State v. Guzman

2018 UT App 93

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
FERNANDO ANTONIO GUZMAN,
Appellant.

Opinion
No. 20150925-CA
Filed May 24, 2018

Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 141911297

Hakeem Ishola and Carlos Navarro, Attorneys
for Appellant
Sean D. Reyes, Jennifer Paisner Williams, and Erin
Riley, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. ORME and JILL M. POHLMAN
concurred.

CHRISTIANSEN, Judge:

¶1 Defendant Fernando Antonio Guzman appeals his
conviction on one count of rape, a first degree felony. See Utah
Code Ann. § 76-5-402 (LexisNexis 2017). 1 Defendant contends
that the trial court erred in excluding evidence under rule 412 of
the Utah Rules of Evidence, that the trial court erroneously
admitted hearsay evidence and violated his constitutional right

1. Because recent amendments to section 76-5-402 do not impact
our analysis, we cite the current version of the Utah Code for
convenience.
 State v. Guzman

to confrontation, and that the State failed to produce sufficient
evidence at trial to support his conviction. We affirm.

BACKGROUND 2

¶2 In November 2011, Victim, who was then fifteen years
old, was a patient at a healthcare facility. Victim fled the facility
on foot and wound up on the freeway, where Defendant picked
her up. Defendant took Victim to the apartment he shared with
his mother. That night, Defendant had nonconsensual sexual
intercourse with Victim.

¶3 The next day, Defendant drove Victim back to the
healthcare facility, and Victim reported the incident to the
facility’s staff. Victim was then taken to Primary Children’s
Hospital, where a nurse performed a sexual assault examination.
The nurse introduced herself to Victim “as a nurse working with
Safe and Healthy Families” and stated that she “would be asking
[Victim] questions about why she was there and about her health
history and then [the nurse] would also want to do a physical
exam.” When the nurse asked Victim why she was there, Victim
“said she had been raped four times.” The nurse also asked
Victim if she was having any pain or had any injuries, and
Victim stated that “she had a sore throat and that she had
bruises on her neck, her stomach and her leg.” The nurse treated
Victim with an emergency contraceptive and with antibiotics for
possible exposure to sexually transmitted infections that might
result from “penile penetration.” “[B]ased upon the information
[she] got from [Victim] about ejaculation,” the nurse took swabs

2. “We view the facts in the light most favorable to the jury
verdict and recite them accordingly.” State v. Loose, 2000 UT 11,
¶ 2, 994 P.2d 1237. “We present conflicting evidence only as
necessary to understand issues raised on appeal.” State v.
Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346.

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 State v. Guzman

from Victim’s stomach, vaginal cavity and surrounding areas,
and anus, and assembled a sexual assault kit.

¶4 A detective interviewed both Defendant and Victim.
During his interview with Defendant, the detective explained to
Defendant that Victim alleged he had raped her. Defendant
denied having any sexual contact whatsoever with Victim. The
detective collected a sample of Defendant’s DNA via buccal
swab—“a method of collecting DNA by swabbing the interior
surface of a person’s cheek.” See State v. White, 2016 UT App 241,
¶ 4, 391 P.3d 311. The detective took the swab and Victim’s
sexual assault kit to the state crime lab for processing.

¶5 A forensic biologist tested Victim’s swabs for seminal
fluid and was able to “identif[y] sperm on . . . the vaginal swabs,
anal swabs and stomach swabs.” A DNA expert determined that
Defendant’s DNA matched the DNA found on Victim’s swabs.
The DNA expert later testified that the chances of an unrelated
individual, randomly drawn from the population, matching the
DNA profile “turns out to be in Caucasians 1 in 44 sextillion, in
blacks it would be 1 in 350 sextillion, and in southwestern
Hispanics it would be one in 340 quintillion.” 3

¶6 The State initially charged Defendant with four counts of
rape and one count of object rape, all first degree felonies, but
later dropped one of the rape counts. At the preliminary hearing,
Victim testified that she “had lied when she claimed there had
been any sexual conduct between her and Defendant.” 4 Based on

3. A quintillion is 1 followed by 18 zeros (1018) and a sextillion is
1 followed by 21 zeros (1021).

4. Both parties acknowledge that, during the preliminary
hearing, the trial court’s tape recording device stopped working.
The parties later stipulated to the facts regarding Victim’s
preliminary hearing testimony.

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Victim’s preliminary hearing recantation, Defendant filed a
motion pursuant to rule 412 of the Utah Rules of Evidence,
seeking to admit evidence that Victim was truthful in saying she
had “not [been] raped this time because she had truthfully
reported other rape incident[s] in the past.” The trial court
denied Defendant’s motion.

¶7 During the pretrial conference, the prosecutor indicated
that he had not been able to locate Victim, and the court
continued the trial date to allow the State to subpoena additional
witnesses. At the beginning of trial, when Victim failed to
appear, the State informed the court that it intended to “offer[]
[Victim’s] explanation as to what happened to her through Rule
of Evidence 803(4), statements made for medical diagnosis or
treatment.” Specifically, the State asserted that it intended to call
the nurse to testify about Victim’s statements during the medical
examination that she had been raped multiple times. Defense
counsel objected, arguing that Victim did not make the
statements to the nurse for the purpose of medical diagnosis or
treatment and that his only opportunity to cross-examine Victim
had been at the preliminary hearing. Defense counsel also
indicated that he would not seek to admit Victim’s preliminary
hearing testimony. The trial court ruled that

to the extent the statements made by [Victim] to
medical providers were provided for the purpose
of diagnosis or treatment, and those statements
were related to medical diagnosis or treatment,
then those statements carry the guarantee of
trustworthiness and [are] entitled to this exception,
and so . . . to the extent that testimony fits into that
criteria, those statements will be allowed.

