State v. Vallejo , 2019 UT 38 ( 2019 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 38IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
KEITH ROBERT VALLEJO,
Appellant.
No. 20180041
Filed July 29, 2019
On Direct Appeal
Fourth District, Utah County
The Honorable Judge Thomas Low
No. 151401024
Attorneys:
Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Solic. Gen.,
Salt Lake City, Ryan B. McBride, Christine Scott, Provo, for appellee
Michael D. Zimmerman, Troy L. Booher, Freyja R. Johnson,
Salt Lake City, for appellant
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶ 1 Keith Robert Vallejo appeals his convictions of ten counts of
forcible sexual abuse and one count of object rape. A jury convicted
Vallejo of sexually abusing two of his sisters-in-law while they lived
with him and his family. Vallejo contends that his trial counsel
provided constitutionally defective representation because he failed
to move to sever the charges regarding each victim so that Vallejo
could have two separate trials. Vallejo also claims that his counsel
rendered ineffective assistance by failing to object to certain
STATE v. VALLEJO
Opinion of the Court
testimony. In addition, Vallejo argues that the district court erred by
admitting testimony that Vallejo claims were protected by attorney-
client privilege. And finally, Vallejo seeks relief because on a couple
of occasions during the trial, the court and a witness referred to
Vallejo’s sisters-in-law as “victims.” We affirm the convictions.
BACKGROUND
¶ 2 Keith Vallejo and his wife Kathleen lived in Provo with their
six, and later seven, children. 1 J.K. frequently spent time with
Vallejo, Kathleen, and their family.
¶ 3 Vallejo would often “pinch” or “slap” J.K.’s buttocks. When
Vallejo hugged J.K., he would often “hold [her] and start biting [her]
ear, . . . and would not let go” if she tried to pull away. J.K. often fell
asleep on a couch at the Vallejo home and would sometimes awake
to Vallejo massaging her feet. On some occasions, he massaged
higher up her legs towards her thighs.
¶ 4 J.K. later stayed at the Vallejo home for a week and a half.
While a guest in the home, J.K. slept on a couch in the living room.
One night, J.K. awoke to Vallejo partially on top of her, with his
hands rubbing her breasts over her clothing. J.K. froze. She moved to
see if Vallejo would stop. He stopped for a moment, but eventually
resumed his touching. At one point, he slowly started to pull down
J.K.’s pants to reach his hand underneath them. After J.K. moved
again, he stopped long enough that she could pretend to awaken
and get up.
¶ 5 Over the next week, on five or six different nights, Vallejo
continued to touch J.K. while she was asleep or appeared to be
asleep on the couch. He touched her in different ways on different
nights. At times, Vallejo touched and kissed J.K.’s breasts and
buttocks. Vallejo also rubbed J.K’s vagina. He touched her both over
and underneath her clothing.
¶ 6 J.K. was afraid and pretended to be asleep when Vallejo
touched her. She did not report the touching to anyone at that time.
At the end of the week and a half, J.K. returned home.
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1 We recite the facts in a light most favorable to the jury verdict.
State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116. “We present conflicting
evidence only when necessary to understand issues raised on
appeal.” Id.2
Cite as: 2019 UT 38Opinion of the Court
¶ 7 Vallejo sometimes spoke to his friend Rocky Steele about J.K.
For example, on two or three occasions, Vallejo told Steele that J.K
“was the pick of the litter” of the family. On another instance, Steele
asked Vallejo about a bottle of perfume that he observed in Vallejo’s
truck. Vallejo said that it belonged to J.K. and while smelling it,
commented, “[A]h, it just reminds me of [J.K.].”
¶ 8 Later that year, Kathleen’s youngest sister, H.K., came to live
with the Vallejos while she completed her senior year of high school.
For most of that year, H.K. slept on the couch in the Vallejos’s living
room. Kathleen and H.K. often disagreed. H.K. regularly called her
mother (Mother) and would seek her support in dealing with
Kathleen.
¶ 9 Continuing a practice that began before H.K. moved in,
Vallejo would routinely kiss H.K. on the cheek, give her long hugs,
bite her ear, and slap her on the buttocks. At night, H.K. slept on the
couch, often while Vallejo and Kathleen watched television near her.
Vallejo typically sat next to H.K. on the bigger couch while she laid
down. Kathleen sat on the smaller adjacent couch.
¶ 10 Vallejo would often massage H.K.’s feet while she was
lying on the couch beside him. Sometimes he massaged H.K. while
she was awake and other times she awoke to his massages. Over
time, Vallejo “would progressively reach higher up [H.K.’s] legs and
sometimes grab [her] butt, and start massaging” her buttocks. This
occurred “many times.” Vallejo touched her buttocks under her
clothing more than ten times. One night, Vallejo massaged H.K.’s
back and continued lower until he “reached his finger in between
[H.K.’s] butt crack.” H.K. reacted to the intrusion and Vallejo
stopped.
¶ 11 On another occasion, H.K. awoke to Vallejo touching her
breasts under her clothing. Vallejo had reached “his hand . . . up the
back of [H.K.’s] shirt, and . . . was reaching around and touching
[her] chest.” H.K. pretended to be asleep, because she was “too
afraid to do anything.” H.K. testified that she was too frightened to
say anything when Vallejo touched her in these ways and she
typically pretended she was asleep. Vallejo touched H.K.’s chest
“many” more times.
¶ 12 Another night, H.K. woke up on the couch to Vallejo
massaging her legs and feet. Vallejo’s hand then reached up her leg,
under her pants, grasped her butt, and then “his finger slowly
reache[d] under [her] underwear.” He “slowly put[] his finger in
[her] vagina, and . . . start[ed] stroking it.”
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STATE v. VALLEJO
Opinion of the Court
¶ 13 After Vallejo stopped, H.K. cried. She then messaged a
friend, telling her that she “need[ed] to talk to someone about the
situation [she was in].” Kathleen awoke while H.K. was sending the
message and reprimanded H.K. for using her phone. 2
¶ 14 The next day, H.K. confided to her friend J.J. that Vallejo
had “molested” her. J.J. testified that H.K. told her that her “sister’s
husband would come in when he thought that [H.K.] was asleep,
and would start to touch her when he thought she was asleep.”
¶ 15 A few days later, H.K. began sleeping upstairs in an
unfinished bedroom out of fear that Vallejo would touch her again
while she slept. H.K. stayed with the Vallejo family until she finished
the school year. For the remainder of her stay, Vallejo did not touch
her while she slept but continued to spank her buttocks and give her
long hugs. H.K. moved to her parents’ home at the end of the school
year.
¶ 16 H.K. moved out of her parents’ house when she began
college. And at some point during the school year, she caught
pneumonia. While H.K. was feeling poorly, Mother texted H.K.
saying, “I woke up in the middle of the night and had a strong
impression that you need a blessing. 3 Can you ask [friend] and one
of his roommates today?”
¶ 17 H.K. told Mother that she had cried herself to sleep, that
she did not want to talk about what was wrong, and that it had
something to do with Kathleen and Vallejo. H.K. later testified, “I
just felt like I should’ve told her the truth as to why I was crying, or
why she felt like I needed a blessing, because that night I did need
[a] blessing.”
¶ 18 A few days later, H.K. and J.K. returned home for
Christmas. Mother asked to talk to H.K. “about why [she] cried
[herself] to sleep that night.” H.K. began to cry and refused to talk
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2Kathleen had previously restricted H.K. from using her cell
phone as punishment for coming home after curfew.
3 This is a reference to a practice of the Church of Jesus Christ of
Latter-day Saints. The Encyclopedia of Mormonism describes
“Blessing the Sick” in part as “[t]he gift of healing . . . through
administrations of the . . . priesthood” that includes a “prayer of
supplication and blessing.” Nephi K. Kezerian, Sick, Blessing the, in
ENCYCLOPEDIA OF MORMONISM 1308-09 (Daniel H. Ludlow ed., 1992).
4
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with Mother. Mother asked her whether it was related to Kathleen
and Vallejo. H.K. said that it was.
¶ 19 Because H.K. refused to disclose more, Mother called J.K.
J.K. and H.K. then spoke to each other. J.K. came home and the two
then talked generally about what had occurred to them. J.K. told her
father (Father) “about the molestation” and the four—J.K., H.K.,
Mother, and Father—discussed what happened.
