State v. Reid , 427 P.3d 1261 ( 2018 )

2018 UT App 146THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
BRIAN SCOTT REID,
Appellant.
Opinion
No. 20160397-CA
Filed July 27, 2018
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 151906548
Deborah L. Bulkeley, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.
HAGEN, Judge:
¶1 Brian Scott Reid appeals his convictions for rape, forcible
sodomy, forcible sexual abuse, and tampering with a witness.
On appeal, he raises multiple issues that he did not preserve at
trial. Because Reid has failed to establish a claim of ineffective
assistance of counsel or plain error, we affirm.
BACKGROUND
¶2 The victim, K.R., lived in her grandmother’s house, along
with other family members including her uncle, Reid. Due to a
learning disability, K.R. had been enrolled in special education
classes until she finished high school. At twenty-three years old,
K.R. did not have a job but helped her grandmother with
State v. Reid
household chores. K.R.’s bedroom was located in the basement,
down the hall from the room Reid shared with his wife.
¶3 At trial, K.R. testified that Reid sexually assaulted her in
her bedroom. She was folding clothes and watching a movie
when Reid walked in and said, “[L]et’s see what my teddy bear
feels like.” K.R. testified that Reid grabbed her, pushed her onto
her bed, and lay down beside her. K.R. asked him what he was
doing and “told him nicely to please get out,” but Reid told her
his back hurt and he just needed to relax. Reid then slipped his
hands underneath her shirt and bra and grabbed her breasts.
K.R. told him to stop, but Reid whispered, “Be quiet or I’m going
to harm you.”
¶4 According to K.R., Reid then grabbed her by her legs and
pulled her to the foot of the bed. He pulled down her pants and
underwear, held her down with his hands on her thighs, and
licked her “down there.” She told him to stop and tried to push
herself up, but he was holding her down with his weight and
told her to be quiet. Reid then coated his penis with lotion and
had inserted it “halfway” into her vagina when K.R. managed to
push him away. K.R. told Reid to get out of her room and he left,
but only after he threatened to harm her if she told anyone about
the assault.
¶5 The next day, K.R. decided she needed to tell her
grandmother what Reid had done. After K.R. told her about the
sexual assault, her grandmother called Reid’s wife upstairs so
that K.R. could tell her what had happened. Reid’s wife
immediately drove K.R. and her grandmother to the police
station where K.R. reported the sexual assault. The police talked
to K.R. for a short time then instructed her to go to the hospital
for a sexual-assault examination.
¶6 At the hospital, K.R. told the examining nurse that Reid
had grabbed her, laid her on the bed, and then lay down beside
her and “started doing uncomfortable things.” She stated that
Reid had pulled down her pants and underwear and grabbed
20160397-CA 2 2018 UT App 146State v. Reid
her breasts “really hard” under her clothes. K.R. said she told
Reid to stop, but he threatened to hurt her if she screamed. K.R.
told the nurse that Reid “shoved his dick inside” her, but she
pushed him off. Before he left the room, however, Reid
threatened to harm her if she told anyone. In response to the
nurse’s specific questions, K.R. stated that there had been
penetration, that lotion had been used as lubrication, and that
Reid’s mouth had been in contact with her genitalia.
¶7 After gathering this information, the nurse conducted a
physical examination. The nurse noted and photographed a blue
and purple circular bruise on K.R’s left outer thigh. The bruise
measured 2.5 centimeters, consistent with the size of a fingertip.
Photographs from the pelvic examination also revealed some
redness at the entrance to K.R.’s vagina. The nurse testified that
her findings during the physical examination were consistent
with the information K.R. disclosed about the assault.
