2d 1009 (alterations in original) (quoting
Colorado v. Connelly, 479 U.S. 157, 167 (1986)); see also State v. Troyer, 910 P.2d 1182, 1188
(Utah 1995) (“‘Cases that implicate the Fifth Amendment must, by definition, involve an
element of coercion, since the Fifth Amendment protects individuals from being
compelled to give evidence against themselves.’” (quoting Michigan v. Tucker, 417 U.S.
433, 448‐49 (1974))).

[I]n order to determine whether a challenged confession was
constitutional under the Fifth and Fourteenth Amendments,
a court must examine the totality of circumstances to
determine whether a confession had been made freely,
voluntarily and without compulsion or inducement of any
sort. [T]he totality of circumstances [includes] both the
characteristics of the accused and the details of the
interrogation. . . . [U]nder the totality of circumstances test,
courts must consider such external factors as the duration of
the interrogation, the persistence of the officers, police
trickery, absence of family and counsel, and threats and
promises made to the defendant by the officers.

In addition, as interrogators have turned to more
subtle forms of psychological persuasion, courts have found
the mental condition of the defendant a more significant
factor in the voluntariness calculus. Thus, under the totality
of circumstances analysis, courts must also consider such
factors as the defendant’s mental health, mental deficiency,
emotional instability, education, age, and familiarity with
the judicial system.

Rettenberger, 1999 UT 80, ¶¶ 14‐15 (second and third alterations in original) (citations
and internal quotation marks omitted).

¶59 In this case, an examination of the external factors surrounding Defendant’s
interrogation at the police station does not demonstrate that Defendant was coerced
into making a statement and answering questions during the interview with the police
officers. See id. ¶ 14. The entire interrogation lasted less than ninety minutes.
Furthermore, we agree with the 23B court that “nothing in the tone of voice of the
officers . . . indicated that they were berating him, forcing him to talk to them in

20090372‐CA 27
any[ ]way[;] . . . there was [nothing] done to make him uncomfortable, to pressure him”;
and “at all times [Defendant] appeared to be comfortable in explaining his answers and
in responding to the [officers].”

¶60 Defendant argues that the interrogation was improper because he was not told of
the charges that would be filed against him until after the interrogation ended.
However, Defendant does not argue that the officers knew what the exact charges were
going to be prior to the conclusion of Defendant’s interrogation. And even though
Officer Fore did not inform Defendant of the charges that were to be filed until the end
of the interview, Officer Kogianes told Defendant that he was facing multiple, serious
charges and repeatedly explained the importance of Defendant giving his version of
events so that they could get to the truth, instead of just relying on the victim’s
allegations.

¶61 Defendant also claims that the officers overstated the evidence when they
claimed the victim had multiple marks on her from the attack, when in fact she had
only one bruise. However, by Defendant’s own account of events there could have
been multiple marks where he admittedly touched the victim. Although the victim had
only one bruise that was photographed, the officers may have noticed other more
transitory marks where Defendant had touched her. More importantly, the officers’
statements regarding the marks on the victim did not change Defendant’s version of
events from the statements he had already made.

¶62 Defendant also asserts that his statements were not made voluntarily because
“police did nothing to secure or offer an interpreter and made no effort to contact
anyone from the Russian consulate.” For the purposes of determining the voluntariness
of a statement, the police were not required to inform Defendant of his right to contact
the Russian consulate. See United States v. Gamez, 301 F.3d 1138, 1143‐44 (9th Cir. 2002)
(“Article 36 of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T.
77, requires that foreign nationals be informed of their right to contact their consulate
upon arrest. However, suppression of statements is not an appropriate remedy for
violation of Article 36. Accordingly, the FBI’s failure to notify [the defendant] of his
right to contact the Mexican Consulate prior to interrogating him is not a valid basis for
suppression of his statements.”). Additionally, because Defendant indicated that he
was able to write, speak, and understand English, the police were not required to
provide an interpreter. Thus, although Defendant did not have counsel or family
present, the totality of the circumstances indicate that Defendant voluntarily spoke to
the police.