¶ 20 The sisters also disclosed the abuse to their church leader
and sought guidance. The church leader told the sisters that he
would contact the church’s legal department and the church would
“try to take care of it.” While not entirely clear from the record, the
church’s attorneys apparently reported Vallejo’s conduct to the
police. A police detective eventually contacted H.K. and J.K. and
sought a statement from each of them.
¶ 21 A church leader notified Vallejo of the allegations. After
Vallejo learned of the allegations, but before charges were filed,
Vallejo, Kathleen, and Vallejo’s friend Steele met together at Vallejo’s
brother’s farmhouse. 4 They spoke while waiting for Vallejo’s
brother—an attorney—to arrive. Steele was already aware of the
allegations against Vallejo, as Kathleen had visited with him and his
wife the previous day. On their way to and at the farmhouse, Vallejo
discussed “the accusations and the stress of it, and the emotion of it”
with Steele.
¶ 22 Before his brother [Brother] arrived, and in Kathleen’s
presence, Vallejo talked to Steele about things “that happened that
weren’t appropriate.” Vallejo informed Steele that “he would lay on
the couch with them, be on the couch with them[,] . . . be very close
with them physically sometimes.” Vallejo told Steele that on one
occasion J.K. sat down on Vallejo’s foot on the couch and that Vallejo
“started to move his foot in a way to arouse her, to stimulate her.”
Vallejo stated, “that he was sorry about that, and . . . that it was just
dumb.” Steele testified that Vallejo never directly denied that he had
engaged in the conduct that led to the charges, but that he insinuated
that he had not.
_____________________________________________________________
4 Steele was not a licensed attorney, but Vallejo may have
believed that he was. Steele had graduated from law school but had
not passed the bar exam. Steele worked in business development,
but had, at times, either suggested or represented that he was an
attorney.
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STATE v. VALLEJO
Opinion of the Court
¶ 23 The State charged Vallejo with ten counts of forcible sexual
abuse, second degree felonies under Utah Code section 76-5-404
(2014), and one count of object rape, a first degree felony under Utah
Code section 76-5-402.2 (2014). 5 The charges regarding J.K.’s
allegations and H.K.’s allegations were tried together.
¶ 24 Prior to trial, Vallejo argued that his farmhouse
conversation was privileged because he had been seeking legal
advice from Steele. The district court disagreed with that
characterization and concluded that the conversation between Steele
and Vallejo “was a conversation among good friends” and the
attorney-client privilege accordingly did not exist. As a result, the
jury heard Steele testify about his conversation with Vallejo.
¶ 25 During H.K.’s testimony, the judge referred to her as a
“victim” while responding to an objection: “[I]t sounds like it’s just
contextual for how the victim responded, so overruled.” Vallejo’s
trial counsel immediately moved for a mistrial. Vallejo’s counsel
argued that a limiting instruction would not ameliorate the harm,
and indeed, would only “make[] things worse.” Counsel preferred
that the judge not give a curative instruction. The district judge
denied the motion for mistrial and elected to read to the jury an
instruction based on the model jury instruction on the court’s
neutrality in order to avoid drawing the jury’s attention to his use of
the word “victim.” 6
¶ 26 H.K’s friend J.J. testified that H.K. had said her “sister’s
husband would come in when he thought that she was asleep, and
would start to touch her when he thought she was asleep.” On cross-
_____________________________________________________________
5We use the version of the statute in effect at the time of Vallejo’s
conduct.
6 The judge instructed:
As the judge, I am neutral. I want to make sure you
know that. If I have said or done anything that makes
you think that I favor one side or the other, that was
not my intention. Do not interpret anything that I have
done as indicating that I have any particular view of
the evidence or the decision that you should reach. My
only roles in this trial are to see that the law is properly
applied, and that the parties are accorded equal
opportunities to present evidence. You are the sole
judges of what the true facts in this case are.
6
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examination, J.J. admitted that six months prior to trial, when she
was talking to a prosecutor, she could not recall who had sexually
abused H.K.
¶ 27 In his closing statement, Vallejo argued that this was
evidence that J.J. had “made her story better for the trial.” Vallejo did
not object to this portion of J.J.’s testimony at the time, but in his
motion for a new trial, he argued that her testimony was
inadmissible.
¶ 28 Later in the trial, a police officer used the term “victim”
three times while testifying. Vallejo’s counsel eventually objected
and stated, “That’s the third time that [the police officer] used the
word victim in referring to [H.K. and J.K.],” though he subsequently
conceded that two of the references were not about H.K. and J.K.
specifically. The prosecutor instructed the officer to not use the term
victim.
¶ 29 The State called a clinical social worker as an expert
witness. The expert used the term “victim” a total of nine times
while testifying about reactions to sexual assault and misconceptions
surrounding those who report sexual assault. The expert did not use
“victim” to refer to H.K. or J.K. specifically, but to speak generally
about individuals who suffer sexual abuse. After she had used the
term three times, Vallejo’s counsel asked that the expert use different
language. The district court agreed. The expert followed the
instruction with limited success—using the term victim six more
times during the testimony, albeit she often caught herself and said
client instead.
¶ 30 The jury found Vallejo guilty of all charges.
ISSUES AND STANDARDS OF REVIEW
¶ 31 Vallejo presents five arguments on appeal.
¶ 32 Three of Vallejo’s claims focus on his counsel’s
performance. Vallejo alleges that his trial counsel was ineffective
because: (1) counsel did not move to sever the charges based on the
conduct involving J.K. from charges based on the conduct involving
H.K.; (2) counsel did not object to J.J.’s testimony as inadmissible
hearsay; and (3) counsel failed to object to testimony from H.K. and
Mother regarding Mother’s desire that H.K. receive a blessing—
which Vallejo characterizes as a “spiritual manifestation confirming
. . . the truthfulness of H.K.’s allegation.”
¶ 33 Vallejo argues that in each instance his counsel’s assistance
fell below the constitutional floor. When presented with a claim of
ineffective assistance of counsel, “[w]e review a lower court’s purely
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STATE v. VALLEJO
Opinion of the Court
factual findings for clear error, but [we] review the application of the
law to the facts for correctness.” Menzies v. State, 2014 UT 40, ¶ 29,
344 P.3d 581 (alterations in original) (citation omitted).
¶ 34 Vallejo next argues that the communications at the
farmhouse were protected by the attorney-client privilege and that
the district court therefore improperly admitted the testimony. When
the existence of a privilege turns on a question of law, we review for
correctness. See Moler v. CW Mgmt. Corp., 2008 UT 46, ¶ 7, 190 P.3d
1250. When the existence of a privilege turns on questions of fact, we
give deference to the district court’s underlying fact finding and do
not set those findings aside unless they are clearly erroneous.
¶ 35 Finally, Vallejo contends that the in-court references to J.K.
and H.K. as “victim” or “victims” were improper and prejudicial. It
appears that Vallejo believes that his motion for a mistrial should
have been granted on account of the judge’s use of that term. 7 We
review a district court’s denial of a motion for mistrial under an
abuse of discretion standard. State v. Cardall, 1999 UT 51, ¶ 19, 982
P.2d 79. Vallejo also claims ineffective assistance of counsel arising
from counsel’s failure to object sooner or more often to these
references to “victim”—which we review under the same standards
we have discussed above. State v. Hutchings, 2012 UT 50, ¶ 8, 285
P.3d 1183; Menzies, 2014 UT 40, ¶ 29.
ANALYSIS
I. Ineffective Assistance of Counsel
¶ 36 To succeed on an ineffective assistance of counsel claim,
Vallejo must demonstrate that his trial counsel’s performance was
deficient and that he suffered prejudice as a result. Strickland v.
Washington, 466 U.S. 668, 687 (1984).
¶ 37 Vallejo must first “show that counsel’s representation fell
below an objective standard of reasonableness.” Id. at 688. This
inquiry focuses on “whether counsel’s assistance was reasonable
considering all the circumstances.” Id. “A fair assessment of attorney
performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from
_____________________________________________________________
7The other references to “victim” or “victims” occurred after the
motion for mistrial and Vallejo did not renew the motion—which
forms part of his claim for ineffective assistant of counsel.
