State v. Aguilar

Decision Date04 August 2022
Docket Number20190980-CA
PartiesState of Utah, Appellee, v. Jesus Aguilar Jr., Appellant.
CourtUtah Court of Appeals

Third District Court, Salt Lake Department The Honorable Amber M Mettler No. 181900112

Herschel Bullen, Attorney for Appellant

Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee

Judge Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.

OPINION

JILL M. POHLMAN, JUDGE

¶1 Jesus Aguilar Jr. was charged with three counts of aggravated sexual abuse of a child. A jury found Aguilar guilty on two counts and acquitted him on the remaining count. He appeals raising several claims of district court error and ineffective assistance of counsel and asking us to remand his case pursuant to rule 23B of the Utah Rules of Appellate Procedure. We affirm Aguilar's convictions and deny his rule 23B motion.

BACKGROUND[1]

¶2 Victoria,[2] the nine-year-old daughter of Aguilar's girlfriend, reported to a school counselor (Counselor) that Aguilar sexually abused her on three different occasions in the previous three years. First Victoria alleged that Aguilar made her touch his penis under his boxers. Second, Victoria reported that Aguilar touched her buttocks under her clothing. And third, Victoria claimed that Aguilar made her touch his penis over his clothing.

¶3 Counselor reported the allegations to the Division of Child and Family Services, and shortly thereafter a detective (Detective) interviewed Victoria at the Children's Justice Center (CJC). Detective then interviewed Aguilar, who had waived his Miranda rights, and two weeks later, Detective interviewed Victoria again in response to a concern raised by Victoria's mother (Mother) that Victoria's account may have changed. After interviewing Victoria a second time, Detective found that her account did not substantially change.

¶4 Following those interviews, Aguilar was arrested and charged with three counts of aggravated sexual abuse of a child. After a preliminary hearing-during which Victoria's CJC interviews were introduced into evidence-Aguilar was bound over to stand trial on all three charges.

¶5 Before trial, the State filed a motion in limine seeking to preclude the defense from questioning Counselor about the termination of his employment at the school based on an allegation that he had inappropriately touched another person- which termination was subsequently ruled unlawful. The State argued that the allegation against Counselor by another person was not relevant and, in any event, should be excluded under rule 403 of the Utah Rules of Evidence. After hearing argument, the district court agreed with the State and granted the motion.

¶6 The case proceeded to trial, and five witnesses testified during the State's case-in-chief: Victoria, Mother, Victoria's older brother, Counselor, and Detective. Aguilar's trial counsel cross-examined Counselor about, among other things, his lack of training in interviewing children, and counsel explored the potential that Victoria's allegations were the result of improper interview techniques.

¶7 During its deliberations, the jury sent a note to the judge, asking the court to clarify which of the three alleged incidents of sexual abuse corresponded to each of the three charged counts. Over defense counsel's objection, the court answered the question in a written instruction that quoted from the Information's description of each count and directed the jury to instructions that explained the State's burden to prove each count beyond a reasonable doubt. The jury subsequently convicted Aguilar on two counts of aggravated sexual abuse of a child (Counts 1 and 3) and acquitted him on a third (Count 2).

¶8 Prior to sentencing and after being appointed new counsel, Aguilar moved for a new trial, asserting that his trial counsel was constitutionally ineffective. After briefing and oral argument, the district court denied the motion, concluding that "trial counsel's performance was not deficient" and that, even if it had been, "[Aguilar] was not prejudiced."

¶9 Aguilar now appeals and asks us to consider claims of district court and attorney error, as well as a motion for remand under rule 23B of the Utah Rules of Appellate Procedure.

ANALYSIS
I. Motion for a New Trial

¶10 Aguilar first contends that the district court erred in denying his motion for a new trial. "Ordinarily, we review a court's ruling on a motion for a new trial for an abuse of discretion." State v. Torres-Orellana, 2021 UT App 74, ¶ 26, 493 P.3d 711, cert. granted, 502 P.3d 268 (Utah 2021). "But when a defendant moves for a new trial on ineffective assistance of counsel grounds," as Aguilar did here, "we apply the standard of review set forth in Strickland v. Washington, 466 U.S. 668 (1984)." Torres-Orellana, 2021 UT App 74, ¶ 26. Specifically, we review the district court's determinations on "both the performance and prejudice components of [Strickland's] ineffectiveness inquiry"[3] for correctness as "mixed questions of law and fact." Strickland, 466 U.S. at 698; see also State v. J.A.L., 2011 UT 27, ¶ 20, 262 P.3d 1 ("An ineffective assistance of counsel claim is a mixed question of law and fact. We review the trial court's application of the law to the facts under a correctness standard." (cleaned up)).