20090372‐CA 28
¶63 As to the specific characteristics of the Defendant, he had lived in the United
States for a year and four months before the interrogation. He had worked at
McDonald’s, and his supervisor at work testified that Defendant was able to speak and
understand English. Defendant does not cite to any evidence that was produced to the
trial court or the 23B court that Defendant’s “mental health, mental deficiency, [or]
emotional instability,” see State v. Rettenberger, 1999 UT 80, ¶ 15, 984 P.2d 1009, affected
the voluntariness of his statements to the officers.

¶64 Therefore, based upon the totality of the circumstances, we determine that
Defendant’s statements made to the officers were voluntary. Accordingly, Defendant’s
trial counsel was not ineffective for failing to pursue exclusion of his statements based
on a violation of Defendant’s Fifth Amendment rights,17 see State v. Chacon, 962 P.2d 48,
51 (Utah 1998), and was not ineffective for failing to clarify the scope of the trial court’s
ruling before advising him that his statement could be used to impeach him if he
testified at trial, see Mincey v. Arizona, 437 U.S. 385, 397‐98 (1978).
III. Legal and Factual Determinations of the 23B Court

¶65 Finally, Defendant claims that the 23B court made legal and factual errors in its
determination that trial and post‐trial counsel effectively pursed their investigation into
Defendant’s claim of a prior arm injury.18 We review the 23B court’s factual findings for

17. Because of this disposition, Defendant’s argument that post‐trial counsel was
ineffective for failing to pursue a remedy for a violation of Defendant’s Fifth
Amendment rights also fails.

18. The 23B court spent considerable time accepting evidence and was very thorough in
its findings and conclusions. We appreciate such diligence. Nevertheless, Defendant
claims that the 23B court’s analysis of the issues “was not objective and impartial” and
did not “consider the entire evidentiary picture of the case.” However, the purpose and
effect of the 23B remand is not to look at the entire evidentiary picture, as this court will
do in an ineffective assistance of counsel claim, see State v. Templin, 805 P.2d 182, 187
(Utah 1990), but to “ent[er] findings of fact[] necessary for the appellate court’s
determination of a claim of ineffective assistance of counsel,” Utah R. App. P. 23B(a).
See also id. R. 23B(e) (“Upon remand the trial court shall promptly conduct hearings and
take evidence as necessary to enter the findings of fact necessary to determine the claim
of ineffective assistance of counsel. . . . The burden of proving a fact shall be upon the
(continued...)

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clear error and its legal conclusions for correctness. See State v. Templin, 805 P.2d 182,
186 (Utah 1990).

¶66 The main factual question the 23B court was asked to determine was what efforts
Defendant’s trial and post‐trial counsel made to investigate Defendant’s claim that he
suffered an arm injury that would have affected his ability to attack the victim in the
manner she alleged. Thus, it is critical for our inquiry into Defendant’s ineffective
assistance claim to determine when Defendant told trial counsel about his arm injury
and what she knew about the purported injury.

¶67 During the 23B proceedings, the only testimony about the communications
between Defendant and his trial counsel came from trial counsel. Trial counsel’s
testimony, as was reflected in the 23B court’s findings, was that she and Defendant
spoke in English and Defendant’s “English was ‘pretty good’”; that when Defendant
first told her of his arm injury it was “‘early on’ in her representation of” Defendant;
that “[s]he understood that the arm injury had occurred in Russia”; that “[t]he second
conversation about the injury certainly occurred in the courtroom and may have even
occurred during trial—possibly during [the victim]’s testimony”; that trial counsel “was
very confused as to when the conversation occurred and could not with any certainty
describe when it occurred”; that “[d]uring the second conversation, . . . [D]efendant
may have told her that the arm injury had occurred in Russia,” and so “[s]he assumed
that all of the medical records would be in Russia”; that “[D]efendant never told her
that he had been treated for the injury in Utah”; that “[s]he did not contact . . .
[D]efendant’s parents about any medical records” because Defendant “request[ed] her
contact with his parents [be] very limited”; that the roommate “never brought up any
issues with . . . [D]efendant’s left arm” when trial counsel spoke with him; that trial

