State v. Akok

2015 UT App 89
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
DAVID DENG AKOK,
Defendant and Appellant.

Opinion
No. 20130498-CA
Filed April 16, 2015

Third District Court, Salt Lake Department
The Honorable Ann Boyden
No. 121908776

Nathalie S. Skibine and Scott A. Wilson, Attorneys
for Appellant

Sean D. Reyes and Deborah L. Bulkeley, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and KATE A. TOOMEY concurred.

ORME, Judge:

¶1 Defendant David Deng Akok appeals his conviction for
rape, a first degree felony. See Utah Code Ann. § 76-5-402
(LexisNexis 2012). We reverse his conviction and remand for a new
trial.
 State v. Akok

BACKGROUND1

¶2 In 2012, Defendant and his codefendant, John Atem Jok,
accompanied a friend to N.C.’s apartment. 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 the codefendant touching her breasts under her shirt
and bra. N.C. pushed the codefendant’s hands away and told him
to stop, which he did. The codefendant, 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 the codefendant stopped touching N.C., Defendant
stated that he had “to have sex for 24 hours with [N.C.], and would
have fun with this girl.” Defendant started touching N.C.’s breasts
and then he pulled her pants and underwear down. N.C. pulled
her clothes up, but Defendant pulled them down again. Defendant
then used both hands to hold N.C. down as he put his penis in her
vagina. N.C. told Defendant, “Please, no” and “stop,” but he held
her down while having sexual intercourse with her until “he was
done.” Defendant told N.C. that he wanted her to go to his house
and sleep in his bed, but she refused.

¶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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went to the living room with N.C. and told the men to leave.
Again, the men refused. Around 6:30 a.m., N.C.’s roommate called
the police and reported that the men were trespassing.

¶6 The police arrived and handcuffed Defendant, who was
intoxicated to the point that he could not stand up on his own, and
took both him and the codefendant 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. She was examined by a sexual assault nurse, who
concluded that N.C.’s injuries were consistent with forcible digital
penetration and forcible sex but could not conclusively confirm that
N.C. had been sexually assaulted. The examination also disclosed
that N.C. had semen in her vagina, which tests later confirmed
matched Defendant’s genetic profile.

¶7 Defendant was charged with rape, a first degree felony, and
intoxication, a class C misdemeanor.2 See Utah Code Ann. §§ 76-5-
402, 76-9-701 (LexisNexis 2012). Defendant and the codefendant
were tried together. At trial, Defendant testified that he and N.C.
had consensual sex in the back seat of his car after he, the
codefendant, and N.C. went to buy alcohol. He stated that he then
began drinking heavily, fell asleep in N.C.’s apartment, and was
still severely intoxicated when the police arrived the next morning.

¶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.

2. Defendant was also charged with forcible sexual abuse, see Utah
Code Ann. § 76-5-404 (LexisNexis 2012), but that charge was
dismissed before trial.

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After closing arguments, the jury left the courtroom. At that time,
Defendant’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 improper and
prejudicial. The codefendant joined in Defendant’s motion. The
trial court denied the motion. Defendant’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 The trial court called the jurors back into the courtroom. It
did not give the jurors the specific admonition that Defendant
requested. Rather, the court admonished the jurors that they could
only consider the evidence before them and that the attorneys’
opening statements and closing arguments were not evidence.

¶10 After the court’s admonition, the jury left the room again.
The trial court then explained to Defendant’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.” Defendant’s counsel objected to the trial court’s “partial
admonishment.” The jury deliberated for a little over four hours
and convicted Defendant of both rape and intoxication. Defendant
appeals only the rape conviction.

ISSUE AND STANDARD OF REVIEW

¶11 On appeal, Defendant argues that the prosecutor committed
misconduct during his closing argument and that the trial court
should have mitigated the prosecutor’s misconduct by issuing
Defendant’s requested curative admonition. We 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,

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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.

