State v. Nunez

• Decision Date: 12 August 2021
• Docket Number: No. 20190317-CA,20190317-CA
• Citation: 498 P.3d 458
• Parties: STATE of Utah, Appellee, v. Oscar Alonso NUNEZ, Appellant.
• Court: Utah Court of Appeals

498 P.3d 458

STATE of Utah, Appellee,

v.Oscar Alonso NUNEZ, Appellant.

No. 20190317-CA

Court of Appeals of Utah.

Filed August 12, 2021

Rehearing Denied September 8, 2021

Ann M. Taliaferro, Salt Lake City, Attorney for Appellant

Sean D. Reyes and Jeffrey D. Mann, Salt Lake City, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.

Opinion

MORTENSEN, Judge:

¶1 After being convicted of various child sex abuse charges, Oscar Alonso Nunez now portrays his trial as a series of errors. His accuser, Kiara¹ , testified poorly at trial. To compensate, the State offered her Children's Justice Center interview to support each element of the charges. In addition, the court replaced a struggling juror during deliberations. Nunez claims the trial court erred in its rulings on these events and, for these and other reasons, seeks reversal. We affirm.

BACKGROUND

¶2 In late 2015, the State charged Nunez with two counts of sodomy on a child, two counts of rape of a child, and one count of attempted sodomy on a child against his fiancée's eight-year-old daughter, Kiara. At trial, the State called Kiara as its first witness. But, instead of providing testimony establishing each element of the charged conduct, Kiara testified only that, on more than one occasion, Nunez pulled off her pants and underclothes and touched her vagina with his fingers, and that he forced her to touch his penis with her hands. Kiara could not testify as to whether Nunez touched her vagina with anything else besides his finger or whether he forced her to touch his penis with anything else besides her hands.

¶3 Recognizing that this testimony alone would fail to support the charges, the prosecutor acknowledged, "I don't think it's any secret, but things didn't quite go the way I had planned," and in light of this, the State sought to introduce a video recording of Kiara's interview at the Children's Justice Center (CJC interview), which did contain statements supporting each element of the charges. The State moved to introduce the CJC interview under Utah Rule of Evidence 801(d)(1)(A) as a non-hearsay prior inconsistent statement. In opposition, defense counsel argued, among other things, that he "didn't think the scope of Rule 801(d)(1)(A), which is prior inconsistent denied or forgotten statements[,] was meant to be so broad as to allow the State to play the entire tape, but only to play portions of the tape ... inconsistent with the precise accusations she made on the stand." (Cleaned up.) After taking into account Nunez's objection, the trial court ruled that the State could play only certain CJC interview segments that contained statements inconsistent with Kiara's trial testimony and that could not otherwise be reasonably separated from the consistent statements. The court also ruled that Kiara had to take the stand for an opportunity to explain or deny the CJC interview's contents.

¶4 To lay foundation for the CJC interview, the State called the Children's Justice Center interviewer (CJC interviewer) to testify about the protocol followed while conducting an interview. She stated, "[W]e always [elicit] them to promise to tell the truth." The State then played the CJC interview for the jury, wherein Kiara described the occurrence of vaginal intercourse (rape), oral sex (sodomy), and attempted oral sex (attempted sodomy).

¶5 Afterward, the State asked Kiara about the statements she made in the interview. Although she acknowledged that she "didn't remember a lot of things" she had said in the CJC interview, she testified that she did "[n]ot really" "disagree" with any of the statements she made in the CJC interview. To further corroborate Kiara's allegations, the State offered—and the court received—evidence of Kiara's relevant medical examinations that showed her vaginal area to be "exquisitely tender," "swollen and puffy," "irritat[ed]," and "inflamed and red looking." These "injuries were consistent with [Kiara's] reported abuse."

¶6 To further support its case, the State called Nunez's daughter from a previous marriage (Witness), to testify about her observations of interactions between Kiara and Nunez. Because the parties had stipulated to omit certain accusations of abuse against Kiara alleged to have occurred in Wyoming, the parties hotly disputed whether Witness's testimony referred to the Wyoming accusations. In an apparent attempt to exclude the testimony by establishing that Witness's testimony would relate to the Wyoming accusations, defense counsel placed Nunez on the stand to clarify the "layout" of the homes in which Nunez had lived. But after hearing the testimony, the trial court ruled that the State had met its burden to show that Witness's testimony related to the charges at issue in the case and allowed the testimony to proceed. Among other things, Witness testified that on one occasion, when Nunez had called Kiara into his bedroom, she put her ear to the door and heard Kiara say, "Stop it. I don't want to do this anymore. I want to leave." Witness further testified that Kiara told her that Nunez was "touching [Kiara's] privates" but not to "tell anybody" because Nunez "would hurt" Kiara, her mom, and Kiara's little sister.