¶8 Before closing arguments, defense counsel moved for a
directed verdict on counts two through four (two counts of rape
and one count of object rape). The trial court dismissed the object
rape count but denied Defendant’s motion on the two counts of

20150925-CA 4 2018 UT App 93
 State v. Guzman

rape. The jury convicted Defendant on one count of rape.
Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶9 Defendant makes several arguments on appeal. First, he
contends that his “rights to cross-examination and to present a
complete defense [were] abridged when the [trial] court denied
his Rule 412 motion seeking admission of rebuttal evidence to
show that [Victim] knew how to report a true rape to the
authorities.” “We review the trial court’s underlying evidentiary
determinations for abuse of discretion.” State v. Clark, 2009 UT
App 252, ¶ 10, 219 P.3d 631. However, the alleged “denial of the
right to confront and cross-examine witnesses presents a
question of law which is reviewed for correctness.” Id.
(quotation simplified).

¶10 Second, Defendant contends that he “was denied the right
of confrontation when [Victim] voluntarily abstained from trial,
and third party witnesses testified that [Victim] told them out-of-
court that [Defendant] raped her, contrary to what she said at
[the] preliminary hearing.” As part of this argument, Defendant
contends that the trial court’s admission of Victim’s hearsay
statements under rule 803(4) of the Utah Rules of Evidence “was
problematic.” When reviewing rulings on hearsay evidence, we
review legal questions regarding admissibility for correctness,
questions of fact for clear error, and the trial court’s final ruling
on admissibility for abuse of discretion. State v. Rhinehart, 2006
UT App 517, ¶ 10, 153 P.3d 830. “Whether a defendant’s
confrontation rights have been violated is a question of law,
reviewed for correctness.” State v. Garrido, 2013 UT App 245, ¶ 9,
314 P.3d 1014.

¶11 Third, Defendant contends that “[t]he evidence presented
by the State was insufficient to convict [him] of rape.” Defendant
concedes that this argument was not preserved in the trial court

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and seeks review under the ineffective-assistance-of-counsel and
plain-error exceptions to the preservation requirement. See State
v. Allgood, 2017 UT App 92, ¶ 19, 400 P.3d 1088 (“Appellate
courts generally will not consider an issue raised for the first
time on appeal absent plain error, exceptional circumstances, or
ineffective assistance of counsel.” (quotation simplified)). “An
ineffective assistance of counsel claim raised for the first time on
appeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6,
89 P.3d 162. A “trial court plainly errs if it submits the case to the
jury and thus fails to discharge a defendant when the
insufficiency of the evidence is apparent to the court.” State v.
Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346. “[T]o establish plain error,
a defendant must demonstrate first that the evidence was
insufficient to support a conviction of the crime charged and
second that the insufficiency was so obvious and fundamental
that the trial court erred in submitting the case to the jury.” Id.
When a defendant challenges the sufficiency of the evidence, we
review “the evidence and all inferences drawn therefrom in a
light most favorable to the jury’s verdict.” Id. ¶ 18.

¶12 Fourth, Defendant contends that “[c]umulative error
warrants reversal of [his] conviction and a new trial ordered.”
“Under the cumulative error doctrine, we apply the standard of
review applicable to each underlying claim or error and reverse
only if the cumulative effect of multiple errors undermines our
confidence that a fair trial was had.” State v. Yalowski, 2017 UT
App 177, ¶ 16, 404 P.3d 53 (quotation simplified).

ANALYSIS

I. Utah Rule of Evidence 412

¶13 Defendant contends that “[t]he court denied [him] the
right to present a complete defense by not allowing him to
present evidence of [Victim’s] prior rape incidents to rebut the
State’s theory and show that [Victim] knew how to report a true

20150925-CA 6 2018 UT App 93
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rape.” According to Defendant, admission of Victim’s prior rape
accusations would have illustrated that Victim “had truthfully
reported other rape incidents in the past” and that she “was thus
truthful when she said [at the preliminary hearing that] she was
not raped this time.”

¶14 In a criminal proceeding involving alleged sexual
misconduct, rule 412 of the Utah Rules of Evidence prohibits
admission of “evidence offered to prove that a victim engaged in
other sexual behavior” or “evidence offered to prove a victim’s
sexual predisposition.” Utah R. Evid. 412(a). Defendant concedes
that “the evidence [he] sought to introduce is generally barred
under Rule 412,” but he asserts that “evidence of [Victim’s] other
rape incidents/cases should have been admitted under the
exception allowing admission if excluding such would infringe
the right to effective cross-examination.” See id. R. 412(b)(3)
(“The court may admit the following evidence if the evidence is
otherwise admissible under these rules: . . . (3) evidence whose
exclusion would violate the defendant’s constitutional rights.”).

¶15 The trial court determined that

[e]vidence of [Victim’s] prior victimization and her
knowledge of how to report a rape is simply not
relevant . . . as to whether the Defendant raped her
under the facts of this matter. . . . The evidence of
[Victim’s] prior sexual activity and/or victimization
simply does not make it less probable or more
probable that [Defendant] raped or had sexual
intercourse with her in the instant matter.

