State v. Carvajal

2018 UT App 12

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JOSE CARVAJAL,
Appellant.

Opinion
No. 20150990-CA
Filed January 19, 2018

Third District Court, West Jordan Department
The Honorable William K. Kendall
No. 141401240

Debra M. Nelson, Attorney for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee

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

TOOMEY, Judge:

¶1 Jose Carvajal, then in his late 40s, engaged in a romantic
relationship with Victim, a 14-year-old minor with intellectual
disabilities. Their relationship involved text communications
and ultimately became physical. When this was discovered,
Carvajal was charged with forcible sexual abuse, and the case
against him was tried by a jury. He appeals his conviction,
arguing that he received ineffective assistance of counsel,
that the court erred in several respects, and that cumulatively,
these errors undermine confidence in the verdict against him.
We affirm.
 State v. Carvajal

BACKGROUND

¶2 Victim and her family moved to the United States when
she was nearly 14 years old and initially lived with Victim’s
maternal aunt (Aunt) and Aunt’s husband (Uncle). Carvajal is
Uncle’s brother and lived in the same household. Victim
continued to visit there, even after she and her family moved
elsewhere.

¶3 Victim’s functional intellectual level is equivalent to that
of a 7-year-old child, and her intellectual disability affects her
memory. She attends a special education program.

¶4 Despite Victim’s youth and her significant intellectual
challenges, Carvajal apparently became infatuated with her: he
addressed her in romantic terms, told her he loved her, and told
her “that he wanted to marry” her. He blew kisses to Victim,
kissed her on the lips and mouth, caressed her, and hugged her
with what he described as “love and passion.” One day as they
sat next to one another on the couch, Carvajal touched Victim’s
breast, either under her bra or over her bra, for what she
variously characterized as fifteen minutes or not long. He held
his hand there, she took it off, and he put it back.

¶5 Soon after this incident, Victim’s mother discovered text
messages between Victim and Carvajal. In those messages,
Carvajal wrote: “You know I will tell you a secret[:] it is the
second time that I hug a woman but the first with so much love
and passion.” When Victim asked who was the first, he
responded “You Love.” When Victim asked if he wanted her to
be older or as she is “right now,” Carvajal responded, “Well I
love you very much as you are right now and if you were 23 or
more I would beg you that we would marry[.] I would beg you
to accept me . . . .” When Victim suggested she had other
boyfriends, he responded,

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 State v. Carvajal

Love if you want to be a girlfriend to one of your
friends it is because you really don’t love me[.]
[P]lease if you are doubting and thinking of telling
one of them that you will accept him then let me
know so that I don’t continue falling in love and let
me know so I don’t fall more in love and avoid
suffering any more.

They exchanged professions of love, in the form of words and
images, and Carvajal wrote, “I hope to be able one day for the
opportunity when we don’t have to hide.” Eleven days after this
exchange, Carvajal wrote to Victim, instructing her to “[e]rase
everything.”

¶6 At trial, Carvajal characterized his text messages to Victim
as “lead[ing] her on” and testified that their relationship would
“only be on the phone, but not in person.” But during a
conversation with Aunt before trial, Carvajal admitted that he
kissed Victim, dreamt about her, and wanted to marry her.

¶7 Victim’s parents reported their concerns to the police, and
a forensic interviewer spoke with Victim at the Children’s Justice
Center (the CJC), where Victim disclosed that Carvajal kissed her
on the mouth and, on another occasion, touched her under her
bra with his hand. The State charged Carvajal with one count of
forcible sexual abuse, a second-degree felony.

¶8 During trial, the jury watched a video of the CJC
interview with Victim and heard her testify. Victim’s testimony
was at times contradictory, and she was intermittently confused
and forgetful, but when asked whether the things she talked
about during the CJC interview had happened, she responded
“yes.” Although in the CJC interview she said Carvajal touched
her breast under her bra with his hand for about fifteen minutes,
she phrased it a little differently at trial: Carvajal’s hand went
“inside [her] shirt” and “[o]ver in [her] bra.” When asked how
long it lasted, she responded that “[i]t didn’t last long.”