¶8 During the examination, the nurse also collected separate
swabs for testing from the external parts of K.R.’s genitalia,
referred to as the vulvar, and from inside her vagina. Both the
vulvar swabs and the vaginal swabs tested positive for the
presence of saliva as well as male DNA that matched Reid’s
profile. 1
1. In briefing and at oral argument, the State suggested that the
DNA came from semen found on K.R.’s body during the
examination. There is no evidence that any semen, let alone
semen matching Reid’s DNA profile, was detected. The vaginal
swab tested negative for the presence of a protein found in
semen, and the vulvar swab was inconclusive. Given the
inconclusive result, the DNA from the vulvar swab was
processed using a specific extraction method designed to
separate sperm cells from epithelial (skin) cells. The laboratory
technician testified that the DNA matching Reid’s profile was
found in the “epithelial faction” of the vulvar swab. There was
(continued…)
20160397-CA 3 2018 UT App 146State v. Reid
¶9 Two detectives were assigned to the case and spoke
briefly with K.R. immediately after her examination. The
detectives told her not to return home until Reid was out of the
house. With the help of the Legal Aid Society of Salt Lake, K.R.
later petitioned for and received a protective order against Reid
to keep him away from her grandmother’s house.
¶10 Detectives interviewed Reid later that day. Reid initially
told the detectives that he did not know why he was being
interviewed and could not remember what had happened the
day before. Reid denied having any interaction with K.R. on the
date of the alleged sexual assault, but he later recalled speaking
with her in the hallway outside of his bedroom. He maintained
that he did not go into K.R.’s room and did not have any sexual
relations with her. He told the detectives that his wife suspected
him of having an affair and was “setting him up” by having K.R.
make false accusations.
¶11 The following week, detectives formally interviewed K.R.
During this interview, K.R. mentioned the use of lotion and the
fact that she had been watching a movie at the time of the
assault. K.R. also pointed out that she had developed additional
bruises on her legs since the assault, which the detectives then
photographed. At trial, K.R. testified that some of the bruising
shown in the photographs occurred earlier from an unrelated
incident, but that the remaining bruises had not been there
before the sexual assault. She testified that the new bruises were
in the same place where Reid had grabbed her legs to pull her to
the end of the bed.
¶12 During direct examination at trial, Reid admitted that he
had a sexual encounter with K.R. on the day in question, but he
claimed that the encounter was consensual. Reid testified that
(…continued)
no testimony as to whether any sperm cells were successfully
extracted.
20160397-CA 4 2018 UT App 146State v. Reid
K.R. had invited him into her room to watch a movie and that
they had started talking about relationships. While watching a
sex scene in the movie, they became intimate and Reid licked his
finger and rubbed the outside of K.R.’s vagina. Reid then
suggested that they use lubricant, and she told him to get the
lotion. Reid stated that he touched his penis to K.R.’s vagina,
then stopped and said, “I don’t think we should be doing this.”
He then left the room.
¶13 Reid admitted that he initially lied to police. However, he
claimed that he could not think clearly at the time because he
“had taken a bunch of medication” before that interview and
was afraid after being accused of “taking liberties” with K.R.
According to Reid, the first time he met his attorney, he had told
his attorney the same story he told the jury.
¶14 On cross-examination, the State questioned Reid about a
recorded telephone call he had made to his wife from jail.
During the conversation with his wife, Reid said he had told his
attorney that his bank records would prove that he was at a
motel on the day of the alleged sexual assault and could not
have committed the crime. When confronted with this
information, Reid testified that he had been lying to his wife at
that time and that he had never told his attorney that story.
¶15 The jury convicted Reid as charged for one count each of
rape, forcible sodomy, forcible sexual abuse, and witness
tampering. Reid appeals.
ISSUES AND STANDARDS OF REVIEW
¶16 On appeal, Reid raises six grounds for reversal, none of
which were preserved. “When a party fails to raise and argue an
issue in the trial court, it has failed to preserve the issue, and an
appellate court will not typically reach that issue absent a valid
exception to preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416
P.3d 443. Our supreme court “has recognized three distinct
exceptions to preservation: plain error, ineffective assistance of
20160397-CA 5 2018 UT App 146State v. Reid
counsel, and exceptional circumstances.” Id. ¶ 19. “When an
issue is not preserved in the trial court, but a party seeks to raise
it on appeal, the party must establish the applicability of one of
these exceptions to persuade an appellate court to reach that
issue.” Id.