18. (...continued)
proponent of the fact. The standard of proof shall be a preponderance of the evidence.
The trial court shall enter written findings of fact concerning the claimed deficient
performance by counsel and the claimed prejudice suffered by appellant as a result, in
accordance with the order of remand.”). We do not rely solely on the 23B court’s
summary or legal conclusions; rather, this court is concerned with the facts regarding
counsel’s performance that are established during the 23B process.
Additionally, we do not consider Defendant’s claims that the 23B findings are
incomplete because he has failed to indicate where he objected to the completeness of
the findings before the 23B court. See In re K.F., 2009 UT 4, ¶ 62, 201 P.3d 985 (outlining
the preservation requirements for incomplete findings).

20090372‐CA 30
counsel’s investigator did not tell her that Defendant ever mentioned an arm injury; that
trial counsel “never observed . . . [D]efendant to have any problems with his left arm”;
that “[D]efendant never asked her to obtain medical treatment for his arm or
complained about any problems with using his arm in his daily life, such as at his
employment”; and that “[D]efendant never complained of any pain in his left arm from
surgery, numbness in his left hand, problems with the fingers of his left hand, or
inability to grip items with his left hand or open doors.” Importantly, the court found
trial counsel’s testimony credible.

¶68 Defendant challenges these findings on appeal. Although Defendant attempts to
marshal the evidence, he has not demonstrated that the factual findings are clearly
erroneous. See Friends of Maple Mountain, Inc. v. Mapleton City, 2010 UT 11, ¶ 12, 228
P.3d 1238 (“‘Once appellants have established every pillar supporting their adversary’s
position, they then must ferret out a fatal flaw in the evidence and show why those
pillars fail to support the trial court’s findings. They must show the trial court’s
findings are so lacking in support as to be against the clear weight of the evidence, thus
making them clearly erroneous.’” (citation omitted)).

¶69 As for post‐trial counsel, Defendant has not demonstrated that the factual
findings are clearly erroneous. The 23B court’s findings establish that post‐trial counsel
did investigate the arm injury and that the investigation led him to Defendant’s
surgeon, whose testimony and notes established that Defendant’s arm injury would not
have impaired his ability to attack the victim in 2008. Contrary to what Defendant
informed his post‐trial counsel the surgeon would say, the surgeon actually reported
that Defendant had fully healed from the surgery before the attack. The surgeon
specifically testified, as indicated in the 23B court’s findings, that he “thought that it
was ‘within a reasonable medical likelihood’ that . . . [D]efendant could have performed
the acts he was accused of.” The surgeon’s notes also indicated no complaints from
Defendant about his arm after the surgery.

¶70 Based on the 23B court’s findings, we must agree with the 23B court that neither
trial nor post‐trial counsel provided Defendant with ineffective representation. While
we agree that “[i]f counsel does not adequately investigate the underlying facts of the
case[,] . . . counsel’s performance cannot fall within the ‘wide range of reasonable
professional assistance,’” State v. Templin, 805 P.2d 182, 188 (Utah 1990) (citation

20090372‐CA 31
omitted), such a deficiency must also be prejudicial,19 see id. at 186. Even assuming that
trial counsel did not adequately investigate, Defendant suffered no harm as a result of
any less than thorough investigation. When post‐trial counsel did investigate,
Defendant’s surgeon reported that Defendant had fully healed from the injury and
surgery.

¶71 Defendant also claims that post‐trial counsel’s failure to speak with the
roommate until just before the 23B hearing suggests that his counsel was ineffective.
Even presuming, without deciding, that post‐trial counsel’s performance was deficient,
any error was harmless because the 23B court found that the roommate’s testimony
regarding Defendant’s injury was not credible.