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 State v. Carvajal

¶9 After the State rested its case, defense counsel moved for
a directed verdict on the basis that Victim testified that Carvajal
touched her “over her bra.” 1 Counsel also speculated, based on
an investigating officer’s recommendation that Carvajal be
charged with sexual battery, that perhaps Victim told a police
officer that Carvajal touched her over her clothing, and argued
that, if true, “that’s material exculpatory evidence.” Accordingly,
defense counsel moved for a continuance to “further investigate”
the matter. The district court denied both motions and trial
proceeded.

¶10 Carvajal testified and denied touching Victim. He claimed
Victim’s parents manipulated her into fabricating the abuse
because they were involved in a bitter inter-family lawsuit and
also were seeking a type of visa that would allow them to stay in
the United States based on Victim being the victim of a sex
offense. He admitted telling Aunt that he had kissed Victim but
testified he was lying when he did that because he “was trying
to see if [Aunt] was on [his] side or not . . . .”

¶11 Defense counsel had “[n]o objections” to jury instructions
that explained that forcible sexual abuse could be committed by,
among other things, “touch[ing] the breasts of a female, or
otherwise tak[ing] indecent liberties.” Another instruction
explained that “‘[t]ouching’ must be skin-to-skin; contact made
over the clothing does not constitute ‘touching’ for purposes of
this instruction.” Another defined “indecent liberties” as
“conduct that is as serious as touching . . . the breast of a female”
and added that “[t]ouching that occurs over clothing may
constitute the taking of indecent liberties when, considering all
the surrounding circumstances, the conduct is comparable to the
touching that is specifically prohibited.”

1. This did not accurately characterize Victim’s testimony.

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 State v. Carvajal

¶12 During closing argument, the State initially emphasized
that Carvajal touched Victim’s breast skin-to-skin. Defense
counsel responded that Victim testified that the touching was
over her bra—omitting her actual words, which were “[o]ver in
my bra.” In its rebuttal argument, the State reiterated its skin-to-
skin theory of the case but alternatively argued that touching
Victim’s breast through her clothing constituted indecent
liberties in light of all the circumstances.

¶13 The jury convicted Carvajal, and the district court
sentenced him to a term of one-to-fifteen years in prison.
Carvajal appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 Carvajal argues that his attorney’s failure to object to the
inclusion of the instruction concerning indecent liberties, and his
failure to object to the prosecutor’s characterization, during
closing argument, of the type of touching required for
conviction, constituted ineffective assistance of counsel. Carvajal
also argues his attorney performed ineffectively by failing to
adequately investigate his case. “When a claim of ineffective
assistance of counsel is raised for the first time on appeal, there is
no lower court ruling to review and we must decide whether
[the] defendant was deprived of the effective assistance of
counsel as a matter of law.” Layton City v. Carr, 2014 UT App
227, ¶ 6, 336 P.3d 587 (alteration in original) (citation and
internal quotation marks omitted).

¶15 Carvajal also argues that the district court erred “by
instructing the jury on an inapplicable element of the offense and
in failing to correct the prosecutor’s erroneous statement of the
law applicable to the facts of this case.” Carvajal did not raise
these objections at trial, but requests that we review them for
plain error. State v. Halls, 2006 UT App 142, ¶ 10, 134 P.3d 1160.

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 State v. Carvajal

¶16 And finally, Carvajal argues that “cumulative errors
undermined confidence in the verdict.” “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. Kohl, 2000 UT 35, ¶ 25, 999 P.2d 7 (alteration in
original) (citation and internal quotation marks omitted).

ANALYSIS

I. Carvajal’s Counsel Did Not Render Objectively
Ineffective Assistance

¶17 Carvajal argues that his attorney rendered ineffective
assistance in several respects. First, he argues that his counsel
“was ineffective for failing to object to the inclusion of the
‘indecent liberties’ instruction where the only conduct claimed
was a single ‘touching’ of a breast—a statutorily proscribed body
part.” Second, he argues that counsel “fail[ed] to object to the
State’s incorrect and prejudicial argument that the jury could
convict Carvajal of forcible sexual abuse whether or not the
jurors believed he touched [Victim’s] bare breast.” And third, he
argues that counsel was “ineffective for failing to investigate and
question the investigator about statements made by [Victim]
which indicated the claimed touching happened over the
clothing.”