8
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counsel’s perspective at the time.” Id. at 689. As a result, the analysis
is highly fact-intensive and context-dependent.
¶ 38 Our “scrutiny of counsel’s performance must be highly
deferential.” Id. “[A] court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’” Id. (citation omitted).
¶ 39 A deficient performance on its own is not enough,
however, because the “purpose of the effective assistance guarantee
of the Sixth Amendment is not to improve the quality of legal
representation,” but rather “to ensure that criminal defendants
receive a fair trial.” Id. Therefore, Vallejo must demonstrate prejudice
by “show[ing] that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
¶ 40 Vallejo must make a satisfactory showing of both deficient
performance and prejudice to prevail. “[I]f the defendant makes an
insufficient showing on one [prong],” there is no need for us “to
address both components of the inquiry.” Id. at 697.
A. Trial Counsel’s Performance Was Not Deficient
Because the Decision to Not Move to Sever the Charges
Was, in This Instance, Objectively Reasonable
¶ 41 Vallejo argues that his trial counsel should have moved to
sever the charges arising from the conduct involving each victim. He
contends that his trial counsel’s asserted reason for failing to file the
motion—because he “did not think the court would grant the
motion”—demonstrates that counsel lacked a tactical basis for
declining to file the motion, which Vallejo offers as per se evidence
of unreasonable conduct. Vallejo argues that the motion would have
succeeded because he had a right to separate trials on the counts
involving H.K. and those involving J.K. Vallejo alleges that counsel’s
failure to sever the charges prejudiced him because the prosecution
was able to “rely on testimony concerning [Vallejo’s] purported
conduct with the other sister to obtain convictions regarding each
sister” and that the prosecution would not have been able to use
each sister’s testimony in separate trials because the Utah Rules of
Evidence would have prevented the admission of the other sister’s
testimony.
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STATE v. VALLEJO
Opinion of the Court
¶ 42 Vallejo must make several interrelated showings to succeed
on appeal. First, he must demonstrate that under the circumstances
of the case, counsel’s representation fell below an objective standard
of reasonableness when he failed to file the motion to sever. See
Strickland, 466 U.S. at 688. Vallejo must rebut the presumption that
this constituted sound trial strategy. See id. at 689. Vallejo must also
demonstrate that the motion would likely have been granted had it
been filed. See State v. Bond, 2015 UT 88, ¶ 63, 361 P.3d 104 (“[T]he
failure of counsel to make motions . . . [that] would be futile if raised
does not constitute ineffective assistance.” (alterations in original)
(citation omitted)). And to demonstrate prejudice, Vallejo must
demonstrate that a reasonable probability exists that the outcomes of
the trials would have been different had the motion to sever been
filed and granted. See Strickland, 466 U.S. at 694. We need only
address the first point because Vallejo fails to demonstrate that his
attorney offered deficient performance by neglecting to move to
sever the charges.
¶ 43 Vallejo argues it was unreasonable for his trial counsel to
fail to file a motion to sever the charges. Vallejo points to his trial
counsel’s affidavit in which his counsel asserts that he did not move
to sever the charges because he “did not think the court would grant
the motion.” Based on this affidavit, Vallejo contends that counsel
lacked a “tactical basis” for failing to assert the motion to sever—and
that therefore this constituted ineffective assistance of counsel.
¶ 44 As an initial matter, the ineffective assistance of counsel
inquiry focuses on whether the counsel’s actions in question were
objectively reasonable, not whether the counsel had a subjectively
defensible reason for taking them. See Strickland, 466 U.S. at 688.
“Strickland . . . calls for an inquiry into the objective reasonableness
of counsel’s performance, not counsel’s subjective state of mind.”
Harrington v. Richter, 562 U.S. 86, 110 (2011). Thus, it is not enough to
simply say that Vallejo’s counsel didn’t have a tactical reason for not
moving to sever the charges; rather, the question is whether a
reasonable attorney could have made the same decision.
¶ 45 And again, Vallejo says no—that there would be no sound
tactical basis for an attorney to decide not to move to sever the
claims. Indeed, Vallejo argues that under the relevant statute, Utah
Code sections 77-8a-1(1) and (4), and our case law, he had a right to
separate trials. And he argues that in separate trials he could have
admitted testimony that supported his argument that the sisters
colluded, while excluding unfavorable testimony about Vallejo’s
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conduct with the other sister. 8 Based on that, Vallejo maintains that
no reasonable attorney would try the cases together.
¶ 46 In many cases, Vallejo might be right. There very well may
be circumstances in which there is no reasonable basis for trying two
cases together that could be tried separately. But this is not such a
case. We can envision reasonable trial counsel opting for a single
trial.
¶ 47 Vallejo’s trial strategy focused on casting doubt on H.K.’s
and J.K.’s testimony. During J.K.’s cross-examination, Vallejo
emphasized several points designed to undercut J.K.’s credibility.
Vallejo elicited that J.K. never said that she was “uncomfortable” to
Vallejo while the abuse occurred. Vallejo explored J.K.’s asserted
reasons for not reporting the abuse in an apparent attempt to
undermine them. For example, even though J.K. had asserted that
one of the reasons that she had never disclosed the abuse was
because of fear that Vallejo might hurt her, she acknowledged that
Vallejo had never threatened her. And J.K. testified that she did not
disclose because she feared that no one would believe her, including
her family and ecclesiastical leaders.
¶ 48 J.K. also asserted that she did not disclose because she was
afraid of what would happen to her sister Kathleen. In addition, J.K.
testified that she did not attempt to avoid the continued abuse by
_____________________________________________________________
8 We are not as confident as Vallejo that trial counsel would have
necessarily prevailed on a series of evidentiary motions which the
court would have had wide discretion to decide. Vallejo assumes
that the district court would have repeatedly found in his favor in a
number of rulings: that a motion to sever would have been granted;
that each sister’s testimony would not have fallen under a rule 404(b)
exception such that it could have been introduced in separate trials;
or that, alternatively, the prejudicial value of each sister’s testimony
would have outweighed its probative value in separate trials such
that rule 403 would have prevented its admission. And again, even if
we assume that Vallejo could have convinced a court to rule in his
favor on each of these motions, it is quite another thing to say that a
reasonable attorney would necessarily share that confidence and
advise a client that they would be able to run the table.
We note this without commenting on whether a motion to sever
would have succeeded or on the outcomes of the series of
evidentiary motions that would have allowed Vallejo to admit
favorable testimony and exclude unfavorable testimony.
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STATE v. VALLEJO
Opinion of the Court
going home early or by checking into a motel. And J.K. testified that
she never told Vallejo that she did not want to see him again but
rather later asked to go on a trip with Vallejo and his family. Vallejo
used this testimony to argue to the jury that J.K.’s failure to report
the alleged abuse—or to at least warn her sister H.K.—was illogical
and that the jury should therefore discredit her allegations.
¶ 49 Vallejo also attempted to undermine H.K.’s credibility.
During H.K.’s cross-examination, she testified that on only one
occasion did she ask Vallejo to stop touching her. Counsel contrasted
the instance where H.K. asked Vallejo to stop touching her “butt”
with her decision to “fake[] being asleep” on the other instances
when he touched her at night on the couch. Counsel insinuated that
it was illogical or implausible that H.K. would verbally protest
Vallejo’s conduct on one instance but not on others. Like J.K., H.K.
testified that she did not leave the Vallejo home to evade the abuse.
¶ 50 H.K. also testified that she did not report the abuse to
anyone other than J.J. Indeed, in response to questions, H.K. stated
that she did not tell her parents of the abuse even though she had
frequent conversations with her mother and spent time with her
parents during their visits to Utah while the abuse was ongoing.
Counsel argued that it was odd that despite being close to her
mother, H.K. did not tell her about the abuse and solicited testimony
to support that argument. For example, counsel asked H.K., “And
you never, ever told your mother, who you loved, and who you’re
close to, that you were being sexually abused during this time, did
you?” H.K. responded, “No, I did not.” And during the closing
argument, Vallejo’s counsel asserted H.K. “tells her mother
everything. Everything. That’s the testimony in this case. She
wouldn’t have left this out.”
