2015 UT App 90
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JOHN ATEM JOK,
Defendant and Appellant.
Memorandum Decision
No. 20130493-CA
Filed April 16, 2015
Third District Court, Salt Lake Department
The Honorable Ann Boyden
No. 121908775
Richard G. Uday, Attorney for Appellant
Sean D. Reyes and Deborah L. Bulkeley, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES MICHELE M. CHRISTIANSEN and KATE A. TOOMEY
concurred.
ORME, Judge:
¶1 Defendant John Atem Jok appeals his convictions on two
counts of forcible sexual abuse, second degree felonies, and one
count of intoxication, a class C misdemeanor. See Utah Code Ann.
§§ 76-5-404, 76-9-701 (LexisNexis 2012). We reverse his convictions
and remand for a new trial.
State v. Jok
¶2 In 2012, Defendant and his codefendant, David Deng Akok,
accompanied a friend to N.C.’s apartment.1 That evening, after
their friend went to work, Defendant, the codefendant, and N.C.
left to purchase alcohol. The group returned to N.C.’s apartment,
where, joined by N.C.’s roommate, they drank and listened to
music.
¶3 N.C.’s roommate went to bed around 1:00 a.m. Sometime
thereafter, N.C. fell asleep on the couch in the living room. She
awoke to find Defendant touching her breasts under her shirt and
bra. N.C. pushed Defendant’s hands away and told him to stop,
which he did. Defendant, however, then moved one of his hands
under N.C.’s pants and underwear and pushed his finger into her
vagina, causing “[s]harp pain.”
¶4 After Defendant stopped touching N.C., his codefendant
started touching N.C.’s breasts and then pulled her pants and
underwear down. N.C. pulled her clothes up, but the codefendant
pulled them down again. The codefendant then used both hands
to hold N.C. down as he put his penis in her vagina and began
intercourse. While the codefendant was on top of N.C., Defendant
told N.C., “It’s okay.” N.C. told the codefendant, “Please, no” and
“stop,” but he continued, while holding her down, until “he was
done.”
¶5 N.C. then got up, went to her roommate’s room, and told
her what had happened. N.C.’s roommate asked her if she wanted
to call the police, and N.C. said yes. N.C.’s roommate also told N.C.
to tell Defendant and the codefendant to leave. N.C. went to the
living room and told the men to leave, but they refused. N.C. told
her roommate that the men would not leave, so her roommate
1. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v.
Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (citation and internal
quotation marks omitted).
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State v. Jok
went to the living room with N.C. and told the men to leave, but
again, the men refused. Around 6:30 a.m., N.C.’s roommate called
the police and reported that the men were trespassing.
¶6 When the police arrived, Defendant, who was now outside,
walked toward them. He was stumbling, had a hard time walking
in a straight line, smelled of alcohol, and had bloodshot eyes. The
police took both men to the police station. N.C. gave a statement to
the police and filled out a witness report regarding what had
happened to her. After giving her statement, N.C. went to the
hospital. A sexual assault nurse examined her. N.C.’s injuries were
consistent with forcible digital penetration and forcible sex, but the
nurse could not conclusively confirm that N.C. had been sexually
assaulted. It was later determined that semen matching the
codefendant’s genetic profile was in N.C.’s vagina.
¶7 Defendant was charged with two counts of forcible sexual
abuse, second degree felonies, and one count of intoxication, a class
C misdemeanor. See Utah Code Ann. §§ 76-5-404, 76-9-701
(LexisNexis 2012). Defendant and the codefendant were tried
together. Before the trial began, Defendant moved to sever his trial
from the codefendant’s trial, but the trial court denied the motion.
Defendant did not testify at trial, but as his counsel made clear
during opening statement and closing argument, his defense was
that he had not touched N.C.
¶8 At the end of the rebuttal portion of the prosecutor’s closing
argument, the prosecutor told the jury, with our emphasis:
And when you look at the totality of the evidence it
is very clear that [Defendant and the codefendant]
engaged in sexual intercourse and touched her
without her consent. They took advantage of a very
vulnerable victim. Don’t let them take advantage of it
again. Thank you.
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State v. Jok
After closing arguments the jury left the courtroom. At that time,
the codefendant’s counsel objected to the “last statement of the
prosecutor . . . do not make the victim a victim again” and moved
for a mistrial on the ground that the statement was prejudicial.
Defendant joined in the codefendant’s motion. The trial court
denied the motion. The codefendant’s counsel then requested a
specific admonition to the jurors “not to consider that statement by
the prosecutor,” and the prosecutor stated that he had “[n]o
objections to that.”
¶9 Thereafter, the trial court called the jurors back into the
courtroom. The trial court did not give the jurors the specific
admonition that the codefendant requested and to which the
prosecutor had no objection. Rather, the court gave what it termed
a “partial admonishment” to the jury.
¶10 After the court’s admonition, the jury again left the room.
The trial court then explained to the codefendant’s counsel: “I did
make a partial admonishment . . . . I did not do exactly what you
had asked but I do feel that the admonishment I gave them was
appropriate under the circumstances so that was part of my
ruling.” The codefendant’s counsel objected to the trial court’s
“partial admonishment.” The jury deliberated for a little over four
hours and convicted Defendant as charged. Defendant appeals.2
¶11 Defendant argues that the prosecutor’s improper statement
during the rebuttal portion of his closing argument prejudiced his
right to a fair trial. This issue, regarding the prosecutor’s same
improper statement, was resolved by our opinion in State v. Akok,
2015 UT App 89. In that case, we determined that the prosecutor’s
statement was both improper and prejudicial, and that the
admonishment was insufficient to cure the problem. See id. ¶¶ 16,
29. Accordingly, we concluded that there was a reasonable
2. The codefendant was also convicted as charged. He filed a
separate appeal, which we also resolve today. See State v. Akok, 2015
UT App 89.
