State v. Akok

• Decision Date: 16 April 2015
• Docket Number: No. 20130498–CA.,20130498–CA.
• Citation: 2015 UT App 89,348 P.3d 377
• Parties: STATE of Utah, Plaintiff and Appellee, v. David Deng AKOK, Defendant and Appellant.
• Court: Utah Court of Appeals

348 P.3d 377

2015 UT App 89

STATE of Utah, Plaintiff and Appellee

v.David Deng AKOK, Defendant and Appellant.

No. 20130498–CA.

Court of Appeals of Utah.

April 16, 2015.

Nathalie S. Skibine and Scott A. Wilson, for Appellant.

Sean D. Reyes and Deborah L. Bulkeley, Salt Lake City, for Appellee.

Judge GREGORY K. ORME authored this Opinion, in which Judges MICHELE M. CHRISTIANSEN and KATE A. TOOMEY concurred.

Opinion

ORME, Judge:

¶ 1 Defendant David Deng Akok appeals his conviction for rape, a first degree felony. See Utah Code Ann. § 76–5–402 (LexisNexis 2012). We reverse his conviction and remand for a new trial.

BACKGROUND¹

¶ 2 In 2012, Defendant and his codefendant, John Atem Jok, accompanied a friend to N.C.'s apartment. That evening, after their friend went to work, Defendant, the codefendant, and N.C. left to purchase alcohol. The group returned to N.C.'s apartment, where, joined by N.C.'s roommate, they drank and listened to music.

¶ 3 N.C.'s roommate went to bed around 1:00 a.m. Sometime thereafter, N.C. fell asleep on the couch in the living room. She awoke to find the codefendant touching her breasts under her shirt and bra. N.C. pushed the codefendant's hands away and told him to stop, which he did. The codefendant, however, then moved one of his hands under N.C.'s pants and underwear and pushed his finger into her vagina, causing “[s]harp pain.”

¶ 4 After the codefendant stopped touching N.C., Defendant stated that he had “to have sex for 24 hours with [N.C.], and would have fun with this girl.” Defendant started touching N.C.'s breasts and then he pulled her pants and underwear down. N.C. pulled her clothes up, but Defendant pulled them down again. Defendant then used both hands to hold N.C. down as he put his penis in her vagina. N.C. told Defendant, “Please, no” and “stop,” but he held her down while having sexual intercourse with her until “he was done.” Defendant told N.C. that he wanted her to go to his house and sleep in his bed, but she refused.

¶ 5 N.C. then got up, went to her roommate's room, and told her what had happened. N.C.'s roommate asked her if she wanted to call the police, and N.C. said yes. N.C.'s roommate also told N.C. to tell Defendant and the codefendant to leave. N.C. went to the living room and told the men to leave, but they refused. N.C. told her roommate that the men would not leave, so her roommate went to the living room with N.C. and told the men to leave. Again, the men refused. Around 6:30 a.m., N.C.'s roommate called the police and reported that the men were trespassing.

¶ 6 The police arrived and handcuffed Defendant, who was intoxicated to the point that he could not stand up on his own, and took both him and the codefendant to the police station. N.C. gave a statement to the police and filled out a witness report regarding what had happened to her. After giving her statement, N.C. went to the hospital. She was examined by a sexual assault nurse, who concluded that N.C.'s injuries were consistent with forcible digital penetration and forcible sex but could not conclusively confirm that N.C. had been sexually assaulted. The examination also disclosed that N.C. had semen in her vagina, which tests later confirmed matched Defendant's genetic profile.

¶ 7 Defendant was charged with rape, a first degree felony, and intoxication, a class C misdemeanor.² See Utah Code Ann. §§ 76–5–402, 76–9–701 (LexisNexis 2012). Defendant and the codefendant were tried together. At trial, Defendant testified that he and N.C. had consensual sex in the back seat of his car after he, the codefendant, and N.C. went to buy alcohol. He stated that he then began drinking heavily, fell asleep in N.C.'s apartment, and was still severely intoxicated when the police arrived the next morning.

¶ 8 At the end of the rebuttal portion of the prosecutor's closing argument, the prosecutor told the jury, with our emphasis:

And when you look at the totality of the evidence it is very clear that [Defendant and the codefendant] engaged in sexual intercourse and touched her without her consent. They took advantage of a very vulnerable victim. Don't let them take advantage of it again. Thank you.

After closing arguments, the jury left the courtroom. At that time, Defendant's counsel objected to the “last statement of the prosecutor ... do not make the victim a victim again” and moved for a mistrial on the ground that the statement was improper and prejudicial. The codefendant joined in Defendant's motion. The trial court denied the motion. Defendant's counsel then requested a specific admonition to the jurors “not to consider that statement by the prosecutor,” and the prosecutor stated that he had “[n]o objections to that.”