¶ 51 Counsel elicited testimony about tension between H.K. and
Kathleen. Vallejo emphasized H.K.’s fraught relationship with
Kathleen to imply a motive to lie about the abuse. In his opening
statement, Vallejo’s counsel asserted that “[i]t was well known that
there w[ere] problems between Kathleen and [H.K.].” And in his
closing statement Vallejo’s counsel characterized H.K. as “[t]his
young lady, who was the youngest, who’s been characterized as the
baby, the spoiled one . . . she didn’t like that the rules were being
laid down.” Counsel continued,
They want you to believe . . . that while she’s utterly
capable of saying all sorts of things about Kathleen . . .
somehow she couldn’t take the additional step to
saying, oh, and by the way, Kathleen’s husband’s
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doing bad things to me that I don’t want. . . . She’s able
to be combative with her sister every day, . . . and
somehow she never mentions any of this stuff [to her
mother].
All of this sought to undermine H.K.’s credibility by insinuating that
she had a motive to want to fabricate allegations against Vallejo—to
get back at Kathleen.
¶ 52 Counsel also spun a narrative that H.K. and J.K. colluded to
fabricate the allegations. When trial counsel addressed the message
that H.K. sent to a friend in the middle of the night after the rape,
counsel stated, “[t]his is her testing the waters. Let’s put this into
context. Okay? This happens when she’s in trouble for [breaking
curfew after] the prom.” During Vallejo’s closing argument, trial
counsel posed the question of “how can it be that [J.K. and H.K.] got
these details [about the abuse] exactly the same?” Counsel urged the
jury to “remember what the testimony was about that[:] [i]n
December, . . . [J.K. and H.K.] got together in the bedroom and talked
to one another,” implying that they colluded to corroborate their
allegations.
¶ 53 The challenge for Vallejo’s strategy, however, is that he
lacked evidence to show that J.K. had any motive to fabricate
testimony, other than to support H.K.’s plan. Thus, Vallejo’s
appellate argument is premised on his belief that he had a strong
defense against H.K.’s allegations but that defending against J.K.’s
allegations would be more difficult.
¶ 54 For the purpose of this analysis, we assume Vallejo’s
characterization that he possessed a stronger defense against the
charges related to H.K., and a weaker defense against those
involving J.K. 9 We also assume that if he had moved to sever the
charges, he would have been successful and would have
subsequently obtained an acquittal on the case with the stronger
defense.
_____________________________________________________________
9 In so doing, we do not intend to indicate that we agree with
Vallejo’s assessment of the strength of his defense against the
allegations dealing with H.K. The evidence of motive to fabricate
allegations of sexual abuse—H.K. was upset with Kathleen’s rules
and discipline—perhaps only seems strong in comparison to the
allegation that J.K. would fabricate to support H.K.
13
STATE v. VALLEJO
Opinion of the Court
¶ 55 In this scenario, Vallejo would have been acquitted of five
counts of forcible sexual abuse, each a second degree felony, and
object rape, a first degree felony. And we assume that Vallejo would
have faced a stronger risk of conviction in the case with the weaker
defense. In this assumed universe, if convicted, Vallejo faced prison
sentences for the five counts of forcible sexual abuse committed
involving J.K. We agree with Vallejo that a reasonable attorney could
have chosen a strategy that seeks to minimize prison time by trading
the perceived advantages of having H.K. in J.K.’s case for the
problems that having J.K. in H.K.’s trial might engender.
¶ 56 Counsel could have also considered an all-eggs-in-one-
basket strategy: try the case with the stronger defense and the case
with the weaker defense together. There, counsel hopes that the case
with the “strong” defense (H.K. had a motive to fabricate) will
pollute the other case—by impugning the credibility of the victim
with no strong motive to fabricate—and lead to an acquittal on all
charges. In this hypothetical, Vallejo potentially walks away from the
trial without any prison time and without any criminal conviction at
all.
¶ 57 Vallejo asserts that reasonable trial counsel could only
select the former scenario. That is, he argues that “[r]easonable
counsel would not have allowed charges involving JK to be put
before the jury in a trial on the charges involving HK.” He states that
“[t]his is particularly true where the stakes involving HK were
significantly higher”—as the charges involving H.K. included a first
degree felony charge for object rape, whereas the other charges
involving H.K. and all of the charges involving J.K. were second
degree felonies. 10
¶ 58 We take Vallejo’s point. But Vallejo assumes that only
strategies aimed at minimizing prison time could be reasonable. If
Vallejo’s goal was to avoid prison time altogether, reasonable trial
counsel could have decided to pursue an all or nothing strategy. And
it is logical to conclude that an attorney charged with representing a
man in his forties, with no criminal history, and a position of relative
_____________________________________________________________
10 It bears noting that the district court instructed the jury about
their obligation when considering multiple charges. The instruction
directed the jury that it had a “duty to consider each charge
separately”; that for “each crime charged” it should “consider all of
the evidence relating to that charge”; and that their “verdict on one
charge does not determine [their] verdict on any other charge.”
14
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esteem in his ecclesiastical community, might prefer a strategy that is
designed to avoid any conviction and prison time.
¶ 59 Vallejo anticipates this line of thinking and contends that in
separate trials he could have excluded certain unfavorable evidence
and “still introduced HK’s claims in JK’s case to show JK’s
motivation for falsely accusing him.” At the same time, Vallejo
contends that the prosecution could not have “rel[ied] on testimony
concerning [his] purported conduct with the other sister to obtain
convictions regarding each sister” because the testimony would have
been inadmissible in the trial based on the other sister. Vallejo
describes this as the “best of both worlds:” the exclusion of J.K.’s
testimony that Vallejo abused her in H.K.’s trial but the inclusion of
evidence of the tension between H.K. and Kathleen in J.K.’s trial that
would suggest a motive for J.K. to lie.
¶ 60 To make this argument, Vallejo focuses on the evidence
concerning motive. But motive was not the only issue counsel could
have considered. If the jury did not buy Vallejo’s argument that H.K.
fabricated the allegations to get back at Kathleen, reasonable counsel
could have concluded that Vallejo needed something else to argue.
J.K.’s presence at the trial gave him another witness who he could
argue should not be believed because of the delay in reporting and
because she did not leave a home where she alleged she was
suffering abuse.
¶ 61 Reasonable counsel could, as Vallejo’s counsel did, point to
the fact that J.K. did not warn H.K. about Vallejo’s abuse when she
learned H.K. would move into the Vallejo home. This gave Vallejo
another set of arguments to try and cast doubt on H.K.’s—and
J.K.’s—testimony. As such, even though there were reasons to
believe that J.K.’s testimony would bolster H.K.’s, reasonable trial
counsel could also conclude that J.K.’s testimony could be used to
reinforce arguments about why the jury should discredit H.K.’s
account and, in the process, throw doubts on J.K.’s account. And trial
counsel may have legitimately reasoned that there was value in
having both sisters sit in the courtroom for the jury to observe as
they heard evidence and argument about the sisters’ plan to fabricate
testimony. Although reasonable trial counsel might have weighed all
of this and moved to sever, reasonable trial counsel could also decide
to try the cases together. 11
_____________________________________________________________
11 Other courts have similarly recognized that counsel can
strategically decide to forgo a motion to sever. For example, the New
(continued . . .)
15
STATE v. VALLEJO
Opinion of the Court
¶ 62 This leads us to agree with the district court that on these
facts, trial counsel could have reasonably decided to not sever
charges. This falls within the “wide range of reasonable professional
assistance” that meets the constitutional standard of adequate
representation. See Menzies v. State, 2014 UT 40, ¶ 76, 344 P.3d 581(citation omitted) (internal quotation marks omitted). Because
reasonable trial counsel could elect to try these cases together,
Vallejo has failed to demonstrate that trial counsel’s election to not
file a motion to sever charges constituted ineffective assistance of
counsel.
B. Trial Counsel’s Failure to Object to
J.J.’s Testimony Was Not Unreasonable
¶ 63 Vallejo next claims that his trial counsel was ineffective for
failing to object to testimony that J.J., H.K.’s friend, provided.
According to Vallejo, J.J.’s testimony included impermissible hearsay
that offered “no conceivable beneficial value to the defendant.”
Based upon his dim view of the testimony’s value, Vallejo contends
that his counsel rendered ineffective assistance by not objecting to its
admission.