State v. Peters, 796 P.2d 708, 712 (Utah Ct. App. 1990) (citation and
internal quotation marks omitted). “In determining whether a
given statement constitutes prosecutorial misconduct, the
statement must be viewed in light of the totality of the evidence
presented at trial.” State v. Cummins, 839 P.2d 848, 852 (Utah Ct.
App. 1992). In addition, “because the trial court is in the best
position to determine the impact of a statement upon the
proceedings, its rulings . . . will not be overturned absent an abuse
of discretion.” Id.

ANALYSIS

¶12 In considering the prosecutor’s statement, we first analyze
whether it “call[ed] to the attention of the jury a matter it would
not be justified in considering in determining its verdict.” State v.
Peters, 796 P.2d 708, 712 (Utah Ct. App. 1990) (citation and internal
quotation marks omitted). Second, we analyze 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.” Id. (citation and internal quotation marks
omitted).

I. Improper Statement

¶13 “In our judicial system, the prosecution’s responsibility is
that of a minister of justice and not simply that of an advocate,
which includes a duty to see that the defendant is accorded
procedural justice and that guilt is decided upon the basis of
sufficient evidence.” State v. Todd, 2007 UT App 349, ¶ 17, 173 P.3d
170 (citation and internal quotation marks omitted). Therefore, “the

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conduct of the prosecutor at closing argument is [appropriately]
circumscribed by the concern for the right of a defendant to a fair
and impartial trial.” Id. (alteration in original) (citation and internal
quotation marks omitted). Accordingly, “while prosecutors must
have the freedom to present closing argument with logical force,
they must also act within the constraints imposed upon their
office.” Id. ¶ 18.

¶14 In this case, during the prosecutor’s rebuttal, he told the
jury:

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.

Defendant argues that this statement was improper because the
“prosecutor’s remark . . . appealed to the jurors’ emotions and
diverted their attention from their legal duty to determine guilt
impartially.” We agree.3

¶15 In State v. Wright, 2013 UT App 142, 304 P.3d 887, the
prosecutor’s final statement to the jury during the rebuttal phase
of closing arguments was “You have the power to make that [the
abuse] stop.” Id. ¶ 41. We noted that the prosecutor’s statement did
not rebut any statements made by the defendant; rather, the
statement called on the jury “to assume the responsibility of
ensuring [the victim’s] safety.” Id. Ultimately, we determined that
the prosecutor’s statement was improper because it “appeal[ed] to
the jurors’ emotions by contending that the jury ha[d] a duty to
protect the alleged victim—to become her partisan—which

3. Because the prosecutor agreed to a curative instruction, the State
assumes in its brief, without conceding, that the prosecutor’s
statement was improper.

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divert[ed] their attention from their legal duty to impartially apply
the law to the facts.” Id.

¶16 Here, the prosecutor’s statement during the rebuttal portion
of closing arguments—“They took advantage of a very vulnerable
victim. Don’t let them take advantage of it again.”—similarly
appealed to the jurors’ emotions. The statement suggested to the
jurors that they had a duty to protect N.C., or perhaps women
generally, from Defendant and the codefendant. And it suggested
that an acquittal would allow Defendant and the codefendant to
take advantage of N.C. or other women again. In other words, the
statement called on the jury to “assume the responsibility of
ensuring [N.C.’s] safety.” See id. As we determined in Wright, such
statements divert the jury’s attention from its legal duty to
impartially apply the law to the facts. See id. Accordingly, we
conclude that the prosecutor’s statement was improper and called
the jurors’ attention to matters they were not justified in
considering in reaching their verdict. See Peters, 796 P.2d at 712.