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State v. Jok
probability that, in the absence of the prosecutor’s improper
statement, there would have been a more favorable result for the
codefendant. See id. ¶ 30; State v. Gardner, 789 P.2d 273, 287 (Utah
1989) (noting that appellate courts will reverse on the basis of
prosecutorial misconduct if a defendant has shown that “the
actions or remarks of counsel call to the attention of the jury a
matter it would not be justified in considering in determining its
verdict and, if so, under the circumstances of the particular case,
whether ‘the error is substantial and prejudicial such that there is
a reasonable likelihood that in its absence, there would have been
a more favorable result for the defendant’”). We therefore reversed
the codefendant’s conviction and remanded for a new trial. See
Akok, 2015 UT App 89, ¶ 30. For the same reasons stated in our
opinion in Akok, we also reverse Defendant’s convictions and
remand for a new trial.
¶12 Defendant also contends that the trial court erred when it
failed to grant his severance motion. Because resolution of
Defendant’s prosecutorial-misconduct claim is dispositive of this
appeal, we need not definitely decide the merits of Defendant’s
severance argument.3 However, because it will likely arise again on
3. Additionally, Defendant argues that his defense counsel’s
failure to assert the affirmative defense of voluntary intoxication
constituted ineffective assistance of counsel. Specifically, Defendant
argues that because he was intoxicated on the night he was with
N.C., “it is objectively reasonable to say that trial counsel should
have used [his] impairment as a defense.” We disagree.
Defense counsel’s failure to assert a voluntary-intoxication
defense was entirely consistent with her trial strategy. Defense
counsel argued during both her opening and closing that
Defendant did not touch N.C. and that N.C.’s versions of events
“just didn’t happen.” Therefore, had defense counsel presented a
voluntary-intoxication defense, it would have been wholly
inconsistent with Defendant’s position that he did not touch N.C.
Defense counsel may well have reasonably decided that she could
(continued...)
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State v. Jok
remand, we briefly address it. See State v. James, 819 P.2d 781, 795
(Utah 1991) (“Issues that are fully briefed on appeal and are likely
to be presented on remand should be addressed[.]”).
¶13 The Utah Code allows for the joinder of defendants “if they
are alleged to have participated in the same act or conduct or in the
same criminal episode.” Utah Code Ann. § 77-8a-1(2)(b)
(LexisNexis 2012). “When two or more defendants are jointly
charged with any offense, they shall be tried jointly unless the court
in its discretion on motion or otherwise orders separate trials
consistent with the interests of justice.” Id. § 77-8a-1(2)(d). If the
trial court “finds a defendant . . . is prejudiced” by the joinder of
defendants it “shall . . . grant a severance of defendants, or provide
other relief as justice requires.” Id. § 77-8a-1(4)(a). “[T]he grant or
denial of severance is a matter within the discretion of the trial
judge, so we reverse a conviction only if the trial judge’s refusal to
sever . . . is a clear abuse of discretion in that it sacrifices the
defendant’s right to a fundamentally fair trial.” State v. Lopez, 789
P.2d 39, 42 (Utah Ct. App. 1990) (citation and internal quotation
marks omitted).
3. (...continued)
not credibly argue that perhaps Defendant did touch N.C. after all,
but that if he did, he was too drunk to know what he was doing.
Accordingly, we conclude that defense counsel’s performance was
not objectively deficient simply because she chose not to assert the
affirmative defense of voluntary intoxication. See Strickland v.
Washington, 466 U.S. 668, 687 (1984) (holding that to prove
ineffective assistance of counsel, a defendant must show both “that
counsel’s performance was deficient” and “that the deficient
performance prejudiced the defense”); State v. Campos, 2013 UT
App 213, ¶ 34, 309 P.3d 1160 (“[A]ny election between inconsistent
defenses [is] a legitimate exercise of trial strategy rather than
ineffective assistance of counsel.”) (alterations in original) (citation
and internal quotation marks omitted).
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State v. Jok
¶14 In this case, we are not prepared to conclude that the trial
court abused its discretion in the first instance. However, with the
benefit of hindsight, it would appear to us that the better course on
remand is for the defendants to have separate trials. Although we
are largely persuaded by the State’s argument that the defendants’
trial theories were not so inconsistent with one another as to
necessarily require separate trials, given the prosecutor’s apparent
inability or unwillingness to differentiate between the two
defendants during the first trial, we conclude that separate trials
appear to be in order.4
¶15 For the reasons discussed in State v. Akok, 2015 UT App 89,
Defendant’s convictions are reversed and the case is remanded for
a new trial. If a timely motion for severance is made on remand, it
merits the trial court’s careful consideration.
4. During the trial, the prosecutor frequently lumped the two
defendants together. Although it was not even alleged that
Defendant had any form of intercourse with N.C., the prosecutor’s
statements often attributed the act of rape to Defendant. For
example, in his opening statement the prosecutor stated, with our
emphasis: “She went to the hospital because she was raped and
sexually assaulted by these two individuals early in the morning of
her birthday.” And during closing arguments the prosecutor
stated, again with our emphasis: “And when you look at the
totality of the evidence it is very clear that they engaged in sexual
intercourse and touched her without her consent. They took
advantage of a very vulnerable victim.”
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