¶ 9 The trial court called the jurors back into the courtroom. It did not give the jurors the specific admonition that Defendant requested. Rather, the court admonished the jurors that they could only consider the evidence before them and that the attorneys' opening statements and closing arguments were not evidence.

¶ 10 After the court's admonition, the jury left the room again. The trial court then explained to Defendant's counsel: “I did make a partial admonishment.... I did not do exactly what you had asked but I do feel that the admonishment I gave them was appropriate under the circumstances so that was part of my ruling.” Defendant's counsel objected to the trial court's “partial admonishment.” The jury deliberated for a little over four hours and convicted Defendant of both rape and intoxication. Defendant appeals only the rape conviction.

ISSUE AND STANDARD OF REVIEW

¶ 11 On appeal, Defendant argues that the prosecutor committed misconduct during his closing argument and that the trial court should have mitigated the prosecutor's misconduct by issuing Defendant's requested curative admonition. We will reverse on the basis of prosecutorial misconduct if a defendant has shown that

the actions or remarks of counsel call to the attention of the jury a matter it would not be justified in considering in determining its verdict and, if so, under the circumstances of the particular case, whether the error is substantial and prejudicial such that there is a reasonable likelihood that, in its absence, there would have been a more favorable result.

State v. Peters, 796 P.2d 708, 712 (Utah Ct.App.1990) (citation and internal quotation marks omitted). “In determining whether a given statement constitutes prosecutorial misconduct, the statement must be viewed in light of the totality of the evidence presented at trial.”

State v. Cummins, 839 P.2d 848, 852 (Utah Ct.App.1992). In addition, “because the trial court is in the best position to determine the impact of a statement upon the proceedings, its rulings ... will not be overturned absent an abuse of discretion.” Id.

ANALYSIS

¶ 12 In considering the prosecutor's statement, we first analyze whether it “call[ed] to the attention of the jury a matter it would not be justified in considering in determining its verdict.” State v. Peters, 796 P.2d 708, 712 (Utah Ct.App.1990) (citation and internal quotation marks omitted). Second, we analyze whether “the error is substantial and prejudicial such that there is a reasonable likelihood that, in its absence, there would have been a more favorable result.” Id. (citation and internal quotation marks omitted).

I. Improper Statement

¶ 13 “In our judicial system, the prosecution's responsibility is that of a minister of justice and not simply that of an advocate, which includes a duty to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.” State v. Todd, 2007 UT App 349, ¶ 17, 173 P.3d 170 (citation and internal quotation marks omitted). Therefore, “the conduct of the prosecutor at closing argument is [appropriately] circumscribed by the concern for the right of a defendant to a fair and impartial trial.” Id. (alteration in original) (citation and internal quotation marks omitted). Accordingly, “while prosecutors must have the freedom to present closing argument with logical force, they must also act within the constraints imposed upon their office.” Id. ¶ 18.

¶ 14 In this case, during the prosecutor's rebuttal, he told the jury:

And when you look at the totality of the evidence it is very clear that [Defendant and the codefendant] engaged in sexual intercourse and touched her without her consent. They took advantage of a very vulnerable victim. Don't let them take advantage of it again. Thank you.

Defendant argues that this statement was improper because the “prosecutor's remark ... appealed to the jurors' emotions and diverted their attention from their legal duty to determine guilt impartially.” We agree.³

¶ 15 In State v. Wright, 2013 UT App 142, 304 P.3d 887, the prosecutor's final statement to the jury during the rebuttal phase of closing arguments was “You have the power to make that [the abuse] stop.” Id. ¶ 41. We noted that the prosecutor's statement did not rebut any statements made by the defendant; rather, the statement called on the jury “to assume the responsibility of ensuring [the victim's] safety.” Id. Ultimately, we determined that the prosecutor's statement was improper because it “appeal[ed] to the jurors' emotions by contending that the jury ha[d] a duty to protect the alleged victim—to become her partisan—which divert[ed] their attention from their legal duty to impartially apply the law to the facts.” Id.

¶ 16 Here, the prosecutor's statement during the rebuttal portion of closing arguments—“They took advantage of a very vulnerable victim. Don't let them take advantage of it again.”—similarly appealed to the jurors' emotions. The statement suggested to the jurors that they had a duty to protect N.C., or perhaps women generally, from Defendant and the codefendant. And it suggested that an acquittal would allow Defendant and the codefendant to take advantage of N.C. or other women again. In other words, the statement called on the jury to ...