II. Prejudice

¶17 We now consider the second step of the prosecutorial-
misconduct analysis, i.e., whether, under the facts of this case, the
error was “substantial and prejudicial such that there is a
reasonable likelihood that, in its absence, there would have been a
more favorable result” for Defendant. Id. (citation and internal
quotation marks omitted). In making this assessment, “we are
mindful that [a] criminal conviction is not to be lightly overturned
on the basis of a prosecutor’s comments standing alone.” State v.
Todd, 2007 UT App 349, ¶ 31, 173 P.3d 170 (alteration in original)
(citation and internal quotation marks omitted). Rather, improper
comments by the prosecutor require reversal only if they
“substantially affected the defendant’s right to a fair trial.” Id.
(citation and internal quotation marks omitted). “That threshold is
met when the likelihood of a different outcome [is] sufficiently high
to undermine [our] confidence in the verdict.” State v. Thompson,

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2014 UT App 14, ¶ 83, 318 P.3d 1221 (alterations in original)
(citation and internal quotation marks omitted).

¶18 Defendant argues that there is a reasonable likelihood that
he would have been acquitted if not for the prosecutor’s statement
and that, at a minimum, the trial court should have mitigated the
prosecutor’s misconduct by issuing the specific curative instruction
Defendant requested and to which the prosecutor had no objection.
We agree.

¶19 The prejudice prong of prosecutorial-misconduct analysis
requires “consideration of the circumstances of the case as a
whole.” State v. Troy, 688 P.2d 483, 486 (Utah 1984). In undertaking
this analysis, we look at the evidence of the defendant’s guilt,
“whether defense counsel addressed the improper statements
during closing argument and the prosecution then ‘restricted his
surrebuttal comments to the evidence and made no further
mention of’ the improper comments,” and “whether the trial court
gave a curative instruction admonishing the jury to
‘dispassionately consider and weigh the evidence’ and instructing
them ‘not to consider the statements of counsel as evidence.’” Todd,
2007 UT App 349, ¶¶ 33–34 (quoting State v. Dunn, 850 P.2d 1201,
1225 (Utah 1993)).

A. Evidence of Defendant’s guilt

¶20 In determining whether there was prejudice, it is
appropriate to look at the evidence of Defendant’s guilt.

If proof of [D]efendant’s guilt is strong, the
challenged conduct or remark will not be presumed
prejudicial. Likewise, in a case with less compelling
proof, [Utah courts] will more closely scrutinize the
conduct. If 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.

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Troy, 688 P.2d at 486 (citation and internal quotation marks
omitted).

¶21 Here, there was not overwhelming proof of Defendant’s
guilt. The State’s case relied heavily upon N.C.’s testimony that
Defendant raped her, which Defendant denied. Although
Defendant’s semen was found inside N.C.’s vagina, Defendant
testified that he and N.C. had consensual sex in his car after they
drove to the store to buy alcohol. The nurse also testified that while
N.C.’s injuries were consistent with rape, there was “no way to tell
definitively” from N.C.’s injuries if they resulted from consensual
or nonconsensual contact. Consequently, “the jurors were tasked
with weighing [the] conflicting evidence and deciding who was
telling the truth” as between Defendant and N.C. See Thompson,
2014 UT App 14, ¶ 84. Inviting the jury to tip the credibility balance
in a way that would prevent Defendant and the codefendant from
revictimizing N.C. provided the jurors with a way to avoid their
ultimate—possibly difficult—responsibility, to the potential
prejudice of Defendant. In this case, the jury could have gone either
way based on the evidence presented at trial. Thus, there is a
“greater likelihood” that the jury was influenced by the
prosecutor’s improper statement. See Troy, 688 P.2d at 486.

B. Defense counsel’s inability to address the improper
statement

¶22 Generally, if the prosecutor makes an improper comment
during his initial closing argument, “defense counsel can
ameliorate the effects of the comment by discussing the
impropriety with the jurors.” State v. Todd, 2007 UT App 349, ¶ 41,
173 P.3d 170. But here, the prosecutor’s improper statement came
during the rebuttal phase of his closing argument, and defense
counsel did not have the opportunity to address the prosecutor’s
improper statement in the ordinary course or to ameliorate any
harmful effects of the statement. See United States v. Holmes, 413
F.3d 770, 776 (8th Cir. 2005) (“It is particularly disturbing that the
comments were made during the rebuttal phase of closing
argument” when “[d]efense counsel was left with no opportunity

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to rebut the allegations and the jury heard the remark immediately
before deliberations.”). As the Eighth Circuit has noted, “[t]he
potential for prejudice is great during closing arguments, especially
when the defense has no opportunity for rebuttal.” Id. Accordingly,
because defense counsel was unable to respond to the prosecutor’s
improper statement, the potential for prejudice was heightened in
this case.