The court further determined that under rule 403 of the Utah
Rules of Evidence, “the probative value of [Victim’s] prior sexual
conduct and reporting of sexual assault is substantially
outweighed by the danger of unfair prejudice to [Victim] and the
state, and has a great tendency to confuse and mislead the jury.”

20150925-CA 7 2018 UT App 93
 State v. Guzman

¶16 According to Defendant, he “anticipated rebutting the
State at trial with evidence showing that [Victim] truthfully
reported her other rape incidents to the authorities, and thus was
not lying at the preliminary hearing when she said [Defendant]
did not rape her.” “Conversely, should [Victim] revert at trial to
her out-of-court story, [Defendant] would not have needed the
evidence to be able to mount a complete defense because he
could have impeached [Victim] with her preliminary hearing
testimony and further damaged her already weakened
credibility.”

¶17 The State correctly observes that Victim’s preliminary
hearing testimony—that she “had lied when she claimed there
had been any sexual conduct between her and Defendant”—did
not come in at trial. Thus, according to the State, “any error in
omitting the evidence of [Victim’s] prior rape accusations under
Rule 412 was harmless because the jury never heard [Victim’s]
preliminary hearing recantation.” See generally State v. Clark, 2016
UT App 120, ¶ 8, 376 P.3d 1089 (observing that where an
appellant establishes a constitutional violation on appeal, the
State has the burden of demonstrating that the error was
harmless beyond a reasonable doubt). We agree.

¶18 At the beginning of trial, the State asserted that it planned
to introduce evidence of Victim’s medical examination and her
statements to the nurse. The State also noted that it understood
that the defense planned to offer the statement Victim made at
the preliminary hearing that “there was no sexual contact at all.”
The State informed the court that it would not object to the
admission of Victim’s preliminary hearing statement. The State
further asserted, however, that “once that evidence is in, Rule
806 of the Utah Rules of Evidence allows us to ask the officer
who interviewed [Victim] at the time for additional details, that
being a prior inconsistent statement with the statement made at
the preliminary hearing. That occurred prior to any motivation
to fabricate, thus meeting the Rule 806 exception.”

20150925-CA 8 2018 UT App 93
 State v. Guzman

¶19 Defense counsel responded by discussing the
admissibility of Victim’s medical examination and her
statements to the nurse, and he stated that “we’d be more than
happy to not mention what happened at the preliminary hearing
in order to prevent these random statements [from] being
brought in that we have no chance to challenge.” The trial court
clarified, “So you do not anticipate utilizing the preliminary
hearing for your purposes . . . .” Defense counsel replied, “No, I
think we can skip over that.” The court stated, “And if that
changes we can probably further address that later.” Despite the
fact that Victim’s statements to the nurse were later introduced
into evidence, defense counsel did not seek to introduce Victim’s
preliminary hearing testimony.

¶20 Even if we assume, without deciding, that the exclusion of
the evidence of Victim’s prior rape accusations violated
Defendant’s constitutional rights, we conclude that the exclusion
of that evidence was harmless beyond a reasonable doubt. As
mentioned, supra ¶ 16, Defendant’s trial strategy was to use
Victim’s prior rape accusations, in conjunction with her
preliminary hearing testimony recantation, to demonstrate that
Victim “truthfully reported her other rape incidents to the
authorities, and thus was not lying at the preliminary hearing
when she said [Defendant] did not rape her.” However, given
that defense counsel did not seek to admit Victim’s preliminary
hearing testimony after all, there was no need for defense
counsel to use the evidence of Victim’s prior rape accusations to
bolster her credibility and demonstrate that she was telling the
truth at the preliminary hearing; the jury simply never heard
Victim’s preliminary hearing recantation. Moreover, we agree
with the State that the trial court’s exclusion of the rule 412
evidence did not prevent Defendant from seeking to admit her
preliminary hearing rape recantation. Indeed, even without the
rule 412 evidence, the evidence of Victim’s preliminary hearing
recantation might well have been helpful to Defendant’s case,
although defense counsel had to consider whether the benefit of
the recantation would be outweighed by the detective’s being

20150925-CA 9 2018 UT App 93
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then able to recount Victim’s detailed account of the rapes the
day following the incident. 5

¶21 In sum, we conclude that any error in omitting the
evidence of Victim’s prior rape accusations was harmless
beyond a reasonable doubt.

II. Hearsay and the Right to Confrontation

¶22 Defendant contends that he “was denied the right of
confrontation when [Victim] voluntarily abstained from trial,
and third party witnesses testified that [Victim] told them out-of-
court that [Defendant] raped her, contrary to what she said at
[the] preliminary hearing.” Specifically, Defendant takes issue
with the nurse’s and the detective’s testimonies. We address the
nurse’s testimony first.

A. The Nurse’s Testimony

¶23 At the beginning of trial, the State observed that Victim
“has chosen not to attend this event” and indicated that it was
“anticipating offering her explanation as to what happened to
her through Rule of Evidence 803(4).” The State further indicated
that it was planning to ask the nurse “what statements were
made by [Victim] for purposes of the nurse doing the
examination.” Defense counsel argued that Victim’s “statements
regarding the [incident] would be inadmissible pursuant to
Crawford.” See generally Crawford v. Washington, 541 U.S. 36, 68
(2004) (“Where testimonial evidence is at issue, . . . the Sixth
Amendment[’s Confrontation Clause] demands what the
common law required: unavailability and a prior opportunity for
cross-examination.”). Defense counsel clarified that he did not

5. Defendant does not argue on appeal that defense counsel was
ineffective for not seeking to introduce Victim’s preliminary
hearing testimony.