¶ 64 Specifically, J.J. testified that H.K. told her that “at night
when she was asleep, . . . her sister’s . . . husband would come in
when he thought she was asleep, and would start to touch her when
he thought she was asleep.” J.J. testified that H.K. “said that he put
like his hands down her pants.”
Mexico Court of Appeals considered a claim of ineffective assistance
after an attorney failed to sever charges relating to his client’s alleged
sexual abuse of two minors. State v. Carabajal, 2009 WL 6763560, at
*1-2 (N.M. Ct. App. Feb. 23, 2009). That court noted that a severance
motion would have likely been granted, but that it could not
“conclude that it was irrational to attempt to undermine the more
numerous and serious counts involving C.C. by including the
allegations involving M.D. and her involvement in the alleged
conspiracy” to fabricate allegations against the defendant. Id. at *2–3;
see also In re Gensitskiy, 2018 WL 1730176, at *6–7 (Wash. Ct. App.
Apr. 10, 2018) (rejecting claim that counsel provided ineffective
assistance by failing to seek separate trials where there was a
legitimate trial tactic to try the cases together—allowing the jury to
hear some of the alleged victims recant and express doubt about
their testimony).
16
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¶ 65 The pretrial discussion about J.J. illuminates how both the
State and Vallejo viewed the testimony. In advance of trial, the State
notified Vallejo and the district court that J.J. would testify that “H.K.
told her toward the end of J.J.’s freshman year, in 2014, that someone
in her house was abusing her and she moved upstairs to avoid him.”
At a pretrial hearing, Vallejo’s trial counsel requested a continuance
so that he could speak with J.J. and investigate her testimony. Trial
counsel explained that J.J. was “the only person who’s not a family
member that’s going to provide any sort of corroboration.” Vallejo’s
trial counsel explained to the court: “[W]e want to know about how,
what sort of communication was going on between H.K. and J.J., you
know, why it didn’t come to light for so long. She tips the balance in
this case. She’s very important to us.”
¶ 66 Vallejo’s cross-examination reveals how he tried to
illustrate that J.J.’s testimony changed over time in a manner
beneficial to H.K.’s claims to bolster his broader argument that H.K.
(and by extension J.K.) fabricated their accounts.
Q. . . . [Y]ou were first asked to talk about this in a
telephone conversation you had with [the prosecutor]
. . . last year. Remember that?
A. Yeah.
...
Q. Okay, and do you remember what you told him at
the time?
A. I think I told him what I just said [in the direct
examination], yeah.
...
Q. I’m going to show you something that’s been
provided to us by the prosecutor’s office, and I’m just
going to ask you to read it to yourself, not out loud, but
just read it to yourself.
A. Okay.
...
Q. Okay. So now I want to talk to you about the phone
conversation that you had with [the prosecutor]. . . .
Q. . . . [W]hat you told him was, at that time, what you
told the prosecutor was that [H.K.] said she was
staying at her sister’s house and a man was sexually
abusing her, right?
A. Yes.
17
STATE v. VALLEJO
Opinion of the Court
Q. Okay. And you said you didn’t recall if [H.K.] told
[you] who the man was. Right?
A. Yes.
Q. Okay. So, back in August, you didn’t tell him
anything about it being her brother-in-law, or anything
else, you said it was just some man, and you didn’t
remember who it was. Right?
A. Yes.
Q. And today you’re telling us, oh, it’s the brother-in-
law. Right?
A. Mm-hmm.
Through cross-examination, Vallejo’s trial counsel revealed that J.J.’s
testimony had changed and become more incriminating by trial. In
his closing statement, Vallejo’s counsel used this testimony to assert
that J.J. “made her story better for the trial.”
¶ 67 In a motion for new trial, Vallejo argued that J.J.’s
testimony constituted inadmissible hearsay and that his trial counsel
was ineffective for not objecting to its admission. The district court
found that J.J.’s testimony regarding H.K.’s statements was properly
admissible as a prior consistent statement. 12
¶ 68 The district court concluded that “[t]he fact that HK’s
statement to [J.J.], in April of 2014, was before HK’s meeting with JK
was relevant and helpful to rebut the express or implied charge that
HK collaborated with JK during the December 2014 meeting.” The
court continued, “Therefore, [J.J.]’s testimony regarding HK’s April
disclosure was properly admissible as a prior consistent statement
under Utah Rule of Evidence 801(d)(1)(B).” Vallejo disagrees with
the district court’s conclusion that this was admissible testimony,
and he claims that his trial counsel was ineffective for failing to
object to the testimony.
_____________________________________________________________
12 A statement is admissible as a prior consistent statement if
“[t]he declarant testifies and is subject to cross-examination about a
prior statement, and the statement . . . is consistent with the
declarant’s testimony and is offered to rebut an express or implied
charge that the declarant recently fabricated it or acted from a recent
improper influence or motive in so testifying.” UTAH R. EVID.
801(d)(1). Rule 801(d)(1)(b) only allows the admission of “premotive,
consistent, out-of-court statements.” State v. Bujan, 2008 UT 47, ¶ 11,
190 P.3d 1255.
18
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¶ 69 As explained above, to prevail on a claim of ineffective
assistance of counsel, Vallejo “must show, first, that his counsel
rendered a deficient performance in some demonstrable manner,
which performance fell below an objective standard of reasonable
professional judgment and, second, that counsel’s performance
prejudiced the defendant.” Archuleta v. Galetka, 2011 UT 73, ¶ 38, 267
P.3d 232 (citation omitted) (internal quotation marks omitted). 13
¶ 70 Leaving aside the question of whether the statements
violated the rule against hearsay, Vallejo’s trial counsel had a
reasonable tactical reason for not objecting to the testimony. J.J.’s
testimony opened up the opportunity for Vallejo’s counsel to reveal
further inconsistencies in her story that aligned with his theory that
the sisters had colluded to bring the charges—which is exactly the
approach that Vallejo’s trial counsel adopted during cross-
examination and the closing argument. As described above, Vallejo’s
defense centered on questioning the credibility of Vallejo’s accusers,
and J.J.’s testimony helped him do that. Vallejo has not overcome the
presumption that the challenged action—failure to object to J.J.’s
testimony—was reasonable. See Met v. State, 2016 UT 51, ¶ 113, 388
P.3d 447. He has therefore failed to establish deficient performance.
C. Trial Counsel’s Failure to Object to H.K. and Mother’s
Testimony About Mother’s Alleged Spiritual Impression
Did Not Constitute Ineffective Assistance
¶ 71 Vallejo next claims that testimony Mother and H.K. gave
about Mother’s “spiritual impression” was inadmissible and that his
trial counsel was ineffective for failing to object to it. He argues that
this testimony “enabled the jurors to base their decision on their
religious beliefs,” in violation of rules 403 and 610 of the Utah Rules
of Evidence, rather than on the evidence in the case. He asserts that
“counsel had a duty to object to this inadmissible and prejudicial
evidence and rendered deficient performance in failing to object.”
¶ 72 During direct examination, the prosecutor questioned H.K.
about the circumstances that led her to disclose the abuse to her
_____________________________________________________________
13 “[T]he failure of counsel to make motions,” or objections, that
“would be futile if raised does not constitute ineffective assistance.”
See State v. Bond, 2015 UT 88, ¶ 63, 361 P.3d 104 (citation omitted)
(internal quotation marks omitted). Here, we focus on the
reasonableness of Vallejo’s trial counsel’s decision to not object to
J.J.’s testimony. And we do not address whether an objection to the
testimony would have prevailed had he made one.
19
STATE v. VALLEJO
Opinion of the Court
family. As background, H.K. testified that “I was going to school,
and . . . I was very sick, and my mother had texted me that . . . she
had an overwhelming feeling like I needed a blessing. And she
thought that it was related to the fact that I had pneumonia. And I
told her that I had cried myself to sleep that night, which I did many
nights . . . .”
¶ 73 The prosecutor then asked H.K.,
Q. . . . What happened next that made you decide to
disclose to your family?
A. I just felt like I should’ve told her the truth as to why
I was crying, or why she felt like I needed a blessing,
because that night I did need [a] blessing . . . .
H.K. then read the relevant text messages aloud:
A. [Mother], . . . ‘I woke up in the middle of the night
and had a strong impression that you needed a
blessing. Can you ask [friend] and one of his
roommates today?’