¶17 As to the first three issues, Reid argues the
ineffective-assistance-of-counsel exception to the preservation
rule. “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(quotation simplified).
¶18 As to the second set of issues, which he labels as
“prosecutorial misconduct” claims, Reid asserts both the
ineffective-assistance-of-counsel and plain-error exceptions to
the preservation requirement. To establish plain error, a
defendant must “show the existence of a harmful error that
should have been obvious to the district court.” State v. Ringstad,
2018 UT App 66, ¶ 32 (quotation simplified).
ANALYSIS
I. Ineffective-Assistance-of-Counsel Claims
¶19 Reid argues that his attorney rendered constitutionally
ineffective assistance in three ways: (1) by failing to provide
context to the evidence surrounding the protective order, (2) by
opening the door to the admission of the jail call between Reid
and his wife, and (3) by stipulating to allegedly erroneous jury
instructions. To prevail on an ineffective-assistance-of-counsel
claim, a defendant must show both “that counsel’s performance
was objectively deficient,” and “a reasonable probability exists
that but for the deficient conduct defendant would have
obtained a more favorable outcome at trial.” State v. Clark, 2004
UT 25, ¶ 6, 89 P.3d 162; see Strickland v. Washington, 466 U.S. 668,
20160397-CA 6 2018 UT App 146State v. Reid
687 (1984). A defendant’s inability to establish either element
defeats a claim for ineffective assistance of counsel. See id. at 700;
see also State v. Goode, 2012 UT App 285, ¶ 7 n.2, 288 P.3d 306(“Because both prongs of the Strickland test must be met to
establish ineffective assistance of counsel, we need not always
address both prongs.”).
¶20 In this case, we do not consider the adequacy of counsel’s
performance, because Reid has failed to establish prejudice. To
demonstrate prejudice, “[a] defendant 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, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. Here, even assuming defense counsel performed deficiently,
Reid has not shown “that absent counsel’s errors, he had a
reasonable chance to prevail.” See State v. Taylor, 947 P.2d 681,
685 (Utah 1997).
A. Introduction of the Protective Order
¶21 Reid claims that his attorney performed deficiently in
eliciting testimony that K.R. had obtained a protective order
against Reid following the assault. Reid’s attorney
cross-examined K.R. about the protective order in an effort to
show that, in her petition, she had omitted important details
describing her interaction with Reid. On appeal, Reid claims that
his attorney should have made clear to the jury that Reid
stipulated to the issuance of the protective order without
admitting guilt and that there had been no judicial finding that
the assault occurred.
¶22 Reid cannot establish that his trial counsel’s handling of
the protective order resulted in prejudice, however, because
there is no reasonable probability that the result would have
been different had defense counsel offered additional context for
the issuance of the protective order. Reid’s prejudice argument is
20160397-CA 7 2018 UT App 146State v. Reid
based entirely on his assertion that “this is not a case with strong
evidence” of guilt. We disagree with that assessment.
¶23 The State presented compelling evidence of Reid’s guilt.
In contrast to K.R.’s testimony, which was largely consistent
with her prior statements, Reid repeatedly lied about the assault.
When initially interviewed, Reid told police that he did not
know why he was being interviewed, could not remember what
had happened the day before the interview, and had no contact
with K.R. on the day in question. He later admitted to having a
brief interaction with K.R. in the hallway outside his bedroom.
However, he repeatedly denied having any sexual relations with
K.R. or even entering her bedroom. Additionally, he later told
his wife that he could not have committed the alleged assault,
because he had been at a motel at the time. Not until trial, when
faced with the DNA test results, did he admit to having sexual
contact with K.R., claiming it was consensual.
¶24 In addition to admitting that his earlier statements were
false, Reid’s final version of events was inconsistent with the
physical evidence. He testified that he had only rubbed the
outside of K.R.’s vagina with his finger and had briefly touched
her with his penis. This story was inconsistent with the presence
of his DNA on the vaginal swabs. The presence of Reid’s DNA,
not just on K.R.’s external genitalia but also inside her vagina,
contradicted Reid’s testimony at trial that he had never
penetrated K.R.’s vagina, either with his finger or his penis.