20150925-CA 10 2018 UT App 93
 State v. Guzman

believe “Crawford would exclude discussion of [Victim’s]
examination, [but] simply the statements she made regarding
what happened.” Defense counsel asserted that “any statements
that [Victim] made regarding what happened should be
excluded from this proceeding.”

¶24 After a short recess, the trial court ruled:

With regard to the proposed testimony from the
nurse, to the extent the statements made by
[Victim] to medical providers were provided for
the purpose of diagnosis or treatment, and those
statements were related to medical diagnosis or
treatment, then those statements carry the
guarantee of trustworthiness and [are] entitled to
this exception, and so . . . to the extent that
testimony fits into that criteria, those statements
will be allowed.

¶25 During her testimony, the nurse stated, “I asked why
[Victim] was there, and she had told me that she had been raped,
and . . . she said she had been raped four times.” Defense
counsel objected and stated, “I believe that this is testimony not
related to the medical condition.” The trial court declined to
exclude the nurse’s testimony. 6

¶26 Defendant first asserts that admitting Victim’s “hearsay
statements” under rule 803(4) of the Utah Rules of Evidence
“was problematic.” He then asserts that “[a]dmitting [Victim’s]
testimonial hearsay through Nurse was even more problematic

6. Following defense counsel’s objection, the trial court held a
bench conference. That discussion does not appear in the trial
transcript, but the trial court apparently overruled defense
counsel’s objection and therefore allowed the State to proceed
with its questioning of the nurse.

20150925-CA 11 2018 UT App 93
 State v. Guzman

under the Confrontation Clause.” We first address Defendant’s
hearsay argument.

¶27 “‘Hearsay’ means a statement that: (1) the declarant does
not make while testifying at the current trial or hearing; and (2) a
party offers in evidence to prove the truth of the matter asserted
in the statement.” Utah R. Evid. 801(c). Hearsay is not admissible
except as provided by law or the Utah Rules of Evidence. See
id. R. 802.

¶28 Rule 803(4) of the Utah Rules of Evidence allows for the
admission of hearsay statements that are “made for—and [are]
reasonably pertinent to—medical diagnosis or treatment” and
“describe[] medical history; past or present symptoms or
sensations; their inception; or their general cause.” “If the
statement meets both [of rule 803(4)’s] qualifications, it is
admissible because of the ‘patient’s strong motivation to be
truthful’ when discussing his or her medical condition with a
doctor.” 7 Hansen v. Heath, 852 P.2d 977, 979 (Utah 1993) (quoting
Fed. R. Evid. 803(4) advisory committee note), superseded by
statute on other grounds as recognized in Lancer Ins. Co. v. Lake Shore
Motor Coach Lines, Inc., 2017 UT 8, 391 P.3d 218. “Such statements
carry a ‘guarantee of trustworthiness’ entitling them to an
exception from the mandates of the hearsay rule.” Id. (quoting
Fed. R. Evid. 803(4) advisory committee note).

¶29 We acknowledge that Victim’s statement to the nurse that
she had been raped four times constitutes hearsay, in that the
out-of-court statement was introduced at Defendant’s trial to

7. “Statements made for purposes of medical diagnosis and
treatment ‘need not have been made to a physician. Statements
to hospital attendants, ambulance drivers, or even members of
the family might be included.’” Fox v. Brigham Young Univ., 2007
UT App 406, ¶ 17 n.2, 176 P.3d 446 (quoting Fed. R. Evid. 803(4)
advisory committee note).

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 State v. Guzman

prove the truth of the matter asserted, i.e., that Victim had been
raped. See Utah R. Evid. 801(c). Nevertheless, we conclude that
the evidence was admissible under rule 803(4).

¶30 The record demonstrates that Victim’s statements to the
nurse were made for the purpose of medical diagnosis or
treatment. The nurse testified that she introduced herself to
Victim “as a nurse working with Safe and Healthy Families” and
that she told Victim that she “would be asking her questions
about why [Victim] was there and about [Victim’s] health
history and then [she] would also want to do a physical exam.”
The nurse stated that Victim appeared to understand how the
nurse was going to “treat her or examine her.” The nurse stated
that asking Victim “why she’s there” was important for the
physical exam and knowing “what parts of the body we want to
examine. And then also if they are complaining of a rape or
sexual assault, we would definitely want to examine closely the
genitals.”

¶31 The nurse testified that Victim reported that “she had
been raped four times.” The nurse then asked Victim “if she was
having any pain or if she had any injuries or if she was
bleeding,” and Victim stated that she “had a sore throat and that
she had bruises on her neck, her stomach and her leg.” Victim
also stated that “she had been touched on different parts of her
body” and that “her arms were held down and that she was
choked.” The nurse stated that the information from Victim
helped her know “where to look when [she] did the physical
examination”: “We’d want to make sure and examine her neck
closely for any trauma there and then also assess her arms to see
if there was anything, . . . bruises, any injuries to the bones or
anything like that.” The nurse further testified that, “because
there was ejaculation into the vagina,” she gave Victim an
emergency contraceptive. In addition, upon “seeing [a] history
of penile penetration,” the nurse gave Victim antibiotics “to treat
for possible exposure to Chlamydia and Gonorrhea.” The nurse
took swabs from Victim’s stomach, vaginal cavity and

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surrounding areas, and anus based on Victim’s report regarding
ejaculation.