Q. Okay. Your response?
A. . . . I cried myself to sleep last night, Mom.’ She said,
‘[W]hy?’ I didn’t [respond]—she called me, I didn’t
answer. [Mother], ‘I tried to call you. Please call me.’ I
said, ‘I don’t want to talk about it, but it involves
Kathleen and Keith.’ . . .
¶ 74 The prosecutor later questioned Mother about the same text
messages:
Q. You said [H.K.] was out at college at that time?
Okay. Was there something that caused you concern
with [her]? . . .
A. During that semester, I noticed her having maybe
some difficulty focusing on her school work, and . . .
she’d had pneumonia the first part of December, so she
had been sick, and I was concerned about that. But I
just kept feeling like there was something else that was
weighing on her, something else that was not right.
Q. . . . could you read that [text message], please? . . .
A. The first text is from me, and it says, ‘I woke up in
the middle of the night and had a strong impression
that you need a blessing. Can you ask [friend] and one
of his roommates today?’ Because I‘d been telling her
20
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she needed a blessing because of the pneumonia. And
then—
Q. What was her response?
A. She responded and said, ‘I cried myself to sleep last
night, Mom’. And I texted her back and said, ‘[W]hy’?
And she didn’t answer me for a while. . . . [Then] she
texted me back and said, ‘I don’t want to talk about it,
but it involves Kathleen and Keith.’
Mother then testified that a few weeks later when H.K. was home on
a break from school, she said to H.K. that “at some point, you need
to tell me what it was that upset you so badly that has to do with
Keith and Kathleen,” which eventually led to the disclosure of the
abuse.
¶ 75 Vallejo characterizes this testimony as evidence of Mother’s
“spiritual manifestation” and contends that its admission violated
Utah Rules of Evidence 403 and 610. Vallejo argues that “[t]here is a
strong likelihood that Utah County jurors,” where the trial occurred,
“would consider Mother’s feelings about something weighing on
HK and her waking with [a] ‘strong impression’ that HK needed a
‘blessing’ on a night where HK cried herself to sleep over Keith and
Kathleen to be a manifestation from God confirming the veracity of
HK’s allegations.”
¶ 76 Vallejo asserts that the testimony “caused unfair prejudice
by allowing jurors to base their decision on their beliefs about divine
manifestations rather than established factual propositions of the
case,” and therefore violated rule 403. Utah Rule of Evidence 403
provides that a “court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative
evidence.” Vallejo also argues that the testimony violated rule 610,
which prohibits the admission of “[e]vidence of a witness’s religious
beliefs or opinions . . . to attack or support the witness’s credibility.”
UTAH R. EVID. 610. 14
_____________________________________________________________
14 Rule 610 of the Utah Rules of Evidence “is the federal rule,
verbatim,” UTAH R. EVID. 610 advisory committee note, therefore we
look to federal cases interpreting the federal rule for guidance. See
Robinson v. Taylor, 2015 UT 69, ¶ 10, 356 P.3d 1230. And, where a
state court has interpreted a rule of evidence determined to be in
(continued . . .)
21
STATE v. VALLEJO
Opinion of the Court
¶ 77 We do not address whether the religious testimony was
properly admitted, because it was reasonable for competent counsel
to not object for a variety of reasons. Vallejo’s trial counsel could
have reasonably decided not to object because he made frequent
references to Vallejo’s own religion and role as a religious leader.
During the opening statement, Vallejo’s trial counsel commented
that Vallejo “had received his church calling and was his ward’s
bishop.” Vallejo also introduced evidence of his own religious
conduct, testifying that he “went on a mission for a couple years”
and that later he “was a bishop,” which he “loved.” He testified that
his responsibilities as a bishop took “fifteen to twenty hours of [his]
week.” Vallejo thus made significant references throughout the trial
to his own membership and leadership within the Church of Jesus
Christ of Latter-day Saints. 15 Vallejo’s counsel therefore could
lockstep with the respective federal rule, we may consider such state
cases as well.
Federal and state cases illustrate the narrow scope of rule 610. See
Gov’t of the Virgin Islands v. Petersen, 553 F.2d 324, 328 (3d Cir. 1977)
(“[Federal Rule of Evidence] 610[] clearly prohibits such testimony
[of religious affiliation and beliefs] when it is used to enhance the
witness’[s] credibility . . . .”); State v. Marvin, 606 P.2d 406, 409 (Ariz.
1980) (“Appellant complains that testimony concerning his Mormon
beliefs was improperly excluded by the trial judge. We do not
agree. . . . The testimony concerning religious beliefs was intended to
bolster appellant’s credibility . . . . [A] witness [may not] seek to
enhance his testimony in reliance [on religious beliefs].”). Rule 610
does not prohibit references to religion wholesale, however. United
States v. Davis, 779 F.3d 1305, 1308–09 (11th Cir. 2015) (“Evidence of
religious beliefs or opinions may be admitted for another purpose”
than “to attack or support the witness’s credibility.” (internal
quotation marks omitted)); State v. Stone, 728 P.2d 674, 677 (Ariz. Ct.
App. 1986) (“[I]f such information is probative of something other
than veracity, it is not inadmissible simply because it may also
involve a religious subject as well.”); 28 CHARLES ALAN WRIGHT ET.
AL., FEDERAL PRACTICE AND PROCEDURE § 6152 (2d ed. 2018) (“[A] . . .
policy assumption underlying [r]ule 610 is compelling for the very
reason that many people presume a strong connection between
religious belief and moral character; evidence of religious belief or
lack thereof may be highly prejudicial.”).
15Vallejo contends that testimony concerning his work as the
bishop of his local congregation was “presented only to show he was
(continued . . .)
22
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reasonably have thought that an objection to the testimony about a
spiritual prompting could make it more difficult to argue that he
should be permitted to introduce evidence about Vallejo’s own
church service.
¶ 78 Moreover, to prevail, Vallejo needs to show that reasonably
competent trial counsel necessarily would have objected to the
testimony. And that means that reasonably competent counsel
would have believed that the jury would react to the testimony in
the way that Vallejo predicts. Vallejo assumes that there is a “strong
likelihood that Utah County jurors” would have considered
Mother’s intuition to be “a manifestation from God confirming the
veracity of HK’s allegations.” But that is an assumption we are
unwilling to make based on the sole fact that the jury was selected
from Utah County. Certainly, a juror might draw the conclusion
Vallejo fears, and had counsel objected and the judge sustained the
objection, we would be hard-pressed to call that an abuse of the
district court’s discretion. But it is entirely another matter to assume
that a member of the jury would inevitably react in the way Vallejo
describes such that we would conclude that his trial counsel was
deficient for failing to object.
¶ 79 In other words, Vallejo’s assumption about how a “Utah
County” juror must have responded to the testimony does not
convince us that trial counsel’s failure to object was the product of
deficient performance. After all, trial counsel sat through voir dire
and observed the jurors’ responses to evidence as it was presented.
Counsel was therefore in a much better position to gauge how these
particular “Utah County” jurors might respond to this evidence than
we are. We are therefore reticent to conclude that Vallejo’s counsel
had no tactical reason to not object to the testimony and that the
provision of objectively reasonable legal representation required an
objection.
II. Attorney-Client Privilege
¶ 80 Vallejo next argues that the admission of Rocky Steele’s
testimony, in which he attested to statements Vallejo made to him at
the farmhouse, was improper because the statements were protected
juggling work, school, and church duties.” Even if we were to credit
that assertion, it does not require much imagination to see that
Vallejo might have been hoping for some of the same testimony
bolstering that he argues Mother’s testimony enjoyed.
23
STATE v. VALLEJO
Opinion of the Court
by the attorney-client privilege under Utah Rule of Evidence 504(b).
At trial, Vallejo bore the burden of establishing that an attorney-
client relationship existed, the communication of confidential
information, and that the purpose was to obtain legal advice. UTAH
R. EVID. 504(b); 16 S. Utah Wilderness All. v. Automated Geographic
Reference Ctr., 2008 UT 88, ¶ 33, 200 P.3d 643. The district court
concluded that Vallejo did not meet his burden of establishing that
the statements were privileged.