¶25 Instead, the DNA evidence corroborated K.R.’s version of
the sexual assault. K.R. testified that Reid grabbed her legs, held
her down as he licked her vagina, and then penetrated her with
his penis. This testimony was further corroborated by the
bruising on K.R.’s legs, including the circular bruise noted by the
nurse during K.R.’s examination, and redness at the entrance to
K.R.’s vagina.
¶26 Taken together, the State presented strong evidence
supporting K.R.’s version of events and challenging Reid’s
20160397-CA 8 2018 UT App 146State v. Reid
credibility. In light of this evidence, Reid has failed to show that,
absent his attorney’s allegedly erroneous handling of the
protective order, he “had a reasonable chance to prevail.” See
State v. Taylor, 947 P.2d 681, 685 (Utah 1997).
B. Opening the Door to the Admission of the Jail Call
¶27 Reid claims that trial counsel’s performance was deficient
because he improperly elicited “testimony from [Reid] that
opened the door for the State to impeach him by introducing
into evidence his prior inconsistent statement to his wife.” On
direct examination, Reid’s trial counsel asked whether testifying
at trial was the first time that Reid had told anyone “what
actually happened that day.” Reid responded that, the first time
he met his attorney, he had told him “everything” that “actually
happened.”
¶28 On cross-examination, the State sought to impeach this
testimony by admitting a recorded jail phone call from Reid to
his wife in which Reid claimed to have told his attorney that he
could not have assaulted K.R., because he had bank records to
prove that he was at a motel at the time. Reid admitted that he
had lied to his wife during this phone conversation. But he
repeatedly clarified, both during cross-examination and on
redirect, that he never told his attorney about the false alibi.
Instead, he testified that he lied to his wife when he claimed to
have told his attorney that story. He reiterated that he had
always told his attorney that he had a consensual sexual
encounter with K.R.
¶29 Reid argues that the admission of the phone call “was
highly prejudicial because it caused [his] testimony to appear
inconsistent.” Had Reid’s statement to his wife been the only
evidence that made his trial testimony appear inconsistent, this
argument might carry more weight. However, the jury heard
evidence of Reid repeatedly lying to the police, denying not only
the sexual assault but any sexual contact with K.R. whatsoever.
20160397-CA 9 2018 UT App 146State v. Reid
Even without the evidence of the phone call, the jury was well
aware that Reid had changed his story.
¶30 In addition, Reid’s testimony made it abundantly clear
that he never told his attorney the motel story and was lying to
his wife when he said that he had. As Reid acknowledges, “It is
not surprising that [he] would deny to his wife that he had a
sexual encounter with another woman, but be frank about the
encounter when discussing it with his attorney.” We agree. The
admission of the phone call did not undermine Reid’s testimony
that the story he told at trial was the same story he had always
told his attorney.
¶31 Given the limited impact of this evidence and the strength
of the State’s case as described above, see supra ¶¶ 23–26, there is
no reasonable probability that the jury would have reached a
different verdict had defense counsel not opened the door to the
admission of the phone call. Accordingly, Reid has failed to
establish that he was prejudiced by his attorney’s alleged error.
C. Failure to Object to Jury Instructions
¶32 Reid further contends that defense counsel’s “stipulation
to the jury instructions was ineffective [because] they included
circumstances of non-consent that were not supported by the
evidence, confused the elements of forcible sodomy and forcible
sexual abuse, and erroneously instructed on attempt.” We do not
reach the issue of whether the jury instructions accurately stated
the law or whether defense counsel performed deficiently in
failing to object, because Reid has failed to establish prejudice.