¶18 To prevail on his claim of ineffective assistance of counsel,
Carvajal “must show that counsel’s performance was deficient”
and that “the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the
first element of the test, he “must overcome the strong
presumption that [his] trial counsel rendered adequate
assistance.” See State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162
(alteration in original) (citation and internal quotation marks
omitted). We address each of Carvajal’s arguments in turn.

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 State v. Carvajal

A. Counsel’s Failure to Object to the Indecent Liberties
Instruction

¶19 The jury was given an instruction about forcible sexual
abuse:

Under the law of the State of Utah, a person
commits Forcible Sexual Abuse if the victim is 14
years of age or older and the actor touches the
anus, buttocks, or any part of the genitals of
another, or touches the breasts of a female, or
otherwise takes indecent liberties with the actor or
another, with the intent to cause substantial
emotional or bodily pain to any person or with the
intent to arouse or gratify the sexual desire of any
person, without the consent of the other, regardless
of the sex of any participant.[2]

Another instruction defined the term “indecent liberties” as
“conduct that is as serious as touching the anus, buttocks, or
genitals of a person or the breast of a female.” It further
provided, “Touching that occurs over clothing may constitute
the taking of indecent liberties when, considering all the
surrounding circumstances, the conduct is comparable to the
touching that is specifically prohibited.” 3 The same instruction

2. We note that this instruction is based upon the Model
Utah Jury Instructions and that it is consistent with Utah case
law. See Model Utah Jury Instructions 2d CR1611 (2016),
https://www.utcourts.gov/resources/muji/ [https://perma.cc/3HY
G-GE4C]. It is a correct statement of the law. See Utah Code Ann.
§ 76-5-404 (LexisNexis 2012).

3. Although Carvajal does not contend that the indecent liberties
instruction itself was incorrect, we note that the language of this
(continued…)

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 State v. Carvajal

identified factors that could be considered in determining
whether the conduct amounted to indecent liberties. Defense
counsel did not object to these instructions.

¶20 Carvajal argues that, “[w]here the only claim was that
Carvajal touched [Victim’s] bare breast, inclusion of the
‘indecent liberties’ instruction was error.” He argues that,
“[u]nder the facts of this case, the ‘indecent liberties’ instruction
was an incorrect statement of the law, creating confusion and
misleading the jury on the conduct legally required to convict,
prejudicing Carvajal.” He states that “the only question for the
jury was whether Carvajal touched [Victim’s] bare breast,” and
“the indecent liberties factors were irrelevant because the State
did not introduce evidence of conduct that was of the ‘same
magnitude of gravity’ as the touching of a bare breast.”

¶21 Carvajal was charged with forcible sexual abuse for
touching Victim’s breast, and the State could prove this under
alternate theories: either that Carvajal touched her bare breast, or
by taking indecent liberties, which could include touching her
breast through her clothes if, “considering all the surrounding
circumstances, the conduct is comparable to the touching that is
specifically prohibited.” During Victim’s CJC interview, she said
Carvajal touched her under her bra, with his hand. At trial, she
testified his hand went “over in my bra.” Defense counsel
interpreted Victim’s trial testimony to mean touching her breast

(…continued)
jury instruction appears to be an adaptation of the language
provided in State v. Jacobs, 2006 UT App. 356, ¶ 9, 144 P.3d 226
(“Thus, even when the specified body parts are touched through
clothing, the perpetrator may still be punished under the
indecent liberties prong of the statute when, considering all the
surrounding circumstances, the conduct is comparable to the
touching that is specifically prohibited.”).

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 State v. Carvajal

through her clothes and indeed misquoted it during closing
argument.

¶22 Either way, the jury could find that Carvajal committed
the crime of forcible sexual abuse, whether it was by touching
her bare breast or by touching her breast through clothing if the
surrounding circumstances made that comparable to touching
her bare breast. The circumstances the jury could consider were

factors such as: (1) the duration of the conduct,
(2) the intrusiveness of the conduct against
[Victim’s] person, (3) whether [Victim] requested
that the conduct stop, (4) whether the conduct
stopped upon request, (5) the relationship between
[Victim] and [Carvajal], (6) [Victim’s] age,
(7) whether [Victim] was forced or coerced to
participate, and any other factors [it considered]
relevant.