¶32 Based on the foregoing, we conclude that the trial court
properly exercised its discretion when it admitted Victim’s
statements to the nurse under rule 803(4). Victim’s statements
suggest they were made for purposes of medical treatment or
diagnosis, and the statements allowed the nurse to address the
possibility of injuries, pregnancy, and sexually transmitted
diseases.

¶33 Defendant also asserts that his Sixth Amendment right to
confront witnesses was violated by the nurse’s testimony. The
Sixth Amendment’s Confrontation Clause provides, “In all
criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him[.]” U.S. Const.
amend. VI; see also Utah Const. art. I, § 12 (“In criminal
prosecutions the accused shall have the right . . . to be
confronted by the witnesses against him[.]”). In Crawford v.
Washington, 541 U.S. 36 (2004), the United States Supreme Court
explained that the Confrontation Clause “applies to ‘witnesses’
against the accused—in other words, those who ‘bear
testimony.’” Id. at 51. The Court held that testimonial statements
by witnesses absent from trial are admissible “only where the
declarant is unavailable, and only where the defendant has had a
prior opportunity to cross-examine.” Id. at 59; id. at 68 (“Where
testimonial evidence is at issue, . . . the Sixth Amendment
demands what the common law required: unavailability and a
prior opportunity for cross-examination.”). “To rank as
‘testimonial,’ a statement must have a ‘primary purpose’ of
‘establish[ing] or prov[ing] past events potentially relevant to
later criminal prosecution.’” Bullcoming v. New Mexico, 564 U.S.
647, 659 n.6 (2011) (alterations in original) (quoting Davis v.
Washington, 547 U.S. 813, 822 (2006)); see also Ohio v. Clark, 135 S.
Ct. 2173, 2180 (2015) (“In the end, the question is whether, in
light of all the circumstances, viewed objectively, the primary

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purpose of the conversation was to create an out-of-court
substitute for trial testimony.” (quotation simplified)).

¶34 Defendant asserts, in a single sentence, that Victim’s “out-
of-court statements were ‘testimonial’ because [Victim] was
driven to the hospital by non-medical practitioners after
reporting being raped.” 8 But Defendant offers no analysis or case
law supporting this claim; he fails to explain how the identity of
the person who transported Victim to the hospital for the exam
relates to the primary purpose of Victim’s statements to the
nurse at the hospital. By neglecting to do so, Defendant has
failed to carry his burden of demonstrating that Victim’s out-of-
court statements were testimonial and that his confrontation
rights were violated. 9

¶35 Defendant further asserts that the medical diagnosis and
treatment exception “generally does not permit admitting
hearsay where the victim names the perpetrator while seeking
medical treatment.” Defendant asserts that Victim “identified
[Defendant] to [the nurse] as the perpetrator when his identity
was not critical to medical history, diagnosis, or treatment.” In
support of this argument, Defendant cites the following
exchange between the prosecutor and the nurse at trial:

8. The identity of the “non-medical practitioners” is unclear.

9. Defendant also contends that “neither of the parties’ counsel
nor the court contemplated instructing the jury to disregard
Nurse’s testimony, which exceeded the scope of medical
diagnosis, or attempt[ed] to alleviate its impact for
Confrontation Clause purposes.” According to Defendant, “[his]
counsel was either ineffective or it was plain error for the court
to not caution the jury.” Given our resolution of Defendant’s rule
803(4) and Confrontation Clause arguments, we have no
occasion to address this argument further.

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 State v. Guzman

Q [A]fter you got that general history of her
current condition, . . . [d]id she talk about any other
touching by the defendant?

A She did say that she had been touched on
different parts of her body. She said her arms were
held down and that she was choked.

Defendant asserts, in a footnote, that “[t]o the extent counsel
failed to object, then this Court should review for plain error as it
should have been obvious to the court that such testimony
exceed[ed] the scope of medical diagnosis and was inconsistent
with Crawford.”

¶36 “To demonstrate plain error, a defendant must establish
that (i) an error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful . . . .” State v. Dean,
2004 UT 63, ¶ 15, 95 P.3d 276 (quotation simplified). “To
establish that the error should have been obvious to the trial
court, [a defendant] must show that the law governing the error
was clear at the time the alleged error was made.” Id. ¶ 16.
Consequently, “an error is not obvious if there is no settled
appellate law to guide the trial court.” State v. Vu, 2017 UT App
179, ¶ 13, 405 P.3d 879 (quotation simplified).

¶37 We first note that there is no testimony from the nurse
explicitly stating that Victim reported that Defendant was her
assailant. To the extent that the nurse’s answer to the
prosecutor’s question can be read as an implicit
acknowledgement that Victim had reported that Defendant held
down and choked Victim, Defendant has failed to demonstrate
that the alleged error should have been obvious to the trial court.

