State v. Florreich
| Docket Number | 20200255-CA |
| Decision Date | 19 January 2024 |
| Citation | 2024 UT App 9 |
| Parties | State of Utah, Appellee, v. Alavina Fungaihea Florreich, Appellant. |
| Court | Utah Court of Appeals |
1
2024 UT App 9
State of Utah, Appellee,
v.
Alavina Fungaihea Florreich, Appellant.
No. 20200255-CA
Court of Appeals of Utah
January 19, 2024
Third District Court, Salt Lake Department The Honorable Vernice S. Trease No. 181903863
Robert Denny, Attorney for Appellant
Sean D. Reyes, William M. Hains, and Emily Sopp, Attorneys for Appellee
Judge Ryan D. Tenney authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.
OPINION
TENNEY, JUDGE
¶1 At the close of a four-day trial, a jury convicted Alavina Florreich of five counts of aggravated sexual abuse of a child and two counts of forcible sexual abuse. On appeal, Florreich raises twelve claims of ineffective assistance of counsel, and she also moves for a remand under rule 23B of the Utah Rules of Appellate Procedure to develop a record to support two additional ineffective assistance claims. For the reasons set forth below, we deny the motion for a remand and affirm Florreich's convictions.
BACKGROUND[1]
Sexual Abuse and Investigation
¶2 From 1998 to 2009, Alavina Florreich was the nanny for Alex1F[2] and his siblings. Florreich is a Tongan immigrant, and Alex and his siblings were the homeschooled children of a Jewish rabbi.
¶3 When Alex was eight years old, Florreich was watching a movie with Alex and his younger siblings one day when Alex began giving her a shoulder massage. While doing so, Alex slipped his hand beneath Florreich's shirt. Florreich then took Alex's hand and guided it to her breast. At the time, Florreich was 50 years old.
¶4 Over the ensuing months and years, Florreich and Alex had a sexual relationship of increasing intimacy. Sometime after the initial incident, Florreich asked Alex if he wanted to see what was under her shirt. When Alex said that he did, Florreich lifted up her shirt. Alex occasionally asked her to do this again, and she often (though not always) obliged. On one occasion, Alex became upset when Florreich accidentally disconnected a video game that he was playing with his brothers. Florreich told Alex to meet her in the bathroom in a few minutes and that she "would make it
right." When Alex arrived, Florreich was standing in her underwear. "Enjoy it," she said.
¶5 Florreich soon began asking Alex to touch her breasts. Most of these encounters took place in a downstairs bathroom. On one occasion, this occurred in the upstairs bedroom of Alex's baby sister. When the two heard the door opening and realized that it was Alex's mother, Florreich called out that she was changing clothes, and without realizing what had been occurring inside the room, Alex's mother shut the door.
¶6 Florreich eventually began urging Alex to expose himself to her. When Alex was 10 or 11, Florreich touched Alex's penis for the first time. Alex later recalled that "her face lit up," that she told him that he was "so healthy," and that she made comments about the size of his penis. Sometime afterward, Florreich stroked Alex's penis to ejaculation, and this same thing occurred on many other occasions moving forward. When Alex was 13, he left the state for boarding school. Florreich remained employed with his family. When Alex would return home for breaks, the two would again engage in sexual contact, including one instance in which Florreich caused Alex to ejaculate by stroking his penis with her feet.
¶7 Their last sexual encounter occurred in 2009, which was shortly after Alex turned 18. According to Alex's subsequent account of this encounter, Florreich offered to perform oral sex on him and then did so, and this was the first time this particular act had occurred.
¶8 Alex later estimated that over the 10-year period that began when he was 8 and lasted until he was 18, he and Florreich had somewhere between 100 and 200 sexual encounters. But Alex had not yet told anyone about these encounters. In 2016, however, Alex saw an episode of a popular TV drama that depicted a nanny's sexual abuse of a child. Alex later explained that the
episode's framing helped him realize that children cannot consent to sexual activity with adults, regardless of how willing the child might have been to engage in the behavior. Alex began seeing a therapist and soon told his therapist what had happened with Florreich. After that, Alex told his wife, his parents, and, finally, the police.