Through the video recording of the CJC interview, the State
presented evidence that Carvajal touched Victim’s breast under
her bra. Victim’s trial testimony that he touched her “over in
[her] bra” could be construed as consistent with the CJC
interview. But even if it was a statement that the touching
occurred through Victim’s clothing, as defense counsel
apparently heard it, the evidence was still sufficient to form the
basis for a conviction of forcible sexual abuse under the indecent
liberties prong: Victim was 14 years old and Carvajal in his late
40s; Victim’s functional intellectual level is that of a 7-year-old
child; Carvajal induced her to participate by sending her
flirtatious text messages; and Carvajal put his hand on Victim’s
breast despite her efforts to stop him. See State v. Peters, 796 P.2d
708, 711–12 (Utah Ct. App. 1990) (holding that a man had taken
indecent liberties when he enticed a teenage girl to enter an
abandoned house, detained her against her will for about twenty
minutes, and placed his hand on her clothed breast). Given that

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 State v. Carvajal

there was ample evidence to support either theory, objectively
effective counsel could reasonably have approved the
instruction. Accordingly, counsel did not perform deficiently. See
Clark, 2004 UT 25, ¶ 6 (providing that courts “give[] trial counsel
wide latitude in making tactical decisions and will not question
such decisions unless there is no reasonable basis supporting
them” (citation and internal quotation marks omitted)). We
therefore need not address the question of prejudice.

B. Defense Counsel’s Failure to Object to the State’s Closing
Argument

¶23 Carvajal argues his counsel “performed deficiently by
failing to object to the State’s incorrect and prejudicial argument
that the jury could convict [him] of forcible sexual abuse whether
or not the jurors believed he touched [Victim’s] bare breast.” He
alleges it was “prosecutorial misconduct” to “equate[] the
elements of ‘touching’ and ‘indecent liberties,’ and incorrectly
advise[] the jury that the ‘touching’ alleged in this case could
support, under either prong, a conviction for forcible sexual
abuse.”

¶24 As our supreme court has explained, a prosecutor’s
actions and remarks constitute misconduct only if they (1) “call
to the attention of the jurors matters they would not be justified
in considering in determining their verdict,” and (2) “under the
circumstances of the particular case,” are “substantial and
prejudicial.” State v. Tillman, 750 P.2d 546, 555 (Utah 1987). But
relevant here, both prosecutors and defense counsel enjoy
“considerable latitude” during closing argument and “may
discuss fully from their viewpoints the evidence and inferences
and deductions arising therefrom.” Id. at 560.

¶25 During closing argument, the prosecutor emphasized that
Carvajal engaged in skin-to-skin touching, consistent with
Victim’s statement during the CJC interview and one
interpretation of her “over in my bra” testimony. Defense

20150990-CA 10 2018 UT App 12
 State v. Carvajal

counsel responded by addressing the elements of forcible sexual
abuse and argued that touching Victim through her clothing was
“not just as bad, it is slightly less.” On rebuttal, the prosecutor
argued there was “clear touching” but then argued in the
alternative that, “[i]f it comes down to it, and you guys want to
get that far, I’d argue that the indecent liberties instruction
applies.” She added, “[T]he touching of the breast, it’s indecent
liberties. The State would submit whether or not it was under
the shirt over the bra or under bra, ultimately, it was an indecent
liberty or touching, either way, it was a violation of the law and
the elements met.” 4

¶26 As we have noted, the crime with which Carvajal was
charged could be proved under either theory. It was therefore
proper for the prosecutor to argue either theory, provided the
instruction was correct, which it was, and provided there was
evidence to support it, which there was. Given that it was proper
for the prosecutor to argue the alternate theory, defense counsel
did not perform deficiently by not objecting to it. See State v.
Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. Because we have determined
that the prosecutor committed no misconduct, we need not
address whether Carvajal has established prejudice.

