State v. Garcia-Lorenzo, 20200369-CA

CourtCourt of Appeals of Utah
Writing for the CourtHARRIS, Judge:
Citation2022 UT App 101
PartiesState of Utah, Appellee, v. Melecio Garcia-Lorenzo,Appellant.
Docket Number20200369-CA
Decision Date18 August 2022

2022 UT App 101

State of Utah, Appellee,
v.

Melecio Garcia-Lorenzo,Appellant.

No. 20200369-CA

Court of Appeals of Utah

August 18, 2022


Third District Court, Salt Lake Department The Honorable Elizabeth A. Hruby-Mills No. 181900321

Nathalie S. Skibine, Attorney for Appellant

Sean D. Reyes and William M. Hains, Attorneys for Appellee

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

OPINION

HARRIS, Judge:

¶1 A jury found Melecio Garcia-Lorenzo guilty of sexually abusing his eight-year-old stepdaughter (Child). Garcia-Lorenzo now appeals his convictions, asserting among other things that his trial attorney provided ineffective assistance by failing to seek a jury instruction that specifically directed the jurors that they needed to unanimously agree upon which acts formed the basis for each criminal charge. We find merit in Garcia-Lorenzo's arguments, and therefore reverse his convictions and remand for a new trial.

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BACKGROUND[1]

¶2 Garcia-Lorenzo lived with his wife (Mother), their two biological children, and Child, who is Mother's daughter from a previous relationship. Two of Garcia-Lorenzo's brothers also lived in the family home. The brothers each had their own room, Garcia-Lorenzo and Mother shared a room where their youngest child also slept, and Child shared a room with her younger half-sister. Mother typically kept the girls' room locked because one of the brothers had a girlfriend whom she did not particularly trust.

¶3 On the morning of December 31, 2017, Mother woke up and began looking for Garcia-Lorenzo. The couple had planned to go to the grocery store that morning to buy food and materials needed for a New Year's Eve dinner; they had family and friends coming over to the house that evening to celebrate the new year. After she did not find him in their bedroom, Mother went to Child's room to see if her daughters were awake. But when she attempted to open Child's bedroom door, she discovered that it was locked, so she went back to her bedroom to get the key. When Mother opened the locked door, she found Garcia-Lorenzo on the bed with the two girls, lying close behind Child. Garcia-Lorenzo and Child were covered by a blanket and, when Mother entered the room, Garcia-Lorenzo "pushed the blanket between" himself and Child, and Mother could see Child attempting to pull up her pajama pants underneath the blanket. Mother went to the bed, pulled the blankets off, and saw that Child's pajama bottoms were still halfway off, with one leg out.

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¶4 Garcia-Lorenzo then "jumped out of bed and slammed the door shut." Mother demanded to know what was going on, and Garcia-Lorenzo replied that he "didn't do nothing" and "wouldn't do that." He pulled his pants away from his waist and invited Mother to feel his penis, asserting that he would have an erection if he had been doing anything sexual to Child. Mother declined, but "could tell" that he did not have an erection. She then spoke with Child about what had happened. Child appeared "scared and worried," and told Mother that Garcia-Lorenzo had put his "thing in [her] butt."

¶5 At that point, Mother began trying to think "of a plan of how to get out of there safely with all three of [her] kids." Mother did not work outside the home and was dependent on Garcia-Lorenzo for money; she did not have family in Utah and was not sure where they could go. According to her testimony at trial, Mother did not show any affection toward Garcia-Lorenzo for the rest of that day and evening, although she tried to keep up appearances and act like nothing had happened in an effort to keep from ruining the holiday celebration.

¶6 Some of the other people at the house that day remembered things a bit differently. One of Garcia-Lorenzo's brothers testified that everyone was happy at the party, including Mother, who expressed several times how much she loved Garcia-Lorenzo. Another witness testified that Mother sat on Garcia-Lorenzo's lap and acted "normal" during the party. And one brother's ex-girlfriend testified that she heard "noises" coming from Mother and Garcia-Lorenzo's bedroom after the party that night. She testified that the noises were mostly coming "from a woman," and that it sounded like "someone was moaning." She was prepared to testify that the moans sounded pleasurable rather than painful, like the two were having sex, but the State objected, on foundation grounds, to the admission of that lay opinion testimony, and the court sustained the objection.