¶7 Outside the jury's presence, defense counsel successfully moved to strike Witness's testimony that Kiara told her that Nunez was "touching [Kiara's] privates" and the testimony that Kiara told Witness not to "tell anybody" because Nunez "would hurt" Kiara, her mom, and Kiara's little sister. However, before the court instructed the jury to disregard the stricken testimony, the parties stipulated to show the jury another portion of the CJC interview. In that portion of the CJC interview, Kiara said, in contradiction to Witness's trial testimony, that Nunez had never threatened her. Given that defense counsel had "addressed the matter in a different fashion" by introducing the contradictory statements, defense counsel withdrew the motion to strike. And the trial court, recalling "the presentation of the evidence" and how the defense had dealt with it, indicated that it recognized the alternative trial strategy, stating, "Right. That's what I could tell."

¶8 Defense counsel also sought to admit impeachment evidence showing bias and suggesting that Witness had motivation to misrepresent the facts because Nunez's ex-wife—Witness's mother—was hostile toward Nunez and had opportunity to coach Witness into lying on the stand. The trial court rejected the evidence, stating,

This evidence is intended to indicate or to imply ... an adversarial situation of feelings between [Nunez's ex-wife], [Witness's] mother, and [Nunez], [Witness's] father. The evidence of those adversarial feelings between [Witness's] mother and father is intended to imply a motive on [Witness's] mother's part to lie if lying would hurt [Nunez]. The inference of [Witness's] mother's motive to lie is intended to imply a motive on [Witness's] mother's part to encourage [Witness] to lie too. ... That inference is proposed to imply that [Witness's] mother did in fact encourage [Witness] to lie. And that inference is proposed to imply that [Witness] also did in fact lie. The [c]ourt concludes that that proposed testimony is too far removed from the facts that are relevant to this case.

The trial court made this ruling, in part, because defense counsel had not offered "independent foundation ... to show that any of the alleged hostility between [Witness's] mother and [Nunez] was actually communicated to [Witness]." Further, it found that "[a]ny feelings [Witness] may have had or motives she had to lie were not explored and she was not impeached while she was on the witness stand, so an attempt to impeach her now behind her back and through [another witness] ... [was] ... unfairly prejudicial." The trial court also blocked defense counsel's attempts to offer similar evidence, stating that allowing such evidence "could just completely hijack" the trial because the allegedly impeaching evidence was not explored when Witness testified and that "insufficient foundation [had been] laid to go now one or two steps removed from her to try to now use that to impeach her."

¶9 During closing argument, the prosecutor argued that even though Kiara had difficulty testifying on the stand, she had no difficulty speaking several years earlier during her CJC interview—which the prosecutor emphasized was "close in time to when this sexual abuse happened." He then stated that she "was repeatedly abused" and "repeatedly raped," and that "maybe [Kiara] had those many times confused." The prosecutor also noted that, when interviewing Kiara, the CJC interviewer employed a protocol "intended to elicit accurate information" and that the protocol is used "in an effort to get a good, reliable, honest, detailed statement." The prosecutor finally argued that "[j]ust because [Kiara] elaborate[d] and provide[d] more detail" in her CJC interview than she did on the stand "that's not an inconsistency. That's consistency. But there's nothing, at least, inconsistent about it." Defense counsel raised no objection to the prosecutor's argument.

¶10 Not long after the jury retired for deliberations, the trial court started receiving questions from the jury. While acknowledging they were not yet "hung," the jurors asked, "If the jury is hung, what is the next step?" The trial court declined to answer the question. The next day, as deliberations continued, the jury asked, "Are we able to have a verdict on some counts and be hung on other counts?" The trial court responded in the affirmative. Soon after, the jury asked, "Can we go to [an extended] lunch and allow a juror to be alone to gather her t[h]oughts? It's hard to be in the room and not deliberate without all being present." Around that same time, one juror (Juror 35) requested to speak privately with both counsel and the court. The trial court sent the jurors to lunch but held...