¶ 81 The day prior to the farmhouse meeting, Kathleen visited
with Steele and his wife and shared with them that she had learned
of the allegations. Vallejo and Kathleen discussed the allegations
with Steele the next day while they drove to the farmhouse and
waited there for Vallejo’s Brother—an attorney—to arrive. Steele
described that Vallejo talked about “the accusations and the stress of
it, and the emotion of it.” “Emotions were on the surface, were very
raw,” Steele described. Vallejo also talked with Steele about “things
that had happened that weren’t the accusations, but things that . . .
happened that weren’t appropriate.”
¶ 82 Vallejo contends that three statements that he made to
Steele at the farmhouse should have been excluded. First, Steele
testified that Vallejo said “he would lay on the couch with [H.K. and
J.K.], . . . that he would be very close with them physically
sometimes . . . on the couch at night.” Second, Steel testified that
while Vallejo “insinuat[ed]” that he did not engage in the alleged
conduct, Vallejo never expressly denied the allegations—“he never
said, ‘I did not do it.’” And third, Steele testified that Vallejo told
him about an instance when J.K. sat on top of Vallejo’s foot on the
couch. Steele testified that Vallejo told him that he then “started to
move his foot in a way to arouse her, to stimulate her” and “that he
_____________________________________________________________
16 Under rule 504(b), “confidential communications made for the
purpose of facilitating the rendition of professional legal services to
the client” are privileged. UTAH R. EVID. 504(b) (2014). Rule 504(b)
requires that communications were between “the client and the
client’s representative and [or] the lawyer[] [or] lawyer’s
representative,” or meet other criteria not relevant here. Id. 504(b)
(2014).
We quote the version of the rule in effect at the time that the
communications were made in 2014, which was the same version in
effect at the time that the privilege was asserted in 2017.
24
Cite as: 2019 UT 38Opinion of the Court
was sorry about that, and . . . that it was just dumb. He didn’t know
why he did it.”
¶ 83 The district court made extensive factual findings and
conclusions of law. The district court found:
Defendant picked up Mr. Steele . . . and drove him to
[Vallejo’s brother’s] nearby farmhouse. Kathleen was
present. During the drive and after arriving there,
Defendant and Kathleen spoke to Mr. Steele about the
allegations, about how difficult Christmas had been,
about Defendant’s and Kathleen’s own private
discussions on the matter, about Defendant’s
conversation with the [church leader] where he was
told of these allegations, about the emotions they’ve
had since then, and about the effect the allegations are
having on their family . . .
Later, . . . Defendant’s brother and a criminal defense
attorney [Brother] []arrived. [Brother] wanted to
discuss legal strategies with Defendant, so [Brother]
asked Kathleen and Mr. Steele to leave the room. They
both did, and neither of them heard anything in
Defendant’s private conversation with [Brother]. . . .
In the months ensuing the disclosure of the
allegations, Defendant continued to discuss things with
Mr. Steele. . . . Defendant told Mr. Steele how stressful
things were. At one point . . . Defendant suggested that
maybe [Brother] and Mr. Steele could represent him.
Mr. Steele replied that he was not a practicing attorney
and that Defendant needed to hire a criminal defense
attorney. This was the first time—in the context of
these criminal accusations—that Defendant mentioned
anything about Mr. Steele’s legal background or
suggested anything about Mr. Steele’s possible
provision of legal services . . . The trial court also found
that Vallejo continued to talk to Steele after he had told
Vallejo that he could not provide him with any legal
assistance, again requested that Steele represent him,
and was again told by Steele that he was not a
practicing attorney.
¶ 84 The district court then concluded that Vallejo failed to carry
his burden of establishing the existence of an attorney-client
privilege under rule 504 of the Utah Rules of Evidence. The district
court concluded that “[n]o evidence indicates that the[] statements
25
STATE v. VALLEJO
Opinion of the Court
[made at the farmhouse] were made for the purpose of facilitating
Mr. Steele’s rendition of professional legal services,” as required
under rule 504(b)(1). Rather, “all the evidence indicates that, at least
until [Brother] arrived, it was a conversation among good friends
about a traumatic circumstance in the lives of Defendant and his
wife.” The district court noted that “Mr. Steele offered no legal
advice—ever—and he was never asked for any. He just listened as
Defendant and his wife unburdened their cares, worries, and fears.”
And the district court concluded that “other than testifying that he
always thought Mr. Steele was an attorney, Defendant offers no
evidence that his farmhouse communications were made for the
purpose of facilitating Mr. Steele’s rendition of professional legal
services to him.”
¶ 85 Vallejo largely ignores these factual findings and focuses on
Vallejo’s characterization of the events. At the hearing, Vallejo
testified that the purpose of the farmhouse meeting was “[t]o get
counsel” with regard to H.K.’s and J.K.’s allegations and that he
sought legal counsel from Steele.
¶ 86 But on cross-examination, Vallejo acknowledged that he
knew that Steele was not a criminal defense attorney and stated that
he knew “[f]rom the get go” that he was not going to hire Steele as
an attorney.
¶ 87 On re-direct, Vallejo’s counsel attempted to salvage
Vallejo’s testimony:
Q. [At] the meeting where your brother was present,
did you seek [Steele] out to give you advice about this
case?
A. Initially, no. I did not want to, but my wife had
already gone to him and talked a little bit, and then
yes, I did want him—I did want his help.
Q. Okay. And we’re talking about at the meeting itself,
were you seeking legal advice from him at that time?
A. Yes. Yes.
In addition, Vallejo gave conflicting testimony as to whether he
continued to seek legal counsel from Steele after the farmhouse
meeting. 17
_____________________________________________________________
17 At the same hearing, Steele testified about the farmhouse
meeting. He testified that he understood the purpose of the meeting
(continued . . .)
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¶ 88 In other words, the district court’s legal conclusion rests on
unchallenged factual findings. Specifically, the district court found
that when they met in the farmhouse, Vallejo was not seeking legal
advice from Steele. The district court noted that Vallejo had offered
“no evidence that his farmhouse communications were made for the
purpose of facilitating Mr. Steele’s rendition of professional legal
services.”
¶ 89 Although Vallejo does not couch his argument in terms of a
challenge to the district court’s factual findings, he does take aim at
them, arguing that Vallejo was engaged in “a conversation with a
view toward obtaining legal services.” But Vallejo has not pointed us
to evidence that would cause us to second-guess the district court’s
finding that Vallejo was unburdening his soul to a friend, and that
he was not looking to Steele for legal advice. The most compelling
testimony pointing the other direction is Vallejo’s own assertion that
he sought legal advice from Steele. But, in light of the other evidence
in front of the district court, and Vallejo’s concession on cross-
examination that he was not looking to retain Steele, we are
unwilling to say that the district court’s factual findings were clearly
erroneous or that the court otherwise erred in concluding that
Vallejo failed to establish the existence of a privilege.
III. Prejudicial Effect of the Use of the Word “Victim”
¶ 90 Finally, Vallejo raises several claims based on a handful of
references to H.K. and J.K. as a “victim” or “victims” during trial.
Vallejo argues that “[w]ithout the inappropriate references to HK
and JK as victims, it is reasonably likely the outcome of the trial
would have been different.” And Vallejo views these inappropriate
references as more problematic because the word “victim” was also
used throughout the trial to refer generally to individuals that are
dealing with or disclosing sexual abuse.
was for Vallejo, who he described as “one of my best friends,” to
“just talk to me and tell me, this was what’s going on.” Steele
testified that there was no discussion at that meeting of him
providing legal representation to Vallejo. Specifically, Steele stated
that Vallejo never said anything about a legal strategy in their
conversation, and that the only discussion of legal strategy came
from Vallejo’s Brother—the criminal defense attorney—at the end of
the meeting.
27
STATE v. VALLEJO
Opinion of the Court
¶ 91 On the second day of trial, Vallejo’s trial counsel objected to
a question the State posed to H.K. on direct examination. During the
discussion that ensued over the admissibility of the testimony, the
judge stated, “it sounds like it’s just contextual for how the victim
responded, so overruled.” Vallejo’s trial counsel then asked for the
jury to be excused from the room and moved for a mistrial. Vallejo’s
counsel asked for a mistrial because the “[c]ourt looked at the
witness just now and referred to her . . . as the victim.” The court
denied the motion for a mistrial noting that the court believed the
“jury [didn’t] pick[] up on” the comment. The court gave a curative
instruction based on the model jury instruction regarding the judge’s
neutrality.