C. The trial court’s curative admonition

¶23 “[C]urative instructions are a settled and necessary feature
of our judicial process and one of the most important tools by
which a court may remedy errors at trial.” State v. Harmon, 956 P.2d
262, 271 (Utah 1998). However, the Utah Supreme Court has
recognized that curative instructions are not a “cure-all.” Id. at 273.
Indeed, “[s]ome errors may be too prejudicial for curative
instructions to mitigate their effect, and a new trial may be the only
proper remedy.” Id.

¶24 In this case, after the parties gave their closing arguments,
the jury left the courtroom and Defendant objected to the “last
statement of the prosecutor . . . do not make the victim a victim
again,” and he moved for a mistrial. The trial court denied
Defendant’s motion, stating that it had “clearly instructed [the jury]
that opening statements and closing arguments are the statements
of the attorneys and that they are giving those statements from
their perspective and what they are advocating.” Defendant then
requested a specific admonition to the jury “that they are not to
consider that statement by the prosecutor.” The prosecutor
expressly stated that he had no objection to Defendant’s requested
admonition. In that posture, the path of least resistance is for the
trial court to simply give the agreed-upon admonition. Instead,
when the jury came back into the courtroom, the trial court gave
what it termed a “partial admonishment” to the jury:

I am going to admonish you a couple of things
then because we are going to be having a longer
recess. . . . [I]t is important . . . as you deliberate that

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you remember my instructions that you make your
decisions based upon the evidence that is presented
at trial.
You remember my admonition to you that the
closing arguments . . . that are fresher [in] your mind
are the statements of the attorneys and that . . . their
arguments have been made from the perspective of
the client that they are representing[,] that those
arguments are made for the purpose of being
persuasive but they are not a statement of
instruction, they are not a statement of the law[,] and
they are not the statement of evidence.
You need to look to your collective memories
of what the evidence is and to follow the laws in the
instruction and to not take into—to not take any
comment made by the attorney whether it’s a
[reflection of] the defendants or whether it’s a
reflection of the witnesses that have testified at trial.
You must look to the evidence and not accept as
evidence any characterization or recollection on the
witnesses or the parties in this case.

¶25 After reviewing the trial court’s admonition to the jury, we
cannot say that it adequately dealt with the prosecutor’s improper
statement. Although the trial court generally admonished the jury
that the closing arguments were not evidence and that the jury was
to base its decision solely on the evidence, the court’s admonition
did not neutralize the prejudicial effect of the prosecutor’s
statement for two reasons.

¶26 First, the trial court’s admonition did not vary in any
significant manner from the general instructions it gave the jury
both before trial and before closing arguments. For example, before
the trial began, the trial court gave several preliminary instructions
to the jury, one of which instructed the jury to base its decision
solely on the law and the evidence presented in court and informed

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it that closing arguments are not evidence.4 Before closing
arguments, the trial court read to the jury the remaining jury
instructions, two of which instructed the jury that the lawyers’
arguments were not evidence. Jury instruction fifteen read: “[B]ase
your decision only on the evidence that you saw and heard here in
court . . . . The lawyers[’] statements and arguments are not
evidence.” And jury instruction forty-three stated:

When the lawyers give their closing arguments, keep
in mind that they are advocating their views of the
case. What they say during their closing arguments
is not evidence. If the lawyers say anything about the
evidence that conflicts with what you remember, you
are to rely on your memory of the evidence. If they
say anything about the law that conflicts with these
instructions, you are to rely on these instructions.