C. Defense Counsel’s Failure to Investigate

¶27 Carvajal argues that his counsel “fail[ed] to investigate
and question the investigator about his report which indicated
[Victim] had not alleged that Carvajal touched her bare breast.”
The initial defense strategy had been to deny inappropriate
touching and to suggest that Victim had been manipulated into
fabricating the allegation against Carvajal. Mid-trial, after Victim
testified that Carvajal touched her “over in [her] bra,” counsel

4. We note that the prosecutor also mentioned the indecent
liberties theory in response to an objection during trial.

20150990-CA 11 2018 UT App 12
 State v. Carvajal

moved to continue the trial “so that [he could] further
investigate” what Victim told the investigator. Counsel had not
interviewed the investigator because “he had not anticipated a
defense based on a lack of credible evidence showing [Victim’s]
bare breast was touched.” He noted that the report
recommended charging Carvajal with sexual battery, and if
Victim told the investigator that Carvajal touched her over her
clothes, that would be “material exculpatory evidence.” The
court denied the motion to continue, noting that the report had
been available to counsel since initial discovery and that he had
“had the opportunity to investigate further if he felt it was
necessar[y].”

¶28 On appeal, Carvajal speculates that Victim told the
investigator that Carvajal touched her through her clothing and
that, if counsel had interviewed the investigator, he “would have
learned before trial there was a basis to undermine [Victim’s]
allegations which would have changed how he prepared and
presented Carvajal’s defense.” He contends that this failure
prejudiced him because it rendered the result of the proceedings
unreliable.

¶29 The record does not support Carvajal’s statement that the
report “indicated [Victim] had not alleged that Carvajal touched
her bare breast.” Counsel merely inferred this from the
investigator’s recommendation that Carvajal be charged with
sexual battery, which does not require skin-to-skin touching. He
offers no affirmative evidence in support of this speculation and
did not seek to supplement the record. See Utah R. App. P. 23B
(providing that a party to a criminal appeal may move this court
to remand the case to the district court to supplement the record
with the facts necessary to determine claims of ineffective
assistance of counsel). Under these circumstances we decline
to address the claim. See State v. Burnside, 2016 UT App 224,
¶¶ 30–33, 387 P.3d 570 (rejecting ineffective assistance of counsel

20150990-CA 12 2018 UT App 12
 State v. Carvajal

claim as speculative where appellant provided no evidence to
support it).

II. The District Court Did Not Plainly Err

¶30 Carvajal argues the district court “erred by erroneously
instructing the jury on ‘indecent liberties’ and in failing to
correct the prosecutor’s incorrect statements informing the jurors
Carvajal could be convicted of forcible sexual abuse regardless if
they determined he touched [Victim’s] bare breast.” He contends
that “an error exists because the trial court failed to exclude the
inapplicable elements instruction on ‘indecent liberties’ or to
correct the erroneous statements of the prosecutor on the
applicable law.” He argues that it was plain error and prejudicial
to him. But because we have determined there was no error in
the instruction, or in the prosecutor’s conduct, we likewise
determine that the court committed no error.

III. The Cumulative Error Doctrine Does Not Apply in This Case

¶31 Carvajal’s final argument is that the cumulative errors in
this case warrant reversal because “[t]he prosecutor’s
misconduct, defense counsel’s deficient performance and the
court’s errors went to critical issues and should undermine this
Court’s confidence in the verdict.” But having discerned no
error, there can be no cumulative error. See State v. Killpack, 2008
UT 49, ¶ 56, 191 P.3d 17, abrogated on other grounds as recognized
by State v. Lowther, 2017 UT 34, 398 P.3d 1032.

CONCLUSION

¶32 Carvajal’s attorney did not provide ineffective assistance
of counsel, and the district court did not plainly err in connection
with the jury instruction given in regard to the State’s alternate
theory of the case. We further determine there is no basis in the
record for Carvajal’s contention that he received ineffective

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 State v. Carvajal

assistance of counsel in connection with defense counsel’s
decision not to inquire into the investigating officer’s
recommendation that he be charged with a different crime.
Finally, seeing no error, we conclude that there was no
cumulative error to warrant a reversal. We affirm.

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