State v. Fahina

2017 UT App 111

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
PAULA TUITAVUKI FAHINA,
Appellant.

Opinion
No. 20151000-CA
Filed July 7, 2017

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 141912435

Nathalie S. Skibine and Ralph W. Dellapiana,
Attorneys for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.

POHLMAN, Judge:

¶1 Defendant Paula Tuitavuki Fahina appeals his conviction
for aggravated assault involving domestic violence, a third
degree felony. Fahina argues that the trial court erred in
admitting testimony at trial under the excited utterance
exception to the hearsay rule. We affirm.

BACKGROUND

¶2 Fahina and Victim met while she was residing at an
extended stay hotel in South Salt Lake City. They began a sexual
relationship that lasted for about a month and a half, during
 State v. Fahina

which time Fahina would stay overnight in Victim’s room three
or four nights a week. Fahina also kept some of his belongings in
Victim’s room.

¶3 Early one morning, after Victim and Fahina had
consensual sex, there was an incident in Victim’s room.
Following an investigation into that incident, the State charged
Fahina with aggravated sexual assault, forcible sodomy,
aggravated kidnapping, and aggravated assault involving
domestic violence. Fahina pleaded not guilty.

¶4 Victim testified at trial that after she had consensual sex
with Fahina, they began to argue. She explained that the
argument turned violent and Fahina pulled out a twelve-inch-
long serrated knife. She said that Fahina twice demanded that
she “get on the bed” while he alternated between holding the
knife above his head and pointing it at her.

¶5 According to Victim, she “got really scared” and
complied with Fahina’s demand. She said that Fahina told her to
get under the covers, but she refused because she was “scared he
would start stabbing” her. Fahina told Victim, “If you scream, I’ll
kill you.”

¶6 Victim then testified that, with the knife still in hand,
Fahina demanded that she perform oral sex on him. Victim
initially told Fahina no, but because she was “scared for [her]
life,” she did “whatever he wanted [her] to do,” and Fahina “just
kept pointing the knife” at her and “would stab it at” her when
she tried to stop.

¶7 Victim said that she eventually “got the nerve up” to try
to escape. She ran to and unlocked the door while screaming,
“He’s going to kill me.” But before Victim could open the door,
Fahina, still holding the knife, grabbed Victim and threw her
back into the room against the bed’s box spring, which broke
two of her ribs and punctured her lung. Terrified, Victim got up

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and again ran to the door. Having previously unlocked it, she
was now able to open it. A woman standing outside grabbed
Victim’s arm and took Victim, who was not dressed, to another
room to get some clothes.

¶8 Two other residents staying down the hall from Victim
testified that on the morning in question, they heard Victim
scream, “He’s going to kill me.” After hearing the scream, one
resident went into the hallway to investigate while the other
called 911. The resident in the hallway saw Victim run out of her
room naked and again heard her yell, “[H]e [is] going to kill me,
help me, come help me.” He then watched as Victim ducked into
another room, after which he saw Fahina run out of Victim’s
room holding a ten-to-fourteen-inch serrated knife. Fahina ran
past the resident to a stairwell marked “Exit.”

¶9 Upon receiving a call that a naked woman was screaming
for help at the hotel, a South Salt Lake City police officer
(Officer) responded. Officer testified that he first went to
Victim’s room but ultimately found her sitting on the curb in
front of the hotel’s main office “very distraught,” “crying,” and
injured. He testified that her hands were shaking and “wouldn’t
stay still,” and that “she seemed like she had just been in some
sort of difficult situation.”

¶10 After speaking to Victim, Officer escorted her to her room
to continue the interview and the investigation. He said that he
found her room in disarray, looking “very, very cluttered as if
some altercation had occurred.” The bedding was off the bed, a
bicycle was on its side in the middle of the room, and nail polish
was spilled on the carpet. Officer also found a knife sheath on
the bed.

¶11 When the prosecutor asked Officer what Victim had told
him when they first spoke, defense counsel objected on hearsay
grounds, arguing that the question sought to elicit testimonial
evidence in violation of the Sixth Amendment and Crawford v.

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Washington, 541 U.S. 36 (2004). The prosecutor responded that
Officer’s testimony was admissible under the excited utterance
exception to the rule against hearsay as set forth in Utah Rule of
Evidence 803(2). The prosecutor argued that the exception
applied because Victim was still under the stress of the event
when she spoke with Officer, and she was “still shaking,” “still
upset,” and “still crying.”