See State v. Garcia, 2017 UT 53, ¶ 40 (explaining that “the United
States Supreme Court [has] held that errors in jury instructions—
even instructions going to the elements of a charged crime—
require harmless-error analysis” (citing Neder v. United States,
527 U.S. 1, 15 (1999))).
¶33 First, Reid argues that instruction 37 included statutory
variants for proving lack of consent that were inapplicable to the
20160397-CA 10 2018 UT App 146State v. Reid
facts of this case. Utah Code section 76-5-406 lists twelve
circumstances under which an individual commits a sexual
offense “without the consent of the victim.” In this case, the
court instructed the jury as to the first five statutory
circumstances:
1. K.R. expressed lack of consent through words
or conduct;
2. BRIAN REID overcame K.R. through
application of physical force or violence;
3. BRIAN REID overcame K.R. through
concealment or by the element of surprise;
4. BRIAN REID coerced K.R. to submit by
threatening immediate or future retaliation
against K.R. or any person, and K.R. thought at
the time that BRIAN REID had the ability to
carry out the threat;
...
[5]. K.R. did not consent and BRIAN REID knew
K.R. was unconscious, unaware that the act was
occurring, or was physically unable to resist.
¶34 Reid claims that the jury should not have been instructed
on the third or fifth variant, because those circumstances were
inapplicable to the facts of this case. In response, the State argues
that the evidence potentially supported a finding of guilt under
either variant. The State argues that, under the third variant, the
jury could have reasonably found that Reid overcame K.R.
through surprise by unexpectedly grabbing her and pushing her
onto the bed. Under the fifth variant, the State argues that the
jury could have reasonably found that K.R. was physically
unable to resist given her testimony regarding the size disparity
and her inability to push Reid off of her when he was holding
20160397-CA 11 2018 UT App 146State v. Reid
her down with his weight. But the State concedes there is no
evidence to suggest either concealment or that K.R. was
unconscious or otherwise unaware that the assault was
occurring.
¶35 Even assuming that defense counsel performed
deficiently in failing to object to the inclusion of arguably
inapplicable circumstances, Reid has not demonstrated
prejudice. Our supreme court recently noted the “settled means
of assessing the effect of a superfluous jury instruction.” State v.
Hummel, 2017 UT 19, ¶ 83, 393 P.3d 314. The court explained that
there is “no need to reverse a conviction even if there were
erroneous instructions on one variation of a crime submitted to
the jury where the evidence overwhelmingly supports a
conviction under another variation.” Id. ¶ 83 n.30 (quotation
simplified); see also State v. Ojeda, 2015 UT App 124, ¶ 6 n.1, 350
P.3d 640 (“Inclusion of the inapplicable language from the
statute did not prejudice Defendant, as the jury heard no
evidence consistent with [the superfluous variant] but ample
evidence bearing on the other statutory variants.”).
¶36 Here, the evidence overwhelmingly supported a
conviction under the first, second, or fourth circumstances. The
evidence established that K.R. “expressed lack of consent
through words or conduct” when she repeatedly told Reid to
stop; that Reid “overcame K.R. through application of physical
force or violence” when he grabbed her, pushed her onto the
bed, and held her down while he performed oral sex; and that
Reid “coerced K.R. to submit by threatening” her with harm if
she screamed or told anyone. See Utah Code Ann. § 76-5-406(1),
(2), (4) (LexisNexis 2017). Given the ample evidence supporting
these three variants, there is no reasonable probability that the
jury’s verdict would have been different even if the arguably
superfluous circumstances had been excluded.
¶37 Second, Reid argues that instructions 33 and 34 on
forcible sodomy and forcible sexual abuse, respectively, “did not
clarify that the crimes had different and distinct elements,”
20160397-CA 12 2018 UT App 146State v. Reid
thereby allowing the jury to convict Reid of “both crimes [based]
on the same conduct or for conduct for which there was no
evidence.” At trial, the State presented evidence of three distinct
sexual offenses: rape, forcible sodomy, and forcible sexual abuse.