¶38 Defendant has not cited, and we are not aware of, any
Utah law holding that a patient’s identification of the person
who injured him or her exceeds the scope of medical treatment
and diagnosis. Moreover, the law in this area does not appear to

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be plainly settled by outside state or federal case law. See, e.g.,
United States v. Gabe, 237 F.3d 954, 958 (8th Cir. 2001) (“In cases
of sex abuse, the identity of the abuser may be relevant to
treating the victim’s emotional and psychological injuries. For
this reason, we have upheld the admission of hearsay statements
identifying the abuser to a physician where the physician makes
clear to the victim that the inquiry into the identity of the abuser
is important to diagnosis and treatment, and the victim
manifests such an understanding.” (quotation simplified)); Clark
v. State, 199 P.3d 1203, 1205, 1213 (Alaska Ct. App. 2009)
(observing that “the medical diagnosis and treatment hearsay
exception does not normally encompass a patient’s identification
of the person who hurt them or a patient’s attributions of fault,”
but concluding that the victim’s statements were nontestimonial
for Confrontation Clause purposes where the “circumstances
objectively establish that [the victim] and the emergency room
personnel shared the primary purpose of obtaining/providing
proper medical care for [the victim]”); People v. Cage, 155 P.3d
205, 218 (Cal. 2007) (concluding, where a doctor asked the
patient “what happened” and the patient identified his assailant,
that the patient’s testimony was nontestimonial because the
doctor’s question was “neutral in form”; the doctor “did not
pursue that avenue further”; and “[o]bjectively viewed, the
primary purpose of the question, and the answer, was not to
establish or prove past facts for possible criminal use, but to help
[the doctor] deal with the immediate medical situation”).

¶39 Additionally, a trial court is “not required to constantly
survey or second-guess a nonobjecting party’s best interests or
trial strategy and is not expected to intervene in the proceedings
unless the evidence would serve no conceivable strategic
purpose.” State v. Bedell, 2014 UT 1, ¶ 26, 322 P.3d 697 (quotation
simplified). “Further, the court should take measures to avoid
interfering with potential legal strategy or creating an
impression of a lack of neutrality.” Id. Consequently, “plain error
does not exist when a conceivable strategic purpose exists to
support the use of the evidence.” Id. (quotation simplified). Here,

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 State v. Guzman

the trial court could reasonably have determined that defense
counsel strategically chose not to object to this portion of the
nurse’s testimony in order to highlight during closing argument
that the nurse never actually testified that Victim had reported to
her that Defendant was her assailant. Consequently, we cannot
conclude that any error in admitting an implicit identification of
Defendant should have been obvious to the trial court.

¶40 In sum, we conclude that Victim’s statements to the nurse
were admissible under rule 803(4) as statements made for
purposes of medical diagnosis or treatment. See Utah R. Evid.
803(4). In addition, Defendant has failed to demonstrate that his
Sixth Amendment right to confrontation was violated.

B. The Detective’s Testimony

¶41 Defendant also contends that admitting the detective’s
testimony was a “more egregious[]” violation of his right to
confrontation than admitting the nurse’s testimony because the
detective’s testimony relayed Victim’s accusation that Defendant
had raped her.

¶42 Defendant observes that at trial, the prosecutor asked the
detective, “Did you explain to [Defendant] why you wanted to
talk to him?” The detective replied, “I did. I explained that there
[were] allegations made by [Victim] claiming that she alleged
that [he] had raped her.” According to Defendant, the detective’s
“testimony that [Victim] claimed [Defendant] raped her” was
“simply a roundabout way of making it known to the jury that
[Victim] had accused [Defendant] of rape, and that [the
detective] believed [Victim] was truthful.” Defendant
acknowledges that defense counsel did not object to the
detective’s testimony and that “this error was unpreserved.”
Defendant asserts that “the plain error, exceptional
circumstances and [ineffective assistance of counsel] rules
apply.”

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 State v. Guzman

¶43 The Utah Supreme Court has held that “unpreserved
federal constitutional claims are not subject to a heightened
review standard but are to be reviewed under our plain error
doctrine.” State v. Bond, 2015 UT 88, ¶ 44, 361 P.3d 104. Again, to
establish plain error, Defendant “must demonstrate (1) that there
was an error, (2) that it should have been obvious to the trial
court, and (3) that it was harmful.” Id. ¶ 48. “An error is harmful
if, absent the error, there is a reasonable likelihood of a more
favorable outcome for the appellant, or phrased differently, if
our confidence in the verdict is undermined.” Id. ¶ 49 (quotation
simplified). Like preserved claims of non-constitutional error,
Defendant bears the burden of demonstrating prejudice. See State
v. Clark, 2016 UT App 120, ¶ 9, 376 P.3d 1089.

¶44 As previously discussed, “where testimonial evidence is
at issue,” “the Sixth Amendment demands what the common
law required: unavailability and a prior opportunity for cross-
examination.” Crawford v. Washington, 541 U.S. 36, 68 (2004).
However, in Crawford, the Supreme Court explained that the
Confrontation Clause is not violated when testimonial
statements are admitted for purposes other than establishing the
truth of the matter asserted. See id. at 59 n.9 (citing Tennessee v.
Street, 471 U.S. 409, 414 (1985)); see also, e.g., Williams v. Illinois,
567 U.S. 50, 70 (2012) (plurality opinion) (“Crawford, while
departing from prior Confrontation Clause precedent in other
respects, took pains to reaffirm the proposition that the
Confrontation Clause does not bar the use of testimonial
statements for purposes other than establishing the truth of the
matter asserted.” (quotation simplified)); People v. Cage, 155 P.3d
205, 211 n.6 (Cal. 2007) (“Crawford made clear that there are no
confrontation clause restrictions on the introduction of out-of-
court statements for nonhearsay purposes.”).

