State v. Alarid
| Decision Date | 30 June 2022 |
| Docket Number | 20200728-CA |
| Citation | 514 P.3d 610 |
| Parties | STATE of Utah, Appellee, v. Joseph ALARID, Appellant. |
| Court | Utah Court of Appeals |
Sarah J. Carlquist, Attorney for Appellant
Sean D. Reyes, Salt Lake City, and William M. Hains, Attorneys for Appellee
Opinion
¶1 At the close of a two-day trial, a jury convicted Joseph Alarid of one count of aggravated sexual abuse of a child for touching the breasts of his stepdaughter (Stepdaughter). Alarid now asks us to reverse this conviction for either of two reasons. First, Alarid argues that he received ineffective assistance of counsel when his trial attorneys (collectively, Counsel) approved jury instructions that, in his view, failed to properly instruct the jury regarding the unanimity requirement. Second, Alarid argues that he received ineffective assistance when Counsel did not object to certain statements the prosecutor made during closing argument.
¶2 We disagree with Alarid on both fronts. First, the instructions correctly informed the jury of the unanimity requirement, so Counsel did not perform deficiently by approving them. And second, while we are troubled by the statements made during closing argument, we conclude that Alarid was not prejudiced by them because there is no reasonable probability that the statements affected the outcome of the trial. We accordingly affirm Alarid's conviction.
¶3 Along with her mother (Mother) and brothers, Stepdaughter moved in with Joseph Alarid when she was four years old.
Stepdaughter lived with Alarid until she was seventeen, at which point she moved out to live with her grandmother.
¶4 A few months after she moved out, Stepdaughter told both her grandmother and then Mother that Alarid had sexually abused her during her childhood and adolescence. Stepdaughter soon made the same allegations to police. Based on her allegations, the State charged Alarid with three counts of rape of a child (Counts I–III), one count of aggravated sexual abuse of a child (Count IV), and one count of sodomy on a child (Count V).
¶5 The case later went to trial. There, Stepdaughter testified about various instances in which Alarid allegedly abused her. With respect to Counts I–III and V, Stepdaughter testified that Alarid had raped and sodomized her over the course of several years. According to Stepdaughter, these acts happened "[t]oo many" times to count.
¶6 For reasons explained in more detail below, this appeal largely turns on the allegations underlying Count IV. As noted, Count IV charged Alarid with aggravated sexual abuse of a child. By statute, Alarid would have been guilty of this offense if he touched Stepdaughter's "anus, buttocks, pubic area, ... genitalia," or "breast[s]" "with the intent to arouse or gratify the sexual desire of any individual regardless of the sex of any participant" and he also satisfied any one of ten statutory aggravators. Utah Code Ann. § 76-5-404.1(2), (4) (LexisNexis Supp. 2021).2
¶7 On this front, Stepdaughter testified that Alarid had "stuck his hand down [her] pants and started fingering [her]" when she was five years old while she was sleeping next to him in the bed he shared with Mother. Stepdaughter testified that similar abuse "happened frequently" and that it often happened after Alarid had taken Mother to work. In addition, Stepdaughter testified that after she "started developing," Alarid "would touch [her] boobs and make comments about [her] boobs." Stepdaughter testified that while, she was showering, Alarid would "pick the lock" to the bathroom and "sometimes just stare at [her] or other times he would make comments about [her] entire body," and that he sometimes would "touch [her] butt or [her] vagina or [her] boobs."
¶8 In addition to Stepdaughter's testimony, Mother testified about a particular incident in which she remembered Alarid "grabbing [Stepdaughter's] boob and saying something [like], ‘Whoa, you're getting big,’ or something to that effect," while the three of them were "by the kitchen table." When Counsel pressed Mother on her memory of this event, Mother insisted that she "remember[ed] him touching" Stepdaughter's breasts.