In closing argument, the prosecutor emphasized that “the
forcible sodomy is when the defendant licked [K.R.’s] vagina”
and “forcible sexual abuse” occurred when Reid “touched K.R.’s
breast.” The prosecutor went on to detail the separate evidence
in support of each count. K.R.’s testimony that Reid held her
down while “he started to lick [her] down there” and the
positive tests for saliva and Reid’s DNA “inside the vagina
itself” supported the forcible sodomy charge. And K.R.’s
testimony that Reid “grabbed her breasts so hard under her shirt
and bra touching skin to skin” supported the forcible sexual
abuse charge. Even if the instructions were construed in a way to
permit a conviction on both counts based on the same conduct,
there is no reasonable probability that the jury erroneously
convicted Reid in that manner given the way the case was
presented.
¶38 Third, Reid argues instruction 39 defined “attempt”
without clarifying the charge to which it pertained and that the
jury “could have thought it applied to the sexual offenses and
convicted [Reid] of those based on attempt.” Given the evidence
in this case, including laboratory tests showing the presence of
saliva and Reid’s DNA both on the exterior and inside of K.R.’s
vagina, there is no reasonable probability that the jury convicted
Reid without concluding that he had completed the charged
sexual offenses.
¶39 Reid has failed to show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” See
Strickland v. Washington, 466 U.S. 668, 694 (1984). Because we
conclude that Reid suffered no prejudice as a result of his
defense counsel’s alleged errors, his claim of ineffective
assistance of counsel fails.
20160397-CA 13 2018 UT App 146State v. Reid
II. “Prosecutorial Misconduct” Claims
¶40 Reid contends that the State committed prosecutorial
misconduct when the prosecutor (1) improperly asked leading
questions, (2) solicited hearsay, and (3) made inappropriate
statements during closing argument. Although Reid
characterizes these issues as “prosecutorial misconduct” claims,
our supreme court recently clarified that prosecutorial
misconduct is not “a standalone basis for independent judicial
review.” State v. Hummel, 2017 UT 19, ¶ 111, 393 P.3d 314. When
a defendant raises a claim of prosecutorial misconduct on
appeal, “the question for our review is not whether to question
the prosecutor’s actions.” Id. ¶ 117. Instead, “[a]ppellate courts
review the decisions of lower courts,” not “the actions of [the
prosecutor]—at least not directly.” Id. ¶ 107. Therefore, when a
defendant has raised an alleged prosecutorial misconduct issue
below, we review the district court’s ruling on that objection or
motion. Id. ¶¶ 106–07. On the other hand, when a defendant fails
to raise the issue before the district court, “the law of
preservation controls” and we review the issues “under
established exceptions to the law of preservation,” namely, plain
error, exceptional circumstances, or ineffective assistance of
counsel, if the appellant argues that one of these exceptions
apply. Id. ¶ 111.
¶41 Here, Reid has argued under both the plain-error and
ineffective-assistance-of-counsel exceptions. Accordingly, “our
disposition turns on whether the trial court plainly erred” by not
intervening sua sponte or whether defense counsel “rendered
ineffective assistance” in failing to object, move for a mistrial, or
seek another appropriate remedy. State v. Bond, 2015 UT 88, ¶ 30,
361 P.3d 104.
A. Leading Questions
¶42 Pointing to three specific examples, Reid contends that by
asking K.R. leading questions, the prosecutor supplanted K.R.’s
testimony with that of the prosecutor. The first set of leading
20160397-CA 14 2018 UT App 146State v. Reid
questions involved the prosecutor’s attempt to elicit the amount
of time K.R. had spent discussing the assault with the Legal Aid
staff members who helped her obtain a protective order. During
this line of questioning, the prosecutor asked multiple leading
questions: “They asked you to give them a brief description of
what happened, correct?” “They didn’t spend an hour with
you?” “They spent what, minutes?” Defense counsel objected,
and the court sustained the objection and reminded the
prosecutor to “make sure you don’t ask leading questions.” The
next leading question occurred when the prosecutor asked K.R.,
“Do you recall if you told [the detectives] each of the events, the
main three events of what [Reid] had done to you? . . . The
licking, the grabbing—” Lastly, the prosecutor began to lead
K.R. when asking, “So just to be perfectly clear, you didn’t get to
see the whole movie on the—did you or did [you] not see the
whole movie on the 27th of May, 2015?” These last two
questions did not elicit any objection by defense counsel or
intervention by the judge.
