State v. Nunes

Decision Date30 April 2020
Docket NumberNo. 20161070-CA,20161070-CA
Citation2020 UT App 71
PartiesSTATE OF UTAH, Appellee, v. ASHTEN NUNES, Appellant.
CourtUtah Court of Appeals

Third District Court, Salt Lake Department

The Honorable Vernice S. Trease

No. 151903010

Freyja R. Johnson, Attorney for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGE DIANA HAGEN concurred. JUDGE GREGORY K. ORME dissented, with opinion.


¶1 Appellant Ashten Nunes challenges his conviction for rape, contending that his trial counsel (Trial Counsel) provided ineffective assistance. We affirm.


¶2 In September 2013, Nunes, then seventeen, met a fourteen-year-old girl (Victim) at a concert. Victim and Nunes soon begancommunicating through text messages and a variety of social media platforms. Victim felt she could relate to Nunes because they both had "a troubled home life" and "a hard upbringing." Victim was also "intrigued" by Nunes "because he was into things like magic and crystals." Their electronic communication soon turned sexual, with Nunes messaging Victim about what he wanted to do with her sexually. Victim then began sneaking out of her house, against her parents' express wishes, to spend time with Nunes at his mother's home. Victim enjoyed going there because she could do drugs and Nunes's mother "didn't care" and never told her to go home. But Victim's father did care, and he soon secured a protective order barring any contact between Nunes and Victim. Nunes and Victim consistently disregarded the protective order. Victim also admitted, "I cared about [Nunes] because he told me things that nobody has ever told me before and it made me feel like I was actually loved by someone and that's really all I wanted at that time, because I had no one . . . ."

¶3 Nearly every time Nunes and Victim spent time together, Nunes would grope Victim and "beg[] . . . to have sex" with her, but Victim would consistently "push him off," tell him no, and say that she was "not ready." Because Victim had never been in a relationship before, she did not realize that Nunes's behavior was "not normal," and she "just kind of [went along] with it." That said, Nunes consistently abided by Victim's drawing the line at sexual intercourse during this period.

¶4 Throughout the entirety of their relationship, Nunes often talked about another girl he was dating, which made Victim angry and jealous. But whenever Victim attempted to end the relationship, Nunes threatened to kill himself or hurt Victim or Victim's father.

¶5 On December 5, 2014, Victim, then fifteen, and Nunes, then eighteen, went to Nunes's house, where he had recently moved, and began kissing on his bed. Nunes attempted to removeVictim's clothes, but she again refused to engage in sexual intercourse.

¶6 The sexual activity giving rise to the rape charge in this case occurred the next day (December 6, 2014) at Nunes's house. Before arriving, Victim messaged Nunes stating that she was "excited to see [him] and give [him] somethin somethin," which she revealed to be "shrooms and birth control."2 When she arrived at his house, Nunes began to kiss her, and she reciprocated. Victim then "freely" followed Nunes into his bedroom, which had a red sticker on the wall "that said 'rape' and that really scared [her]." Nunes removed her clothing and propped her up on her knees while holding her head down against his bed. Victim testified at trial that Nunes at no point asked whether she wanted to have sex. To the contrary, she testified that she expressly asked him to stop "before he even did anything," but he ignored her request and inserted his penis into her anus and vagina, while she screamed and cried.3 She testified that she "definitely said stop once he started" and that Nunes was "doing this black magic chant while he was raping" her and "was saying this thing about demons" and how she now belonged "in his whorehouse." She also testified that after the rape, "there was blood on [her] hands and . . . all over [her]." Victim stated that the sexual assault "hurt more than anything [she had] ever experienced" and made her wonder "why . . . people enjoy sex." She later revealed that she"didn't realize that [sexual intercourse] didn't have to hurt so much."4

¶7 During cross-examination, Trial Counsel highlighted inconsistencies among Victim's trial testimony, her initial interview with the investigating detective (Detective), and her testimony at the preliminary hearing. In the interview with Detective, Victim said that she was initially kneeling while Nunes penetrated her anus, but she turned around and asked him if they could cuddle instead. Victim told Detective that Nunes agreed, and she shifted to her side and he began to penetrate her again. Victim also told Detective, according to his notes, that Nunes had asked her whether she wanted to have intercourse, to which she responded that she did. Additionally, at the preliminary hearing, Victim testified that her "eyes were watering but [she] wasn't really crying" and that Nunes first penetrated her vagina then her anus.