¶72 Defendant also argues that the 23B court incorrectly determined that Defendant’s
statements to the police could be used to impeach Dr. Rothfeder, the expert Defendant
intended to call at the 23B hearing, if Dr. Rothfeder’s opinion relied on Defendant’s
statements as to his condition at the time the offense was committed. We do not reach
the merits of this argument. First, Defendant has not established how Dr. Rothfeder
would have helped establish the critical information about when trial counsel was
informed of Defendant’s arm injury. Second, though Defendant is correct that a
defendant’s suppressed statements cannot generally be used to impeach other
witnesses, the State correctly points out that a defendant’s suppressed statements can be

19. Defendant asserts that when trial counsel discovered during trial that the arm injury
occurred in the United States, rather than in Russia as she had originally thought, she
should have asked for a motion to continue or a mistrial. Defendant has made no effort
to analyze whether such a request would likely have been successful and, thus, cannot
establish that trial counsel’s decision not to make such a request was prejudicial to
Defendant. See State v. Kelley, 2000 UT 41, ¶ 25, 1 P.3d 546 (“To establish prejudice [in
an ineffective assistance of counsel claim, the] defendant must show a reasonable
probability . . . that except for ineffective counsel, the result would have been different.”
(omission in original) (internal quotation marks omitted)); see also State v. Cornejo, 2006
UT App 215, ¶ 15, 138 P.3d 97 (“The Utah Supreme Court has determined that when a
party to a criminal action moves for a continuance in order to procure the testimony of
an absent witness, the party must demonstrate that: (1) the testimony sought is material
and admissible, (2) the witness could actually be produced, (3) the witness could be
produced within a reasonable time, and (4) due diligence ha[d] been exercised before
the request for a continuance.” (alteration in original) (internal quotation marks
omitted)).

20090372‐CA 32
used to impeach a defense expert who bases an opinion on the statements made by a
defendant. See Wilkes v. United States, 631 A.2d 880, 890‐91 (D.C. Cir. 1993), cert. denied,
115 S. Ct. 143 (1994). We agree with the District of Columbia Court of Appeals, which
determined that when a defendant presents an expert opinion that “is based, to any
appreciable extent, on statements made to the expert by the defendant,” id., the
prosecution may use the defendant’s statements taken in violation of Miranda to
challenge that expert’s opinion. See id. Defendant’s statements to police were
suppressed because of a Miranda violation, not because they were improperly coerced
in violation of Defendant’s Fifth Amendment rights. Thus, the 23B court correctly ruled
that the State could use any statements Defendant made to police to challenge any of
the expert’s opinions that were based on Defendant’s conflicting statements made to the
expert. In any event, based on the 23B court’s findings, the State’s evidence did
establish that Defendant’s arm was not impaired at the time he assaulted the victim in
June 2008. Thus, any error the 23B court made in ruling that Defendant’s inconsistent
statements could be used against his expert was not prejudicial.

CONCLUSION

¶73 We affirm Defendant’s convictions. The State’s crisis statement was not
improper. Further, Defendant was not prejudiced by the State’s punch and future harm
statements. Thus, Defendant has failed to establish prosecutorial misconduct under the
plain error or ineffective assistance of counsel doctrines. Next, neither Defendant’s trial
nor post‐trial counsel was ineffective for failing to pursue suppression of his statements
to police because such statements were not coerced in violation of Defendant’s Fifth
Amendment rights. Finally, Defendant did not establish that the 23B court’s factual
determinations were clearly erroneous, and the 23B court was correct in its legal
determinations that neither Defendant’s trial nor post‐trial counsel were ineffective in
regard to investigating Defendant’s alleged arm injury.

____________________________________
Michele M. Christiansen, Judge

‐‐‐‐‐

¶74 WE CONCUR:

20090372‐CA 33
____________________________________
Carolyn B. McHugh,
Presiding Judge

____________________________________
Gregory K. Orme, Judge

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