¶9 After Alex reported the abuse to police, the detective who was managing his case (Detective) set up a recorded pretext call between Alex and Florreich. The first portion of the call was mostly small talk; during this portion, Florreich repeatedly had trouble hearing Alex, though the audio issues resolved when Alex moved closer to his phone and Florreich connected her phone to a speaker. As the call progressed, Alex then lied to Florreich about the real purpose for his call. Alex told her that he was having sexual troubles with his wife and that he was hoping Florreich could counsel him through those troubles by discussing their own past encounters.
¶10 During the ensuing discussion, Florreich repeatedly agreed that there had been sexual contact between them. For example, Florreich said that she had been impressed with the size of Alex's penis, and she confirmed that she had massaged his penis to the point of ejaculation with her feet on one occasion. Florreich also recalled the first time that Alex had ejaculated into her hand, recalling that she had told him that his future wife would be "very lucky" because "some people don't get that, you know?" Florreich then reminded Alex of her own comment that he was "very healthy," and she asked him if he was "still the same." Florreich also said that she had "sweet memories" about massaging Alex's penis, and she told him that "with those memories, I am able to be with [my husband] to this day." At one point in the conversation, Alex vaguely referenced "some of our, you know, experiences when I was a kid" that involved Florreich "preparing me for marriage," at which point Florreich interjected, "with your curiosity, right?" Florreich agreed that what they had
done was "kind of like preparing you for your marriage life," and she asked Alex whether he thought about her while he was touching his wife. During this call, the only sexual encounter that Alex mentioned that Florreich denied was his memory that his mother had once almost walked in on them while they were in his baby sister's room.
¶11 A day or two later (the record is slightly unclear on which), detectives knocked on Florreich's door and asked her to come to the police station for an interview. After reading Florreich her Miranda rights, detectives asked her about the phone conversation she'd had with Alex. Florreich then backtracked on several of the admissions she had made in that call, telling detectives that she "didn't mean" some of what she said. But even so, Florreich still admitted to at least some sexual contact, including that she had touched Alex's penis starting around the age of 12 or 13. Florreich said that she hadn't wanted to do it but that Alex had "made" her. When a detective asked about the alleged oral sex encounter that occurred after Alex turned 18, Florreich suggested that Alex had "made" her do it and that it was "rape." Throughout this interview, Detective was often combative with Florreich, he frequently accused Florreich of lying, and he insisted that Alex had been honest when making his accusations.
Charges and Trial
¶12 The State charged Florreich with five counts of aggravated sexual abuse of a child and two counts of forcible sexual abuse. A four-day jury trial was held. In his opening statement, defense counsel (Counsel)2F[3] said, "Both sides are going to try to make sense of the other side's story, and we're going to try to present to you
the facts in a light that shows you what our point of view in the case is. And nobody is going to lie to you on this case."
¶13 The State called three witnesses in its case: Alex, Alex's mother, and Detective. Alex testified at length about the details of his sexual relationship with Florreich that were recounted above. Alex also testified to feeling intense, religiously inflected guilt about what had occurred. Alex said that he became "secretive and sneaky" during those years, simultaneously hoping the sexual contact would continue while also wishing it would stop. He admitted that, after the pattern of sexual contact was first established, he often initiated the encounters and that Florreich had refused him on "numerous occasions." Alex's mother testified that Florreich spoke English "perfectly" and had not been a pushover for the kids. She also testified that the family had a great relationship with Florreich and that she was shocked to learn about the alleged abuse. She said she never observed any inappropriate sexual activity between Florreich and any of her children. In his direct examination, Detective testified about his involvement in the case, including the circumstances surrounding the pretext call and the interrogation.
¶14 The State also played audio of both the pretext call and Florreich's interrogation for the jury. While playing these recordings, the prosecutor (Prosecutor) skipped past parts of the recording where the conversation had veered into irrelevant topics.
¶15 At one point while playing the recording of the interrogation, the jury heard a brief exchange in which Detective had begun to discuss a story Florreich had told Alex about an instance in which she had sex with a man in a park. Prosecutor stopped the audio, approached the bench, and suggested that she had inadvertently played this exchange. Prosecutor asked for permission to skip over the rest
of the story, saying that it was not relevant and was potentially prejudicial to Florreich. Counsel protested, initially saying "we should listen to the whole thing" and then obtaining assurances from the...
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