¶45 Here, even assuming that Victim’s statement to the
detective was testimonial, its admission did not violate
Defendant’s right to confrontation, because the statement was
not offered at trial to prove the truth of the matter asserted. See

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 State v. Guzman

Crawford, 541 U.S. at 59 n.9; see also Street, 471 U.S. at 413–14
(concluding, where the prosecutor did not introduce an
accomplice’s out-of-court confession to prove the truth of the
accomplice’s assertions, that the confession was not hearsay and
that the “nonhearsay aspect of [the accomplice’s] confession . . .
raise[d] no Confrontation Clause concerns”); Utah R. Evid.
801(c). Rather, the context of the detective’s testimony indicates
that his recitation of Victim’s accusation against Defendant was
offered not to establish that Defendant had raped Victim, but to
explain the reason for the interview. Specifically, the detective
needed to speak with Defendant regarding an allegation of rape.
Accordingly, there was no Confrontation Clause violation, and
thus, no error.

¶46 Nevertheless, Defendant asserts that, “but for [the
detective’s] testimony, which corroborates [the nurse’s
testimony] on [the single rape conviction] alone, the jury would
have acquitted [him] of Count 1 as it did with Counts 2 & 3.” We
are not persuaded. Even without the detective’s testimony, the
DNA evidence was sufficient for a reasonable jury to find that
Defendant and Victim had sexual intercourse at least once, and
the jury could have reasonably believed the nurse’s testimony
that Victim reported that she had been raped. Infra ¶ 53. We
conclude that the detective’s testimony did not violate
Defendant’s right to confrontation and that Defendant cannot
demonstrate that the trial court plainly erred in this regard. See
Bond, 2015 UT 88, ¶ 48.

¶47 Defendant also asserts that defense counsel was
ineffective for not objecting to the detective’s testimony
regarding Victim’s statements. To demonstrate ineffective
assistance of counsel, a defendant must show that defense
counsel’s performance was deficient and that this deficient
performance prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). Because the detective’s testimony did not
violate Defendant’s confrontation rights, any objection on
Confrontation Clause grounds would have been futile. State v.

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 State v. Guzman

Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52 (“The failure of counsel to
make motions or objections which would be futile if raised does
not constitute ineffective assistance.” (quotation simplified)).
Accordingly, defense counsel’s failure to object did not
constitute ineffective assistance. 10

III. Sufficiency of the Evidence

¶48 Defendant contends that the State’s evidence was
insufficient to convict him of rape. Defendant concedes that his
challenge to the sufficiency of the evidence is unpreserved, 11 and

10. Defendant also asserts that “the State invited this error” by
not filing a pretrial brief on the “admissibility of [Victim’s]
hearsay” and by “deliberately walking [the detective] straight
into the unnecessary testimony.” According to Defendant,
“because the State invited the error, exceptional circumstance
warrants review and reversal.” “The exceptional circumstances
doctrine is applied sparingly, reserving it 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.” State v. Johnson, 2017 UT 76, ¶ 29 (quotation
simplified). The doctrine applies “where a rare procedural
anomaly has either prevented an appellant from preserving an
issue or excuses a failure to do so.” Id. (quotation simplified).
Although it is unclear, Defendant’s reference to the State’s
“invited error” appears to be an attempt to assert a prosecutorial
misconduct claim. Either way, Defendant provides no analysis
as to why an error of this type constitutes an exceptional
circumstance. Accordingly, we decline to address this assertion
further.

11. Before closing arguments, defense counsel moved for a
directed verdict on counts two (rape), three (rape), and four
(object rape), but not count one (rape). The State conceded to the
directed verdict on count four, and the trial court dismissed that
(continued…)

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 State v. Guzman

he therefore challenges the sufficiency of the evidence under the
plain-error and ineffective-assistance exceptions to the
preservation rule. 12

¶49 To establish plain error regarding the sufficiency of the
evidence, “an appellant must show ‘first that the evidence was
insufficient to support a conviction of the crime[s] charged and
second that the insufficiency was so obvious and fundamental
that the trial court erred in submitting the case to the jury.’” State
v. Diaz, 2002 UT App 288, ¶ 32, 55 P.3d 1131 (alteration in
original) (quoting State v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346).

¶50 “We first examine the record to determine whether, ‘after
viewing the evidence and all inferences drawn therefrom in a

(…continued)
count. With regard to counts two and three, defense counsel
argued that “there’s been evidence supporting a possible finding
of one count [of rape] but nothing to suggest there were multiple
counts.” The trial court ultimately denied Defendant’s motion
for directed verdict on counts two and three and submitted the
three counts of rape to the jury. On appeal, Defendant observes
that defense counsel moved for directed verdicts on counts two
through four, and he acknowledges that “it very well may be
that counsel believed it would be futile to move for dismissal on
Count 1.”

12. Defendant also asserts that we should address this issue
under the exceptional-circumstances exception to the
preservation rule. Again, this exception applies “where a rare
procedural anomaly has either prevented an appellant from
preserving an issue or excuses a failure to do so.” Id. (quotation
simplified). Defendant has failed to present any rare procedural
anomaly or other exceptional circumstance that might justify his
failure to preserve his sufficiency of the evidence argument. See
id. Accordingly, we decline to address this argument further.

