State v. Raheem

• Docket Number: 20200720-CA
• Decision Date: 07 March 2024
• Citation: 546 P.3d 331
• Parties: STATE of Utah, Appellee, v. Nawaf RAHEEM, Appellant.
• Court: Utah Court of Appeals

546 P.3d 331

2024 UT App 29

STATE of Utah, Appellee,

v.Nawaf RAHEEM, Appellant.

No. 20200720-CA

Court of Appeals of Utah.

Filed March 7, 2024

Third District Court, Salt Lake Department, The Honorable James T. Blanch, No. 151910845

Freyja Johnson, Salt Lake City, Emily Adams, and Hannah Leavitt-Howell, Attorneys for Appellant

Sean D. Reyes and Harian Decker, Salt Lake City, Attorneys for Appellee

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

Opinion

ORME, Judge:

¶1Nawaf Raheem challenges his conviction for aggravated sexual assault on several grounds.He contends that the State provided insufficient evidence at trial to support the mens rea element of the crime.He also argues that his trial attorney (Counsel) was constitutionally ineffective by failing to investigate and call a witness to testify in his defense.Relatedly, he seeks reversal "in the interests of fairness" based on our recent reversal of his co-defendant’s conviction on an ineffective assistance of counsel claim.Lastly, he argues that improper statements from the State and inadmissible testimony from its witnesses prevented him from receiving a fair trial.We affirm.

BACKGROUND¹

¶2 One night in October 2012, Shannon² and a coworker (Coworker) visited a hookah lounge that they frequented.The hookah lounge was "a big party place" at which people would smoke hookah, listen to music, and dance.There, Shannon and Coworker were joined by another friend (Friend) and Shannon’s then-boyfriend.Raheem, the owner of the hookah lounge, and Kevin Salazar, a regular customer, were also there that night.Shannon considered both Raheem and Salazar to be her friends.

¶3 At trial, Shannon testified that Salazar, who looked as if he had been crying, asked her to join him in a storage closet to talk.She stated that he shut the door behind her and began kissing her neck.Shannon told Salazar to stop, that she had a boyfriend, and that she"didn’t want to be in there," but he was undeterred.

¶4 Because it had been "a minute," Friend went to look for Shannon.She knocked on the storage closet door and tried to enter, but the door was locked.Raheem, who had also been standing outside the storage closet, then knocked on the door.Salazar opened the door for him, and Raheem "slid" inside.One of the men locked the door behind Raheem, leaving Friend outside and unable to enter.Friend testified that she then "just started banging on the door."At one point after Raheem entered, Friend heard Shannon say, "Help me."³

¶5 Shannon testified that when she heard Raheem knock on the door, she thought she"was going to be able to walk out of that room" and that Raheem would "stop the situation."But instead of helping Shannon, Raheem pushed her against Salazar, bent her over, pulled down her pants, and vaginally penetrated her with his penis.At the same time, Salazar removed his pants and inserted his penis into her mouth.Shannon did not "agree[ ] to what was going on," but she could not recall whether she said anything.

¶6 Shannon next recalled them all being on the ground, with her on top of Salazar and Raheem behind her.Salazar "was having sex vaginally and [Raheem] was anally."She again could not remember whether she said anything at that point.While doing this, the men "high fived" each other and Salazar said, "Double penetration."At some point, they also removed Shannon’s bra, leaving her "basically nude."

¶7 When Shannon heard Friend "banging on the door" and "yelling""something about a key,"she began to cry, and Salazar and Raheem stopped assaulting her.Shannon then dressed, ran out of the storage closet, and left the hookah lounge.⁴

¶8 Friend estimated that approximately five minutes had passed between when she began "banging on the door" and when Shannon exited the closet.Friend pursued Shannon, briefly returning to the hookah lounge to retrieve Shannon’s purse and keys, and the two left.Friend testified that Shannon "was really distraught," crying and saying, "Help me."In the car, Shannon told Friend had had happened in the storage closet.Shannon then dropped Friend off at home and told her that "she was going to go home and call the police."

¶9 Coworker testified that when Shannon returned from the storage closet, "she was hysterical, sobbing," and "barely able to form sentences because she was crying so hard."Shannon told her, "I have to go.I have to get out of here," and, "[W]e have to go.I was raped.These two guys took me into a closet and raped me."Shannon then yelled "at a group of individuals""something to the effect of, ‘I can’t believe you did this.I’m going to make you pay.’ "Coworker offered to take Shannon to the emergency room, but she declined the offer and "just wanted to go to her ear."