¶12 Defense counsel responded that Crawford applied, and the
court interjected that the prosecutor had not yet explained the
purpose for which she was offering the statement. Defense
counsel stated, “She’s offering it as an excited utterance. I guess
I’m going to—I’m not withdrawing my objection, but I’m going
to submit without further argument.” The trial court overruled
counsel’s hearsay objection, agreeing with the prosecutor that
based on Officer’s testimony that Victim “was shaking, crying,
and so forth,” the excited utterance exception applied.

¶13 Thereafter, Officer testified that Victim had told him that
she had engaged in consensual sex with Fahina, and that Fahina
“wasn’t pleased with it and he demanded oral sex.” Officer
further testified that Victim told him she “kept saying no and
then [Fahina] pulled out a knife” and demanded oral sex. Victim
told Officer that she “tried to get away, but she couldn’t, and
[Fahina] grabbed her and threw her back down in . . . the hotel
room.”

¶14 Fahina also testified at trial. He stated that the night
before the assault, he stayed in Victim’s room and they had sex.
He said that in the morning, Victim told him that she had fallen
in love with him. Fahina told her that she “shouldn’t have done
that,” and now he had to “cut ties” with her. Victim responded
by begging Fahina to stay a little longer and “one thing led to
another” and she performed consensual oral sex on him.

¶15 Fahina then testified that “out of the blue,” Victim said
she needed to get a drink. Instead, however, Victim opened the

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hotel room door and yelled, “He is go[ing] to stab me.”
According to Fahina, he thought Victim was in danger, so he
went to the door to investigate. He pushed her aside while “[s]he
kept screaming and screaming and screaming,” only to find that
no one was at the door. Fahina testified that he “was mad” and
his “heart started pounding,” so he dressed and left the room.
He further testified that Victim also left the room with no
clothing on the lower half of her body, walking in the opposite
direction. Fahina denied having a knife, threatening Victim, or
forcing Victim to perform oral sex.

¶16 In closing argument, defense counsel asserted that Victim
had been angry with Fahina and that she “exaggerat[ed] what
happened.” Defense counsel also strongly urged the jury to
acquit Fahina on the kidnapping and sexual assault charges, but
told the jury that Victim “was injured, she was pushed, some
kind of assault,” and that “maybe under these facts you would
find that . . . there is evidence . . . for [the assault] charge.”

¶17 The jury convicted Fahina of aggravated assault involving
domestic violence but acquitted him of aggravated sexual
assault, forcible sodomy, and aggravated kidnapping. Fahina
appeals.

ANALYSIS

¶18 The sole issue on appeal is whether the trial court
committed reversible error in admitting Victim’s out-of-court
statements to Officer under the excited utterance exception to the
rule against hearsay as set forth in Utah Rule of Evidence 803(2).

I. Preservation

¶19 Before addressing the merits, we consider the State’s
claim that the issue is unpreserved. Ordinarily, to preserve an
evidentiary issue for appeal, a defendant must enter an objection

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on the record that is both timely and specific. State v. Pinder, 2005
UT 15, ¶ 45, 114 P.3d 551; see also Utah R. Evid. 103(a)(1)
(requiring a timely and specific objection to the admission of
evidence to preserve a claim of error). This requirement ensures
that the trial court has “an opportunity to address a claimed
error and, if appropriate, correct it,” see Pratt v. Nelson, 2007 UT
41, ¶ 15, 164 P.3d 366 (citation and internal quotation marks
omitted), and it “prevents a party from avoiding [an] issue at
trial for strategic reasons only to raise the issue on appeal if the
strategy fails,” Wohnoutka v. Kelley, 2014 UT App 154, ¶ 3, 330
P.3d 762 (alteration in original) (citation and internal quotation
marks omitted).

¶20 The State concedes that Fahina objected on hearsay
grounds to the admission of Officer’s testimony regarding
Victim’s out-of-court statements. But the State argues that
Fahina’s claim on appeal is unpreserved because he “only
argued that the testimony was inadmissible hearsay under
Crawford v. Washington, 541 U.S. 36 (2004),” and he “never
argued below the claims that he now brings on appeal, i.e., that
the testimony was not admissible under the excited utterance
exception.”

¶21 The State is correct that Fahina’s argument against the
application of the excited utterance exception is more robust on
appeal than it was during trial. But as the Utah Supreme Court
clarified in Gressman v. State, 2013 UT 63, 323 P.3d 998, “[i]ssues
must be preserved, not arguments for or against a particular
ruling on an issue raised below.” Id. ¶ 45. “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].” Id.
(alteration in original) (citation and internal quotation marks
omitted).

¶22 Here, the trial court had an opportunity to rule on the
issue of whether the excited utterance exception applied.

