2015 UT App 311
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
SAUL AHUA CUAQUENTZI,
Appellant.
Memorandum Decision
No. 20140748-CA
Filed December 31, 2015
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 131903539
Joanna E. Landau and Lisa J. Remal, Attorneys
for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES STEPHEN L. ROTH and JOHN A. PEARCE
concurred. 1
ORME, Judge:
¶1 Saul Ahua Cuaquentzi (Defendant) appeals his
convictions on two counts of aggravated sexual abuse of a child,
both first degree felonies. See Utah Code Ann. § 76-5-404.1(5)
(LexisNexis Supp. 2015). Defendant challenges his convictions,
asserting that prosecutorial misconduct occurred during the
1. Judge John A. Pearce participated in this case as a member of
the Utah Court of Appeals. He became a member of the Utah
Supreme Court on December 17, 2015, before this decision
issued.
State v. Cuaquentzi
State’s closing argument. Because Defendant has not shown that
the alleged misconduct prejudiced him, the trial court did not
abuse its discretion when it overruled defense counsel’s
objection to the prosecutor’s statements. We affirm.
¶2 Although Defendant takes issue with many of the facts
outlined by the State, and apparently believed by the jury, we
take as our starting point the facts, and the reasonable inferences
drawn therefrom, viewed “in a light most favorable to the
verdict.” State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116. Thus, “we
recite the facts accordingly.” Id. 2
¶3 One day in April 2013, the victim’s mother returned home
from a party. She checked on the victim, aged seven, who was
“in her bedroom playing with her Barbies.” The victim became
“really quiet” and said, “Mom, I need to tell you something.”
The victim then told her that Defendant “put his pee pee here.”
According to her mother, “She then pointed to her bum.”
¶4 The mother was acquainted with Defendant and
confronted him soon after. Defendant denied the accusation and
suggested that perhaps an intruder had entered the victim’s
room during the night and that the victim had mistakenly
thought it was Defendant. The mother checked but found no
evidence of a forced entry and further recalled that she had
unlocked the deadbolt when she returned home from the party.
The mother decided to take the victim to the hospital to have her
examined for signs of sexual assault.
¶5 At the hospital, a doctor examined the victim and
swabbed the outside of the victim’s rectum. The swab picked up
semen residue. When tested, the semen on the swab was found
to match Defendant’s DNA. In the course of the ensuing police
2. Our recitation of the facts is somewhat truncated, with an eye
toward protecting the victim’s identity.
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State v. Cuaquentzi
investigation, the victim reported that she had been similarly
abused by Defendant on a prior occasion. Defendant was
accordingly charged with two counts of sexual abuse, and was
tried and convicted on both counts. He now appeals, and the
only issue he raises is a claim of prosecutorial misconduct
during closing arguments. Specifically, after summarizing
Defendant’s prior relationship with the victim and her family,
the prosecutor said, “The evidence that you’ve heard paints a
picture of a man who sexually abused that child. Who took his
position of trust . . . and exploited it. He took something innocent
and good and made it criminal.” Defense counsel objected that
the remark was inappropriate and that the prosecutor “should
concentrate on the evidence and not on the victim.” The trial
court overruled the objection.
¶6 We review the “trial court’s handling of claimed
prosecutorial misconduct for an abuse of discretion.” State v.
Kozlov, 2012 UT App 114, ¶ 28, 276 P.3d 1207 (citation and
internal quotation marks omitted). Prosecutorial misconduct in
the form of improper argument in a jury trial warrants reversal
when (1) “the prosecutor’s statements during closing argument
call[] the jurors’ attention to matters they [are] not authorized to
consider during deliberations” and (2) “the statements
prejudice[] the defendant.” State v. Fouse, 2014 UT App 29, ¶ 29,
319 P.3d 778 (citation and internal quotation marks omitted).
Because a defendant challenging his conviction under the rubric
of prosecutorial misconduct must prove both elements, we will
affirm Defendant’s convictions if he has failed to establish either
requirement. While we are far from persuaded that the
prosecutor’s comment even rose to the level of misconduct, we
readily conclude that Defendant has failed to demonstrate that
the comment prejudiced him.
¶7 In analyzing the potentially prejudicial effect of a
prosecutor’s comments, “we look at the evidence of the
defendant’s guilt.” State v. Thompson, 2014 UT App 14, ¶ 83, 318
P.3d 1221. “‘If proof of defendant’s guilt is strong, the challenged
20140748-CA 3 2015 UT App 311
State v. Cuaquentzi
conduct or remark will not be presumed prejudicial,’ but when
the evidence is ‘less compelling’ we ‘will more closely scrutinize
the conduct.’” Id. (quoting State v. Troy, 688 P.2d 483, 486 (Utah
1984)). To the extent that “the conclusion of the jurors is based
on their weighing conflicting evidence or evidence susceptible of
differing interpretations, there is a greater likelihood that they
will be improperly influenced through remarks of counsel.”
Troy, 688 P.2d at 486.
¶8 In Thompson, we determined that a prosecutor’s improper
statements had prejudiced the defendant because “the State’s
case relied almost entirely upon [the victim’s] allegations, which
[the defendant] denied.” 2014 UT App 14, ¶ 84. “Thus, the jurors
were tasked with weighing that conflicting evidence and
deciding who was telling the truth. The prosecutor’s improper
vouching for [a witness for the State], improper expression of
opinion about [the defense witness’s] credibility, and improper
statements about [the defendant's] body language bore directly
on this pivotal function of the jury.” Id. On the other hand, in
State v. Todd, 2007 UT App 349, 173 P.3d 170, despite our
conclusion that the prosecutor engaged in improper conduct, see
id. ¶¶ 21, 27, 30, we concluded that a reversal was not warranted
“given the compelling evidence of [the defendant’s] guilt,” id.
¶ 40.
¶9 This case is much more like Todd than Thompson. Whereas
in Thompson the State’s case depended almost entirely on the
credibility of the alleged victim of sexual abuse, 2014 UT App 14,
¶ 84, here the victim’s account of abuse is additionally supported
by compelling physical evidence: the uncontested presence of
Defendant’s semen in the area of the victim’s rectum. 3 See Todd,
2007 UT App 349, ¶ 40.
3. The jury was well within its rights to reject as incredible
Defendant’s alternative explanation for how his semen could
have found its way to the outside of the victim’s rectum through
(continued…)
20140748-CA 4 2015 UT App 311
State v. Cuaquentzi
¶10 Given “the overwhelming evidence of Defendant’s guilt,”
he has not met the requirement of demonstrating that the
prosecutor’s comment prejudiced him. See id. ¶ 51. With or
without that remark, the jury would have convicted Defendant
given the physical evidence that he sexually assaulted the victim.
¶11 Affirmed.
(…continued)
no fault of his own, namely that he had masturbated on her bed
and ejaculated on her sheets, after which she inadvertently
touched Defendant’s seminal fluid as she climbed into bed some
time later and then scratched her buttocks under her clothing.
20140748-CA 5 2015 UT App 311