¶43 Reid argues that the “prosecutor’s persistence in asking
leading questions” constitutes misconduct. He contends that his
defense counsel was ineffective for failing to move for a mistrial
based on this alleged misconduct and that the district court
committed plain error by failing to take additional “corrective
action.”
¶44 While the prosecutor’s improper use of leading questions
certainly merited an objection, the district court properly
sustained each of defense counsel’s objections. Moreover, the
court took additional corrective action sua sponte by
admonishing the prosecutor to avoid leading the witness. But
the prosecutor’s error in formulating a handful of questions can
hardly be said to rise to the level of prosecutorial misconduct, let
alone prosecutorial misconduct so egregious that any reasonably
competent defense counsel would have moved for a mistrial.
Nor were these missteps sufficiently serious to merit further
intervention by the district court. If Reid believed that the
district court’s response was inadequate, “he had a duty to ask
20160397-CA 15 2018 UT App 146State v. Reid
the judge to do more.” State v. Hummel, 2017 UT 19, ¶ 120, 393
P.3d 314. “Where the judge gave him everything he asked for
(sustaining his objection), he is in no position to ask for more on
appeal.” Id.B. Hearsay
¶45 Next, Reid contends that the prosecutor improperly
solicited hearsay from K.R.’s grandmother. The State responds
that the grandmother’s hearsay testimony was unexpected, brief,
and corrected by the prosecutor to eliminate any prejudice from
the improper statement.
¶46 When questioned by the prosecutor about the events on
May 28, 2015, K.R.’s grandmother stated, “I just remember [K.R.]
coming up [the stairs] and I was out in the hallway upstairs and
she came crying and said, Grandma, I got to talk to you. And so
she told me what had happened to her.” Following up on this
testimony, the prosecutor asked, “And what happened to her
with whom?” (Emphasis added). Instead of answering the direct
question by simply naming Reid, she responded, “That [Reid]
had raped—” The prosecutor quickly interrupted and corrected
the witness, asking, “Not the words, but with whom? Something
had happened to [K.R.] with whom? Something happened
between [K.R.] and?” (Emphasis added). To this question, K.R.’s
grandmother simply responded with Reid’s name.
¶47 Because counsel did not object at trial, Reid must establish
that his counsel was ineffective for failing to object or that the
district court committed plain error by failing to intervene sua
sponte. On this record, Reid cannot establish either deficient
performance by counsel or plain error by the court. Defense
counsel “may reasonably have believed it ill-advised to call
undue attention to the unanticipated testimony . . . [and thus]
counsel’s actions in ignoring the testimony may be considered
sound trial strategy.” State v. Harper, 2006 UT App 178, ¶ 25, 136
P.3d 1261; see also State v. Hummel, 2017 UT 19, ¶ 109, 393 P.3d
314 (noting that “the defense may be aware of a prosecutor’s
20160397-CA 16 2018 UT App 146State v. Reid
misstep but choose not to highlight it through an objection”).
Similarly, the district court did not plainly err in declining to
draw undue attention to the statement, particularly where the
prosecutor acted promptly to redirect the witness. Moreover,
K.R. had already testified that she told her grandmother that day
that Reid had raped her. The fact that K.R.’s statement was
already properly before the jury lessened the impact of the
hearsay offered by the grandmother and made the decision not
to intervene eminently reasonable on the part of both defense
counsel and the court.
C. Closing Argument
¶48 Finally, Reid contends that the prosecutor made several
comments amounting to misconduct during closing argument.