¶10 Shannon did not call the police when she arrived home.Instead, she called another friend and told him that she had been raped.The friend reported the rape to the police.A detective met with Shannon that same night, and she told him what had happened at the hookah lounge.The detective testified that during the conversation.Shannon would not look him in the eye and her posture was "slumped, saddened."

¶11 The detective convinced Shannon to go to the hospital that night for an examination.The examination revealed some bruises and abrasions on Shannon’s body, as well as injuries to the perineum, below the rectum, and to the rectum.The examining nurse testified at trial that Shannon’s examination "stuck out" to her because "it was the worst rectal injury [she had] seen on a patient."But she conceded that it was nonetheless possible for those injuries to be the product of consensual sex.The nurse also testified that, among other things, during the examination, Shannon "stated she felt as though she blacked out during the assault."

¶12 At the time, Shannon did not "want to go forward with the prosecution of the case" because she did not wish to cause stress to her dying father.Given that she and Raheem "were around the same areas, same places,"she saw Raheem "a few times" after that night.But because she"didn’t want to make a scene," and because she"wasn’t going to move forward with anything,"she"acted like nothing happened" on such occasions.On cross-examination, Shannon stated that she did return to the hookah lounge with friends in 2013, but she did not recall seeing Raheem at that time.She also stated she saw Raheem at a party in 2016 and that she came within eight feet of him.Shannon could not remember whether she saw Salazar again after the night of the party.

¶13 In 2015, a year after her father passed away, Shannon was contacted by the producers of a television program that dealt in unresolved crimes.The producers were interested in her case and Shannon agreed to participate in the show.As a result, the police reopened the case.

¶14 With Shannon’s cooperation, the State charged Salazar and Raheem each with one count of aggravated sexual assault.Raheem and Salazar, represented by different counsel, were tried jointly in 2019—nearly seven years after the sexual assault in the storage closet.At trial, the State presented testimony from, among others, Shannon, Friend, Coworker, the friend who called the police, the detective who interviewed Shannon on the night of the incident, a detective who interviewed Shannon in 2015, and the examining nurse.That testimony is recounted, in relevant parts, above.Of note, Shannon’s testimony contained multiple instances in which she could not remember specifics and had to refresh her memory by reviewing copies of her police interview, the report from the sexual assault exam, and the preliminary hearing transcript.Additionally, as detailed in Part III.A below, certain statements made by the witnesses and by the prosecutors were the subject of objections and a motion for mistrial.

¶15 As part of his defense case, Raheem called his brother and a friend to testify.His brother testified that he was working at the hookah lounge that night and that he eventually went looking for Raheem.He stated that when he knocked on the storage closet door, Raheem stepped out, followed by Shannon.He stated that Shannon smiled at him and that she did not appear to be upset or to have been crying.He had not heard "any screaming or crying or anybody call for help" before knocking on the door.He testified that Friend then appeared and pulled Shannon by the arm, and the two "start[ed] walking and talking."

¶16 Raheem’s friend testified that he was also at the hookah lounge that night and that he saw Salazar and Shannon walk into the storage closet, followed about a minute later by Raheem.He did not hear "any crying, screaming or calls for help" coming from the closet before or after Raheem entered.He stated that approximately five minutes later, he saw Raheem’s brother knock on the door and that Raheem, Salazar, and Shannon all exited the closet.To him, Shannon did not appear upset or to have been crying.He testified that Friend, who did appear upset, then approached Shannon and pulled her away.

¶17 During closing argument, Counsel asserted, among other things, that Shannon, Raheem, and Salazar engaged in a consensual threesome in the closet.He argued that Shannon’s returning to the hookah lounge in 2013 and coming within eight feet of Raheem at the 2016party suggested that she had not been sexually assaulted that night.He further asserted that Shannon’s testimony was unreliable and that it should be disregarded in its entirety.

¶18 The jury convicted Raheem and Salazar as charged.Subsequently, through new counsel, Raheem filed motions to arrest judgment and for a new trial.In the motion to arrest judgment, he argued, in relevant part, that the State failed to prove that he"at the very least … acted recklessly in regard to [Shannon’s] consent."And in the motion for a new trial, Raheem argued, among other things, that he was...