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Defense counsel timely and specifically objected to the
prosecutor’s solicitation of hearsay testimony from Officer, and
the prosecutor argued for admission of the testimony based on
the excited utterance exception to the hearsay rule. The trial
court then overruled the objection based on the evidence
presented, and concluded that the excited utterance exception
applied.

¶23 Although Fahina did not previously articulate every
argument he now advances on appeal, he objected to the
admission of Officer’s testimony as hearsay and the trial court
ruled on the issue before us—whether the excited utterance
exception applies. Under these circumstances, we readily
conclude that the issue was preserved. See Fort Pierce Indus. Park
Phases II, III & IV Owners Ass’n v. Shakespeare, 2016 UT 28, ¶ 13,
379 P.3d 1218 (determining that “the district court’s decision to
take up [a] question conclusively overcame any objection that
the issue was not preserved for appeal”); see also Arbogast Family
Trust ex rel. Arbogast v. River Crossings, LLC, 2008 UT App 277,
¶ 11, 191 P.3d 39 (concluding that an issue was preserved
despite inadequate argument because the trial court ruled on the
specific question), aff’d sub nom. Arbogast Family Trust v. River
Crossings, LLC, 2010 UT 40, 238 P.3d 1035.

II. The Excited Utterance Exception

¶24 Having determined that the issue raised on appeal was
preserved, we turn our attention to its merits. Out-of-court
statements offered to prove the truth of the matter asserted are
inadmissible unless they fit within an exception to the rule
against hearsay. Utah R. Evid. 801(c), 802, 803, 804. “Exceptions
to the hearsay rule are based on factors that provide assurances
of testimonial reliability sufficient to dispense with the usual
means of purging testimony of error and falsehood, i.e., the oath,
cross-examination, and the trier of fact’s assessment of the

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declarant’s veracity.” State v. Smith, 909 P.2d 236, 239 (Utah
1995).

¶25 The “excited utterance” is one such exception. Utah R.
Evid. 803(2); Smith, 909 P.2d at 239. To qualify as an excited
utterance, the out-of-court statement must be “[a] statement
relating to a startling event or condition, made while the
declarant was under the stress of excitement that it caused.”
Utah R. Evid. 803(2). “The generally accepted rationale for the
exception is that declarations made during a state of excitement
temporarily still a declarant’s capacity to reflect and thereby
produce utterances free of conscious fabrication.” Smith, 909 P.2d
at 239–40.

¶26 Fahina contends that the trial court erred in admitting
under the excited utterance exception Officer’s testimony
reciting Victim’s account of the assault. Fahina argues that
Victim’s statements were not “spontaneous,” but a “deliberate
narrative provided to an investigating officer” that does not fit
within the “narrow” excited utterance exception. Fahina also
contends that the error was prejudicial because the statements
“bolstered [Victim’s] disputed testimony.” Fahina argues that
the jury’s verdict “reflects serious doubts” in Victim’s account of
the assault and that Officer’s supporting testimony “could have
tipped the scales in favor of conviction.”

¶27 In this instance, we need not determine whether the trial
court erred in admitting Officer’s testimony relating Victim’s
account of the assault. Assuming without deciding that the court
erred in admitting Officer’s testimony under the excited
utterance exception, Fahina has not shown that the admission
was harmful.

¶28 An evidentiary error “cannot result in reversible error
unless the error is harmful.” State v. Hamilton, 827 P.2d 232, 240
(Utah 1992); see also Utah R. Evid. 103(a) (“A party may claim
error in a ruling to admit or exclude evidence only if the error

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affects a substantial right of the party . . . .”). Harmfulness
requires “more than the mere possibility that the outcome might
have been different without the error.” State v. Powell, 2007 UT 9,
¶ 21, 154 P.3d 788. Instead, the appellant must show that,
“absent the error, there is a reasonable likelihood of a more
favorable outcome for the appellant, or phrased differently, our
confidence in the verdict is undermined.” Id. (citation and
internal quotation marks omitted).

¶29 When determining whether an alleged error was harmful,
we consider such factors as the importance of the relevant
testimony, whether the testimony was cumulative, and the
overall strength of the prosecution’s case. Hamilton, 827 P.2d at
240; State v. Hackford, 737 P.2d 200, 205 (Utah 1987). “The more
evidence supporting the verdict, the less likely there was
harmful error.” Hamilton, 827 P.2d at 240.

¶30 Here, Officer’s testimony relating what Victim told him
on the morning of the assault had minimal significance. Officer
was one of five witnesses to testify during the day-long trial and
his testimony regarding Victim’s out-of-court statements was
brief, comprising six sentences and less than nine lines of more
than one hundred pages of testimony. In addition, the disputed
testimony was never repeated or emphasized. Even when the
prosecutor discussed during closing argument the evidence that
corroborated Victim’s testimony, Officer’s hearsay testimony
was not mentioned.