First, he argues that the prosecutor implied that K.R. had
diminished mental capacity when the prosecutor referred to her
as a “little girl” and suggested that K.R. was unable to resist
Reid. Second, Reid argues that the prosecutor gave improper
personal opinion by implying that the use of the lotion as
lubricant meant K.R. did not consent. Finally, he argues that the
prosecutor acted improperly when he referred to K.R. as a
victim, vouched for her credibility, and played on the jurors’
sympathies.
¶49 In closing argument, attorneys have “considerable
latitude” concerning the issues they raise and “have the right to
fully discuss from their perspectives the evidence and all
inferences and deductions it supports.” State v. Dibello, 780 P.2d
1221, 1225 (Utah 1989). “And the law recognizes the prerogative
of opposing counsel to swallow their tongue instead of making
an objection that might have the risk of highlighting problematic
evidence or even just annoying the jury.” State v. Hummel, 2017
UT 19, ¶ 110, 393 P.3d 314. When we review ineffective-
assistance-of-counsel claims in this context, “the question is not
whether the prosecutor’s comments were proper, but whether
they were so improper that counsel’s only defensible choice was
to interrupt those comments with an objection.” State v. Ringstad,
20160397-CA 17 2018 UT App 146State v. Reid
2018 UT App 66, ¶ 66 (quotation simplified). In assessing claims
of plain error, we ask whether the prosecutor’s statements were
“so egregiously false or misleading that the judge had an
obligation to intervene by raising an objection sua sponte.”
Hummel, 2017 UT 19, ¶ 119.
¶50 None of the remarks in this case rises to that level. But
even assuming that some of the prosecutor’s comments should
have prompted an objection or intervention by the court, Reid
cannot establish prejudice. Both “ineffective assistance of counsel
and plain error share a common standard of prejudice.”
Ringstad, 2018 UT App 66, ¶ 69. “Prejudice exists when, absent
the error, there is a reasonable likelihood of a more favorable
outcome for the defendant.” Id. ¶ 64. There is no reasonable
likelihood that the jury would have reached a more favorable
verdict in this case absent the challenged comments.
¶51 As previously discussed, the State presented compelling
evidence of guilt. Reid lied to the police when interviewed, first
claiming that he did not remember what happened on the day of
the assault, then later claiming that he had no interaction with
K.R., and finally admitting to casual interaction but denying any
sexual contact. He then gave his wife a false alibi, saying that he
could prove he had been at a motel at the time of the alleged
assault. Moreover, the story he ultimately told the jury at trial
was inconsistent with the physical evidence. He claimed that he
never penetrated K.R.’s vagina, either with his finger or his
penis, and yet his DNA was found not just on the vulvar swabs
but inside the vagina as well.
¶52 In contrast, K.R.’s prior statements—in her initial police
report, to the examining nurse, to the Legal Aid staff who had
assisted her with the protective order, and during her full
interview with the police—were largely consistent with her
testimony, varying only in the degree of detail included. The
physical evidence also corroborated K.R.’s version of events. In
addition to the DNA evidence, K.R. had bruises on her legs
where she claimed Reid had grabbed her and held her down and
20160397-CA 18 2018 UT App 146State v. Reid
she had some redness at the opening of her vagina that was
inconsistent with the external touching that Reid claimed.
¶53 Moreover, the jury instructions mitigated the risk that the
jury would convict based on the prosecutor’s arguments rather
than on the evidence. The court instructed the jury that it could
convict Reid “only on the evidence that [it] saw and heard here
in court” and clarified that “[t]he lawyer’s statements and
arguments are not evidence.” “In the absence of any
circumstances suggesting otherwise, courts presume that the
jury follows . . . instructions.” State v. Wright, 2013 UT App 142,
¶ 42, 304 P.3d 887. Therefore, even if some of the prosecutor’s
comments in closing argument merited an objection or other
corrective action, there is no reasonable probability that the jury
convicted Reid based on those comments rather than on the
strength of the evidence.
CONCLUSION
¶54 We conclude that Reid has failed to establish either
ineffective assistance of counsel or plain error that would justify
reversing his convictions. Accordingly, we affirm.
20160397-CA 19 2018 UT App 146