¶8 Victim testified that she did not initially realize that she had been raped after the sexual encounter with Nunes: "I didn't know what sex was supposed to be like and I didn't [know] what rape was like and I just [thought] maybe . . . this isn't meant for me or maybe I'm too young or maybe I was doing something wrong or maybe I should just get used to it." She further testified that she had always conceived of rape in different terms:

What they tell you in school, like a girl walking down an alleyway in the middle of the night and being kidnapped by some weirdo or some guy in a van saying there's candy, come get some candy or being drugged by some college frat boy at a party. I never thought that rape could be someone that—from someone that I trusted.

After the rape, Victim told Nunes that she wanted to go home. Nunes called his mother to come pick them up, and Nunes's mother came and drove them to Victim's house. Victim said she was "trying so hard not to cry" as she sat next to Nunes in the car on the way home, but she still kissed him goodnight when she got out of the car. Once home, Victim sent Nunes a message saying, "[T]hank you lovely," and telling him that she loved him so much that she could not even "begin to put [it] into words." They also discussed getting together the next day to go snowboarding. In contrast to this seemingly affectionate behavior, Victim also testified that after she got to her house, she "just cried for a long time" and "took a long shower." She recalled thinking that she "never wanted to have sex after that if that's what sex was."

¶9 Although they did not go snowboarding the next day, they continued to exchange messages. Nunes asked Victim if she would kiss his other girlfriend in front of him, a request which greatly upset Victim. Nunes also told Victim he was angry that his other girlfriend had cheated on him, and Victim responded that Nunes "cheated on her yesterday too" and said, "[R]emember you fucked someone else last night too." Victim also told Nunes, "I gave everything away to you and you don't even fucking care. [T]hat kills me," and, "I lost my virginity to you last night and you mean everything to me, but I won't take you treating me like that."

¶10 The day after this exchange, Victim reported to her school counselor that she felt suicidal, and she was subsequently admitted to the hospital. Once discharged, Victim messaged Nunes, telling him that he was "the only thing keeping [her] here." For the next month, Nunes and Victim continued to communicate. In these messages, Victim was initially affectionate, but as the days progressed, she explicitly indicated that she did not want to see Nunes anymore, to which Nunes would respond with threats of suicide. On January 3, 2015, Victim messaged Nunes to stop contacting her.

¶11 A few days later, on January 6, Victim disclosed to her psychotherapist (Counselor), a licensed clinical social worker, that "she had lost her virginity," whereupon she "went into a full-blown panic attack, . . . hyper-ventilating . . . [and] sobbing" for about twenty minutes. After being calmed by Counselor, Victim described what happened on December 6, 2014. It became apparent to Counselor that Victim thought she was describing a sexual experience and not reporting a crime. But after hearing Victim's description, Counselor informed Victim, "[T]hat wasn't sex[;] that was rape." Victim "was relieved" by this evaluation and said she "knew that something was wrong." Counselor then told her that she was going to report the incident to Victim's parents, but Victim "begged" her not to do so. During a follow-up session two days later, Counselor convinced Victim that her parents must be told that day about the incident. Victim's father reported the rape to the Division of Child and Family Services, and on January 29, 2015, Victim was interviewed by Detective at the Children's Justice Center (CJC).5 Detective subsequentlysearched Nunes's house and found a blanket with four potential blood stains. The stains were tested, and one stain matched Victim's DNA.

¶12 In early February, Victim was examined by a doctor. The examination revealed a healed cut to her hymen. The doctor who performed the examination testified that the cut was "entirely consistent" with Victim's account of being raped, but he acknowledged that the cut could also have resulted from consensual intercourse.6 The examination did not reveal any sign of injury to Victim's anus, but the doctor explained, "[E]ven in acute exams, exams that are done immediately or within a few days of an assault, we seldom see anal trauma." The doctor noted that one would "not necessarily" expect to find trauma even "[i]f something went into the anus without any lubrication and against a person's will."

¶13 The State subsequently charged Nunes with one count of rape and...

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