¶9 After the State rested, Counsel presented the defense's case, which largely focused on testimony from two of Alarid's daughters and Alarid's sister-in-law. These witnesses each testified that Alarid was a good person, that they felt comfortable with him being around their children, and that they thought Stepdaughter was an untruthful person. Each also testified that she never saw Alarid physically abuse anyone and that she never suspected him of sexually abusing anyone either.
¶10 During the State's cross-examination of one of Alarid's daughters (Daughter), the prosecutor pressed Daughter about having "talked to [her] dad about this case" while he was incarcerated. In response, Daughter insisted that Alarid had "asked [her] to tell the truth" and that he had not "told [her] what to say."
¶11 In an initial jury instruction, the district court instructed jurors that they were "bound by [their] oath to follow the instructions," that "[a]ll the instructions are important," and that jurors "should consider them as a whole." In another instruction, the court instructed jurors that "[w]hen the lawyers give their closing arguments," jurors should "keep in mind that they are advocating their views of the case." The court further instructed jurors that "[w]hat [the lawyers] say during their closing arguments is not evidence." And the court also instructed jurors that they "must base [their] decision only on the evidence that [they] saw and heard here in court."
¶12 The court also gave Instruction 47, which was entitled "Jury Unanimity on Each Allegation." There, the court instructed jurors that "[t]he State must prove each and every element of each allegation beyond a reasonable doubt," that "[t]he verdict must represent the considered judgment of each juror," and that the "verdict must be unanimous." More particularly, the court instructed jurors that "[e]ach juror must also unanimously agree [on] the specific instance underlying each allegation or count."
¶13 With respect to the charges as a whole, Instruction 46 then informed jurors that "[f]or each offense, the verdict form will have two blanks—one for ‘guilty’ and the other for ‘not guilty.’ " Jurors were instructed that the foreperson would "fill in the appropriate blank to reflect the jury's unanimous decision."
¶14 As for the elements, Instruction 39 defined the elements for Count IV. There, jurors were instructed that to convict on that count, they must "find beyond a reasonable doubt each of the following elements," and among the listed elements was that, "with the intent to ... [a]rouse or gratify the sexual desire of any person," Alarid "[i]ntentionally, knowingly, or recklessly: (a) [t]ouched the anus, buttocks, or genitals of [Stepdaughter], even if accomplished through clothing," or "(b) [t]ouched the breast of [Stepdaughter], even if accomplished through clothing."
¶15 In Instruction 46, jurors were also instructed: "If—and only if—you determine beyond a reasonable doubt that [Alarid] committed Aggravated Sexual Abuse of a Child (Count 4), you must complete the Special Verdict Form." And jurors were further instructed: (Emphasis in original.)
¶16 The jury was then given a separate document entitled "Special Verdict Count 4." That form stated:
¶17 During closing argument, the prosecutor summarized the evidence that supported the State's case. While doing so, the prosecutor walked through each of the charges and then summarized the factual basis for each.
¶18 With respect to Count IV, the prosecutor explained that the jury had heard "that [Alarid] touched [Stepdaughter] all over her body," including that he'd "forced his fingers into her little 5-year old vagina," that he'd "touched her butt, ... touched her breasts in the shower," and that Mother "saw him touch her breasts through ... clothing." Turning to the special verdict form, the prosecutor explained to the jury that "what the special verdict form lays out for you is you have to agree unanimously on one or more of these points, and it's going to say check all that apply." The prosecutor further explained that And the prosecutor then remarked that the jury had "heard multiple different allegations" and that jurors were "going to have to pick one or multiple but that's going to be on [the] verdict form."
¶19 Responding to the defense's evidence, the prosecutor briefly addressed the testimony from Alarid's witnesses. Of note, the prosecutor referred to Daughter as "the co-conspirator that has been with [Alarid] lockstep through this whole thing," and the prosecutor claimed that Alarid had "talked to [Daughter] and told her what he wants her to say." Although there had been no trial testimony supporting the assertion that Alarid had "told [Daughter] what he wants her to say," Counsel did not object to this statement or otherwise respond to it during the...
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