¶ 92 Later in the trial, a police officer used the term “victim” or
“victims” three times while testifying. First, the police officer
engaged in the following exchange on direct examination:
Q. What initial information did you obtain about [the
Vallejo] case when it was assigned?
A. The initial information was that two sisters had been
molested by Keith Vallejo.
Q. Okay. How did you proceed with your investigation
at that point?
A. Because it was a third-party report, I was waiting
until I received the initial reporting information from
the actual victims.
¶ 93 The prosecutor then asked questions about the typical
collection of sexual assault evidence. The officer explained that if an
individual reports a sexual assault within a limited timeframe, a
clinic will “collect evidence from the victim of the crime that’s
reporting this.”
¶ 94 Later, the prosecutor asked questions about the typical use
of a sexual assault evidence collection kit and why he did not use
one in his investigation. The officer stated,
A. Because by the time I had this reported to me . . . I
would not expect in that case to get any kind of
evidence from anybody, whether it be the suspect or
the victim in that typical case like that . . . .
¶ 95 At that point, Vallejo’s counsel objected and stated, “That’s
the third time that [the officer has] used the word victim in referring
to [H.K.] and [J.K.].” The district court responded that he did not
“hear [the officer] talking about [H.K.] and [J.K.] that way.” Vallejo’s
counsel conceded that the second and third references were more
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general but that the first reference was to H.K. and J.K. directly. The
prosecutor agreed to instruct the officer to not use the term victim.
¶ 96 Earlier that day, the State’s expert witness—a clinical social
worker—used the term “victim” three times while testifying about
misconceptions about sexual abuse before Vallejo’s counsel asked for
her to use different language. While explaining general
misconceptions about individuals who have been sexually assaulted,
the expert witness stated that there is often a belief that “a victim
will go right in and report what happened to them,” and “that a
victim will fight in a situation where they’re being sexually
assaulted.” The expert also stated that as a “rape crisis coordinator,
one of the things we did [wa]s [go] to the hospital right when a
victim reported.”
¶ 97 At that point, the State requested a sidebar to address the
issue that the expert witness referred to her “patients as victims.”
Vallejo’s counsel asked for the expert to use “clients or patients”
instead and the court and prosecutor agreed. After the sidebar, the
expert used the word “victim” six more times, although she usually
corrected herself.
¶ 98 Vallejo argues that the district court erred in denying the
motion for mistrial. As noted above, “[w]e will not reverse a trial
court’s denial of a motion for mistrial absent an abuse of discretion.”
State v. Cardall, 1999 UT 51, ¶ 19, 982 P.2d 79 (citation omitted).
“[U]nless a review of the record shows . . . that the incident so likely
influenced the jury that the defendant cannot be said to have had a
fair trial, we will not find that the court’s decision was an abuse of
discretion.” Id. (alterations in original) (citation omitted).
¶ 99 Vallejo’s motion for mistrial was based on the court’s
apparently inadvertent use of the word “victim” to refer to H.K.
While improper statements made by the court are serious, the court
gave a curative instruction and crafted it so as to attempt to not
further bring the jury’s attention to his improper comment. 18
_____________________________________________________________
18 We agree with Vallejo that curative instructions are not a “cure-
all.” See State v. Harmon, 956 P.2d 262, 273 (Utah 1998) (plurality
opinion). And we take seriously any remark or conduct that a judge
may make that could give a jury an impression of partiality. But
here, given the inadvertent and solitary incident of the judge’s use of
“victim” to refer to H.K., we conclude that the curative instruction
was sufficient, especially because the judge gave a general curative
(continued . . .)
29
STATE v. VALLEJO
Opinion of the Court
¶ 100 We agree that the judge’s remark was ill-advised and
unfortunate. But given the context of the single statement and the
judge’s efforts to correct it, the district court did not abuse its
discretion by denying the motion for a new trial.
¶ 101 Vallejo next argues that his counsel was ineffective for
failing to continue to object to the officer’s and expert’s use of the
word “victim.” Vallejo states that “[t]o the extent counsel should
have objected sooner or more frequently, counsel was ineffective.
Counsel was aware of the error and had made a previous motion for
mistrial. Thus, no conceivable strategy supports failure to object each
time the reference was made . . . .” In his reply brief, Vallejo phrases
this as “counsel was ineffective for failing to immediately object and
make another motion for mistrial when [the police officer] referred
to HK and JK as ‘victims.’”
¶ 102 We again recognize the gravity of referring to witnesses
as victims during a trial. And we will assume, without deciding, that
counsel’s failure to object resulted in ineffective assistance. This
requires us to focus our inquiry on whether this prejudiced Vallejo.
Under Strickland, Vallejo must “show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland v. Washington,
466 U.S. 668, 694 (1984). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.¶ 103 As described above, the police officer made one reference
to H.K. and J.K. as victims. This happened when he explained that
“[he] wait[ed] until [he] received the initial reporting information
from the actual victims” before investigating the Vallejo case. His
other use of the term referred to victims in general and not to H.K. or
J.K. specifically. The expert similarly spoke in terms of her
instruction to avoid drawing further attention to the improper
comment.
We heed the critiques that Justice Durham thoughtfully leveled at
curative instructions. See id. at 277–79 (Durham, J., concurring). And
we should be careful before concluding that a curative instruction
undid the harm that could potentially flow from a judge seeming to
comment on the merits of a matter. With that caveat well in mind,
here the curative instruction did not reinforce the judge’s mistake,
and the judge’s comment was isolated and fleeting. Taken together,
we are convinced that the comment did not taint the proceeding and
does not demand a mistrial.
30
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generalized experience working with victims of sexual assault. So it
is unlikely that the jury would have understood the expert to be
opining that H.K. and J.K. were victims.
¶ 104 Vallejo argues that the references “implied that the jury
should consider HK and JK to be victims because they had made
allegations against [Vallejo].” And he asserts that the stakes were
high because the “case hinged on credibility.” “The impermissible
references to HK and JK as victims went to the ultimate issue and
unfairly and improperly bolstered their credibility.” We understand
his concerns. But we cannot agree with Vallejo’s conclusion that
“[w]ithout the inappropriate references to HK and JK as victims, it is
reasonably likely the outcome of the trial would have been
different.”
¶ 105 The jury heard extensive and detailed testimony from J.K.
and H.K. about the abuse. The jury heard testimony from J.J. about
H.K.’s disclosure of the abuse the day after Vallejo digitally
penetrated her vagina. An expert witness testified about common
reactions of individuals that experience sexual abuse—including
reasons for delayed disclosure—which provided context for H.K.’s
and J.K.’s behavior. And Vallejo’s own friend, Rocky Steele, testified
to statements Vallejo had made to him about laying on the couch
closely with H.K. and J.K. at night and that Vallejo once “move[d]
his foot in a way to arouse [J.K.], to stimulate her” when she sat on
his foot.
¶ 106 Given this evidence, we conclude that the reference to
H.K. and J.K. as victims—and the other references to victims
generally—did not prejudice Vallejo. 19
CONCLUSION
¶ 107 Vallejo has failed to demonstrate that his trial counsel’s
actions fell below an objective standard of reasonableness with
regard to the failure to move to sever the charges as well as failure to
_____________________________________________________________
19 Vallejo also argues that the references to H.K. and J.K. as
victims prejudiced him by violating his “constitutional right to the
presumption of innocence.” See, e.g., State v. Devey, 2006 UT App 219,
¶¶ 9, 17, 19, 138 P.3d 90. Vallejo contends that the district court’s
statement, along with those from the officer and the expert,
prejudiced his ability to receive a fair trial. For the reasons
articulated above, we are unconvinced that these references
impacted the jury’s verdict.
31
STATE v. VALLEJO
Opinion of the Court
object to the testimony in question provided by J.J., H.K., and
Mother. We conclude that Vallejo did not demonstrate that the
district court erred in finding that he did not seek legal advice from
Steele and using that finding to conclude that no attorney-client
privilege attached to their conversation. We also conclude that the
district court’s denial of Vallejo’s motion for mistrial was not an
abuse of the district court’s discretion and that Vallejo did not suffer
prejudice from the references to H.K. and J.K. as “victims.” We
affirm Vallejo’s convictions.
32