¶31 The significance of the testimony reciting Victim’s out-of-
court statements was further minimized because it was
cumulative of Victim’s testimony regarding the assault. In State
v. Thomas, 777 P.2d 445 (Utah 1989), the Utah Supreme Court
held that the trial court committed harmless error in admitting
testimony regarding the out-of-court statements of the victim
under the excited utterance exception. Id. at 449–50. The court
determined that the error was harmless because “the officer’s

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testimony [reciting the victim’s out-of-courts statements] was
merely cumulative to that already testified to by the victim.” Id.
at 450. “Nothing new or additional was said in the interview
which the victim had not already testified to at trial.” Id.

¶32 Similarly, in this case, Officer added nothing new to
Victim’s testimony of the assault in her hotel room. Victim
testified that Fahina demanded oral sex from her while
threatening her with a knife; that she told him no; that she tried
unsuccessfully to escape; and that Fahina grabbed her and threw
her down. Officer’s more limited testimony repeating what
Victim told him did not enhance or enlarge the narrative.

¶33 Fahina argues that this case is distinguishable from
Thomas because the jury here was forced to make a “credibility
determination” as between Victim and Fahina due to their
significantly different accounts of the events in question. Fahina
argues that the jury’s acquittal on the charges for aggravated
sexual assault, forcible sodomy, and aggravated kidnapping
demonstrates that the jury harbored “serious doubts in
[Victim’s] account” and that Officer’s testimony repeating her
account “could have tipped the scales in favor of conviction.”

¶34 On the contrary, the most reasonable inference from the
split verdict is that the jurors were not convinced by Officer’s
testimony. Though brief, the challenged portion of his testimony
equally supported the aggravated sexual assault, forcible
sodomy, and aggravated kidnapping charges rejected by the
jury. Officer testified that Victim stated that Fahina threatened
her with a knife, demanded that she perform oral sex, and
stopped her from leaving the room when she tried to escape.
Had the jury found this testimony compelling, it likely would
have found Fahina guilty of the additional charges. The fact that
the jury found Fahina guilty of only one of the four charges that
Officer’s hearsay testimony supported suggests the jury did not
find it convincing.

20151000-CA 10 2017 UT App 111
 State v. Fahina

¶35 In fact, what likely “tipped the scales” in favor of guilt on
the aggravated assault charge was corroborating circumstantial
evidence. 1 Unlike the other charged offenses, Victim’s testimony
regarding the aggravated assault was corroborated by medical
records and photographs documenting Victim’s physical injuries
that she testified were incurred when Fahina pushed her down;
photographs of the knife sheath on the bed in Victim’s hotel
room; photographs of Victim’s room in disarray; Officer’s
testimony that when he found Victim on the morning of the
attack, “she seemed like she had just been in some sort of
difficult situation”; the testimony of the neighboring residents
who heard Victim’s screams that her life was being threatened;
and the testimony of one of those residents that he saw Fahina
run out of Victim’s room with the same type of knife Victim
described. Even defense counsel recognized the strength of the
State’s case against Fahina for aggravated assault, conceding to
the jury in closing argument that “maybe under these facts you
would find that . . . there is evidence . . . for [the assault] charge.”

¶36 Given the strength of the evidence supporting the one
charge of which Fahina was convicted, combined with the
limited and cumulative nature of Officer’s testimony regarding
Victim’s out-of-court statements, we cannot conclude there is a
reasonable likelihood that the jury would have acquitted Fahina
of the aggravated assault charge had that testimony not been

1. The jury was instructed that it could convict Fahina of
aggravated assault if he “a. Intentionally, knowingly, or
recklessly: i. Attempted to do bodily injury to [Victim]; ii. Made
a threat, accompanied by a show of immediate force or violence,
to do bodily injury to [Victim]; or iii. Committed an act that
caused bodily injury to [Victim] or created a substantial risk of
bodily injury to [Victim]; and b. At the time of the act, he used
i. A dangerous weapon; or ii. Other means or force likely to
produce death or serious bodily injury.”

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admitted. Fahina therefore has failed to carry his burden of
demonstrating that the trial court’s alleged error was harmful,
and we thus hold that the trial court did not commit reversible
error in allowing the disputed testimony.

CONCLUSION

¶37 In summary, even if the trial court erred in admitting
Officer’s testimony relating Victim’s statements under the
excited utterance exception to the rule against hearsay—on
which we express no opinion—Fahina has not shown that the
error was harmful given the brief and cumulative nature of the
testimony and the strength of the State’s case against him for
aggravated assault. Accordingly, we affirm.

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