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 State v. Guzman

light most favorable to the jury’s verdict, the evidence is
sufficiently inconclusive or inherently improbable such that
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime[s] for which he or she was
convicted.’” Id. ¶ 33 (alteration in original) (quoting Holgate, 2000
UT 74, ¶ 18). “Only then will we undertake an examination of
the record to determine ‘whether the evidentiary defect was so
obvious and fundamental that it was plain error to submit the
case to the jury.’” Id. (quoting Holgate, 2000 UT 74, ¶ 18).

¶51 “A person commits rape when the actor has sexual
intercourse with another person without the victim’s consent.”
Utah Code Ann. § 76-5-402(1) (LexisNexis 2017). Accordingly, in
this case, the State was required to present evidence
demonstrating that Defendant had nonconsensual sexual
intercourse with Victim. See id.

¶52 At trial, the nurse testified that Victim had reported that
“she had been raped four times.” The nurse further testified that
“there was ejaculation into [Victim’s] vagina” and that based on
that information, she took swabs from Victim’s stomach, vaginal
cavity and surrounding areas, and anus. The forensic biologist
testified that she tested the swabs for seminal fluid and was able
to “identif[y] sperm on . . . the vaginal swabs, anal swabs and
stomach swabs.” The DNA expert testified about the “five basic
steps” in DNA analysis generally and about her DNA analysis in
this case specifically. She stated that Defendant’s DNA matched
the DNA found in Victim’s sexual assault kit. The DNA expert
testified that the probability of an unrelated individual,
randomly drawn from the population, matching the DNA
profile “turns out to be in Caucasians 1 in 44 sextillion, in blacks
it would be 1 in 350 sextillion, and in southwestern Hispanics it
would be one in 340 quintillion.”

¶53 Defendant asserts that “detracting from the foregoing”
evidence is the fact that he “denied having [a] sexual encounter
with [Victim], consensual or otherwise,” and the fact that the

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 State v. Guzman

jury acquitted him of two counts of rape, thus “illustrating that
the State’s case was not ‘utterly’ overwhelming.” But as the State
notes, this argument “ignores the physical DNA evidence in the
case.” The DNA evidence revealed the presence of Defendant’s
DNA in Victim’s vagina, and while the DNA evidence does not
necessarily support multiple instances of sexual intercourse
between Defendant and Victim, it does support a finding that
Defendant and Victim had sexual intercourse at least once. And
even though the nurse testified that Victim reported that she had
been raped multiple times, which supports the element of
nonconsent, a reasonable jury could have determined that the
evidence only supported a finding that Defendant raped Victim
one time.

¶54 Reviewing the evidence and the reasonable inferences
that result from examining the evidence, we see nothing to
suggest that “reasonable minds must have entertained a
reasonable doubt” that Defendant had nonconsensual sexual
intercourse with Victim. See State v. Holgate, 2000 UT 74, ¶ 18, 10
P.3d 346 (quotation simplified). Thus, there was sufficient
evidence to convict Defendant of one count of rape, and we
conclude that the trial court did not commit plain error in
submitting the matter to the jury for determination.

¶55 Defendant also asserts that defense counsel “was
constitutionally ineffective for not making the motion for a
directed verdict on count 1.” Again, to demonstrate ineffective
assistance of counsel, a defendant must show that defense
counsel’s performance was deficient and that this deficient
performance prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). However, “the failure of counsel to make
motions or objections which would be futile if raised does not
constitute ineffective assistance.” State v. Whittle, 1999 UT 96,
¶ 34, 989 P.2d 52 (quotation simplified). Here, Defendant denied
having any sexual contact with Victim, and yet his DNA was
found inside of Victim’s vagina. Moreover, the nurse testified
that Victim had reported that she had been raped. Consequently,

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 State v. Guzman

there was sufficient evidence to support the jury’s verdict of one
count of rape, and defense counsel therefore did not render
deficient performance by failing to move for a directed verdict
on count one.

IV. Cumulative Error

¶56 Finally, Defendant contends that “[c]umulative error
warrants reversal of [his] conviction and a new trial ordered.”
“Under the cumulative error doctrine, we will reverse only if the
cumulative effect of the several errors undermines our
confidence that a fair trial was had.” State v. Dunn, 850 P.2d 1201,
1229 (Utah 1993) (quotation simplified). “In assessing a claim of
cumulative error, we consider all the identified errors, as well as
any errors we assume may have occurred.” Id.

¶57 After considering the circumstances of this case and the
resolution of Defendant’s other claims on appeal, our confidence
that Defendant received a fair trial has not been undermined. We
therefore reject Defendant’s cumulative error claim.

CONCLUSION

¶58 We conclude that any error in omitting the proposed
rule 412 evidence regarding Victim’s prior rape accusations was
harmless beyond a reasonable doubt. In addition, Victim’s
statements to the nurse were admissible under rule 803(4) as
statements made for purposes of medical diagnosis or treatment,
and Defendant has failed to demonstrate that his Sixth
Amendment right to confrontation was violated with regard to
both the nurse’s and the detective’s testimonies. Lastly, because
there was sufficient evidence to support the jury’s verdict, the
trial court did not plainly err by submitting the case to the jury.

¶59 Affirmed.

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