¶27 Second, and most importantly, the court’s admonition failed
to explicitly call the jurors’ attention to the prosecutor’s specific
improper statement. Rather than giving an admonition that was
specifically tailored to the prosecutor’s improper statement like
Defendant requested (and to which the prosecutor had no
objection), the trial court simply repeated a variation of the
boilerplate instructions the jury had heard at least three times

4. Specifically, the trial court told the jury:
The lawyers will present and try to persuade
you to decide the case in one way or the other. . . . Do
not be influenced by what you think our opinions
might be, make your decisions based on the law
given in my instructions and on the evidence
presented in court. . . . You must base your decision
only on the evidence. Evidence usually consists of
the testimony and exhibits presented at trial. . . .
What the lawyers say is not evidence. For example,
their opening statements and closing arguments are
not evidence.

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before. Cf. Harmon, 956 P.2d at 269–71 (concluding that the trial
court’s “forceful, explicit instruction to the jury to disregard the
‘totally and absolutely inappropriate’ comment” effectively cured
the serious error that occurred when a deputy testified as to the
defendant’s credibility).

¶28 With the exception of the trial court’s statement that it
thought that its partial admonishment “was appropriate under the
circumstances,” we are left without explanation as to why the trial
court did not give Defendant’s specific requested admonition.
Given that the prosecutor had no objection to Defendant’s
requested admonition, the trial court’s decision to give an
admonition different from the one requested seems, absent some
explanation, rather arbitrary. The trial court had the opportunity
to dispel the emotional force of the State’s argument that an
acquittal would allow Defendant and his codefendant to take
advantage of N.C. or others again, and yet, for reasons unknown,
the court chose not to do so. We think it appropriate that in a
situation such as this, where a defendant requests a specific
curative admonition that is not contrary to law and to which the
prosecutor has no objection, the trial court should simply give the
curative admonition as requested. That is the safest path for the
trial court to take. Of course, the trial court may perceive some
problem with the stipulated admonition that counsel have missed.
In such a situation, the trial court should explain the reasoning
behind its decision to give an admonition different from the one
requested and give counsel an opportunity to respond.5

5. We tend to defer to trial courts because we have a cold record
and because trial courts are in the best position to observe the
jury’s reaction to an improper statement. See Doug Jessop Constr.,
Inc. v. Anderton, 2008 UT App 348, ¶ 15, 195 P.3d 493 (“A trial judge
is in the best position to . . . derive a sense of the proceeding as a
whole, something an appellate court cannot hope to garner from a
cold record.”) (omission in original) (citation and internal quotation
marks omitted). However, because we were not in the courtroom,
if a trial court’s determination on whether to give a curative
(continued...)

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¶29 In this case, the trial court neither gave the stipulated
admonition nor explained its specific reasoning for improvising
rather than giving the agreed-upon admonition. While the trial
court’s admonition might be sufficiently curative in some
situations, we do not believe it was sufficient in this case because
it failed to specifically address the prosecutor’s improper
statement. Cf. Harmon, 956 P.2d at 271. Accordingly, we conclude
that the trial court’s watered-down admonition did not adequately
cure the prejudicial effect of the prosecutor’s improper statement
and that Defendant was prejudiced by the remark.

CONCLUSION

¶30 The prosecutor’s final statement in closing argument
appealed to the jurors’ emotions, and it was therefore improper
and constituted prosecutorial misconduct. Moreover, when the
prosecutor’s statement is considered in conjunction with the
conflicting evidence of Defendant’s guilt, defense counsel’s
inability to address the prosecutor’s improper statement, and the
court’s nonspecific curative admonition, our confidence in the
verdict is undermined. We are convinced that there is a reasonable
likelihood that, in the absence of the prosecutor’s improper
statement, there would have been a more favorable result for
Defendant. Accordingly, we reverse Defendant’s rape conviction
and remand for a new trial on that charge.

5. (...continued)
admonition and on what kind of curative admonition to give turns
on some factor that we cannot perceive from the record, it is
incumbent on the trial court to explain the reasoning behind its
decision.

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