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¶7 Over the next few days, Mother continued to mull over the situation. On January 4, she told Garcia-Lorenzo's nephew's girlfriend about what had happened on New Year's Eve morning; in response, the nephew's girlfriend told Mother about a nearby women's shelter and suggested she might consider going there. Later that same day, Mother acted on this suggestion, and went to the shelter with all three children.

¶8 After arriving at the shelter, Mother called the police and told them what had happened on New Year's Eve. Officers then went to Garcia-Lorenzo's house to arrest him. They found him at the house, and he was cooperative with police as they took him into custody.

¶9 After Mother moved into the shelter, a police detective interviewed Child. No recording of this interview was played for the jury at trial; instead, the detective who conducted the interview testified about it, with the assistance of a transcript. As recounted by the detective, Child stated during the interview that Garcia-Lorenzo came into her bedroom, took his pants off, and took her pants off. After that, Mother came in and "was very mad." The detective then told Child that he had spoken with Mother, who had mentioned that somebody "possibly had put something in [Child's] butt." Child responded by stating that "Dad put his thing in my butt." She told the detective that it hurt, and when asked to clarify what "his thing" meant, Child "pointed to her crotch area." The detective asked Child if Garcia-Lorenzo had touched any other body part, and Child said "no." She later stated, however, that Garcia-Lorenzo "had not actually put his thing in her butt on that day," presumably referring to the New Year's Eve day when Mother had walked into the room, but instead had "put his thing in [her] butt" on a different occasion, when the family lived in a different house.

¶10 A few days after the interview, Mother took Child to the hospital for examination. Mother told the examiner that Garcia-

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Lorenzo had touched Child's "front and back with his thing," and that Child had been having nightmares and some unusual behavioral issues, as well as some "pink-tinged kind of discharge in her underwear." The examiner found no injuries requiring treatment, later explaining at trial that it is "very uncommon" to see injuries from child sexual abuse because the anal and genital areas are "made to expand" and tend to heal quickly.

¶11 The State eventually charged Garcia-Lorenzo with one count of sodomy on a child and one count of aggravated sexual abuse of a child, both first-degree felonies. In the charging document, the State alleged that the instance of sodomy had occurred sometime between September 1, 2017 and December 31, 2017, and that the instance of aggravated sexual abuse occurred "on or about" December 31, 2017. But the document did not otherwise specify which touch corresponded with which count.

¶12 The case proceeded to a first jury trial, which ended in a mistrial after a concern about one of the jurors arose on the morning of the trial's second day. Before the mistrial was declared, however, the State had already put on most of its case, including calling as witnesses both Child and Mother. Notably, however, the State did not call-and did not even list as a potential witness-any expert to testify regarding techniques for interviewing child witnesses. During the first trial, Garcia-Lorenzo's defense counsel cross-examined Child and was able to elicit some favorable evidence by asking leading questions. For instance, during cross-examination, Child testified that she had previously told Garcia-Lorenzo that Mother had told her what to say, and that if she didn't say what Mother wanted her to, she would get into trouble.

¶13 The case was later rescheduled for a second trial. At that trial, which took place in May 2019, the State again called Child, Mother, and several other of the same witnesses it had called at the first trial, but this time the State also called an expert to testify

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about techniques that should be used when conducting forensic interviews of child witnesses. This witness testified that a proper forensic interview with a child should be "unbiased or open-ended" and should allow "children to talk about things that have happened in their own words." And after the expert stated that a forensic interviewer should be "non-leading, non-suggestive, [and] very open-ended," the prosecutor began to ask a follow-up question about "leading questions," but Garcia-Lorenzo's attorney objected, arguing at a sidebar conference that the State was attempting to "discredit [his] cross-examination," and pointing out that, in conducting his cross-examination, he "wasn't doing a forensic interview" and that therefore the expert's testimony "doesn't help the fact finder in any way." Despite the objection, the court allowed to State to continue its examination, and the expert concluded by testifying that "the best question types" are "non-leading" and that "open-ended questions typically yield more accurate results [and] more accurate details."

¶14 During her testimony at the second trial, Child testified that, on New Year's Eve, Mother "came in the room and then saw [Garcia-Lorenzo] in the bed with [her]." The State asked what Garcia-Lorenzo was doing in her bed, and Child responded, "He was taking off my...

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