¶11 In seeking a new trial before the district court, Aguilar asserted that his trial counsel was constitutionally ineffective in several ways. Aguilar largely repeats those arguments on appeal, contending that he should have been granted a new trial because trial counsel failed to (1) move for a bill of particulars, (2) object to leading questions asked of Victoria, (3) object to the admission of certain statements in Aguilar's recorded interview with police, and (4) make an effective closing argument. Aguilar also argued in support of a new trial that the prosecutor committed misconduct in his closing argument by injecting his opinions relating to Victoria's veracity. Aguilar repeats a similar assertion on appeal, although he reframes it through an ineffective assistance of counsel lens.

¶12 Aguilar has not shown error by the district court. The district court considered each of these contentions after hearing oral argument on a fully briefed motion. In a well-reasoned, written ruling, the court addressed each argument, concluding that Aguilar's counsel was not deficient and, alternatively, that Aguilar was not prejudiced by counsel's performance. On appeal, Aguilar has not addressed the bases for the court's decision. And although we review the district court's decision for correctness, Aguilar "necessarily must challenge the district court's . . . conclusions of law, and he cannot make the same arguments anew while ignoring the proceedings below that adjudicated the same issues." See State v. Newton, 2018 UT App 194, ¶ 20, 437 P.3d 429, aff'd, 2020 UT 24, 466 P.3d 135. Because Aguilar has not addressed or even acknowledged the district court's decision on these issues, he has not met his burden of persuasion on appeal. See id.; Bad Ass Coffee Co. of Hawaii Inc. v. Royal Aloha Int'l LLC, 2020 UT App 122, ¶ 55, 473 P.3d 624 ("Appeals are not do-overs. They are opportunities to correct error. . . . And [appellants] cannot persuade us that the district court erred without addressing the district court's decision on its own terms." (cleaned up)).

II. Motion in Limine

¶13 Aguilar next asserts that the district court erred in granting the State's motion in limine.[4] We "afford district courts a great deal of discretion in determining whether to admit or exclude evidence and will not overturn an evidentiary ruling absent an abuse of discretion." State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981 (cleaned up). We will discern an abuse of discretion where the court applies the wrong legal standard in assessing the admissibility of evidence or where the court's "decision to admit or exclude evidence is beyond the limits of reasonability." Id. (cleaned up). Further, we will not reverse an erroneous decision to exclude evidence unless the error is harmful. See State v. Boyd, 2001 UT 30, ¶ 40, 25 P.3d 985 ("Even should we find such error [in the exclusion of evidence], we will only reverse if . . . absent the error there is a reasonable likelihood of an outcome more favorable to the defendant." (cleaned up)).

¶14 Before trial, the State filed a motion in limine seeking to preclude questioning regarding the temporary termination of Counselor's employment after another person alleged that Counselor had "inappropriately touched them." Counselor's employment was terminated, but after an investigation and screening by the district attorney's office, Counselor was not charged and his employment was reinstated after a finding that he had been unlawfully discharged. The State challenged the relevance of the circumstances surrounding Counselor's termination and alternatively argued that the evidence should be excluded under rule 403 of the Utah Rules of Evidence. After hearing argument on the motion, the district court found that the evidence was not relevant under rule 401 of the Utah Rules of Evidence, rejecting Aguilar's argument that the evidence was probative of truthfulness, bias, or motive. The court also explained that "even assuming there is some sort of probative value of the evidence," "it should be excluded under [rule] 403" because it could become "a mini-trial," "confuse the issues," "result in delay," and "wast[e] time."

¶15 Aguilar contends that the district court erred in granting the State's motion in limine. He argues that (1) Counselor's interview with Victoria "had the potential of tainting the story that [she] was telling," and thus...

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