State v. Salazar, 20200561-CA

CourtCourt of Appeals of Utah
Writing for the CourtORME, Judge
Citation509 P.3d 198
Parties STATE of Utah, Appellee, v. Kevin SALAZAR, Appellant.
Docket Number20200561-CA
Decision Date31 March 2022

509 P.3d 198

STATE of Utah, Appellee,
Kevin SALAZAR, Appellant.

No. 20200561-CA

Court of Appeals of Utah.

Filed March 31, 2022

Troy L. Booher, Beth E. Kennedy, Salt Lake City, and Pal A. Lengyel-Leahu, Attorneys for Appellant

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

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


ORME, Judge:

¶1 Kevin Salazar challenges his conviction for aggravated sexual assault. Salazar primarily contends that his trial counsel provided ineffective assistance, warranting a new trial. We agree and reverse.


The Assault

¶2 One evening in October 2012, Salazar went to a hookah lounge he often frequented. Also at the lounge that night were the owner of the lounge (Owner), Shannon,2 Shannon's

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friend (Friend), and Shannon's coworker (Coworker). Shannon considered both Salazar and Owner to be her friends.

¶3 After smoking in the lounge for a time, Salazar, who looked to Shannon like he had been crying, asked to speak to Shannon in a storage closet in the hallway that connected the lounge to the front of the shop. After they entered the closet, Salazar closed the door and began kissing Shannon's neck. Shannon told him to stop, stating that she "ha[d] a boyfriend." This did not deter Salazar, and soon Owner knocked on the closet door and entered the closet. Shannon thought Owner was going to help her, but instead Owner "bent [her] over," "pulled [her] pants down," and began having "vaginal sex with [her]." While this was occurring, Salazar removed his pants and inserted his penis into Shannon's mouth. Shannon did not "agree[ ] to what was going on."

¶4 Shannon next recalled "being on the floor and [Salazar] was underneath [her] and [Owner] was behind her." At this point "[Salazar] was having sex vaginally" with Shannon while Owner was penetrating her anally. The men then high-fived each other, and Salazar said, "Double penetration." While this was occurring, Shannon "heard [Friend] on the other side of the door and ... started crying."

¶5 Friend heard Shannon say, "Help me," and Friend began banging on the door and trying to open it, but she was unsuccessful because it was locked. At this point, as Shannon continued crying, the men stopped. Shannon then pulled her pants back on and ran out of the closet. Friend noticed that Shannon "was really distraught," crying, and "could barely breathe when she was talking." Shannon and Friend then left the lounge. While leaving, Shannon ran into Coworker, who described her as "barely able to form sentences because she was crying so hard." She was "hysterical, sobbing, telling us, ‘I have to go. I have to go. I have to get out of here.’ " She then told Coworker, "We have to go. I was raped. These two guys took me into a closet and raped me."

¶6 While in the car heading home, Shannon told Friend what happened in the closet. When Shannon got home, she called an old friend (Friend 2) and, while crying, told him that Salazar and Owner "had raped [her]." Shannon did not call the police "[b]ecause [her] dad was dying of cancer and [she] didn't want to stress him out." But Friend 2 did call the police, and a detective then called Shannon. He noticed that her "speech pattern was broken ... [l]ike, she had been sad or crying or upset." The detective then met with Shannon at her home. While telling the detective about the assault, "she was sad," she "wouldn't look [the detective] in the eye," and her body was "slumped." Shannon also told the detective that at some point before the assault, a man had given her a soda and that she felt "weird" after drinking it. The detective convinced Shannon to go to the hospital for a sexual assault examination.

¶7 At the hospital, the nurse conducting the exam discovered injuries to Shannon's genitals and anus and later testified that Shannon's rectal injuries "stuck out" to her because they were the "worst" she had "seen on a patient" and so she was able to remember them years later when testifying. But the nurse also indicated that although severe, the injuries could be consistent with consensual sex. Shannon also told the nurse about the soda.

¶8 Because Shannon did not want to further stress her father, she did not "want to go forward with the prosecution of the case." The case sat idle until 2015—a year after Shannon's father had passed away—when a member of the production team of a television show that investigated unsolved sex crimes contacted Shannon. He told Shannon that "they pulled [her] case and wanted to go through the story of what happened and wanted to ... help [her] get through with getting charges pressed." Shannon agreed to participate in the show and personally appeared on the program. At some point during 2015,3 police interviewed Shannon, and after

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her interview, police interviewed Salazar in July 2015.

¶9 During his interview, Salazar gave his version of events in which Shannon "pulled my arm and we went into the [closet]" where she "pull[ed] down my pants" and "suck[ed] my penis." Shannon then opened the door when Owner knocked on it and pulled him in and "started jumping on him, making out [and] pulling down his pants." At this point, she began sucking Salazar's penis again while Owner penetrated her from behind. According to Salazar, Shannon then said she wanted him so they "switched." Shannon then said she "wanted" Owner and "they switched again," this time with Shannon on top of Owner while again giving Salazar oral sex. Salazar stated that at this point, Shannon "started to cry." He asked if she was "okay," but "she was just crying and crying and crying" and then left the closet.

¶10 Salazar recounted that Shannon called him a few days later and apologized for involving the police. She said her friends threw her "under the bus" but that she and Salazar "were cool again," and they continued to be friends and hung out multiple times. One of the interviewing officers stated that "it sounds like she was pretty excited, like she wanted to have sex," and Salazar responded, "That's what it seemed like, but sitting here I don't think so." An officer later asked, "Any chance you could have misinterpreted what [Shannon] may have wanted?" Salazar answered, "I doubt it. Due to the fact that she was the one pulling [our] pants down." The officer then asked whether he could have misinterpreted her pulling Owner into the closet, suggesting she may have done that "to help her get out of the situation she was in with you." Salazar responded, "I don't know." The officers again asked what happened, and Salazar stated that "as far as I can remember," Owner held "her down for a bit" before she left. The officers stated that, from their perspective, it seemed that Shannon did not want to be in the closet. They asked Salazar whether he knew she did not want to be in there, to which Salazar responded, "At the time probably not, but probably at the time, probably." The officers did not ask him to clarify this confusing response. Salazar also denied high-fiving Owner or saying anything to Owner, stating that they instead were "just looking at each other." The officers continued to press Salazar, stating, "You know for a fact she didn't want to be there; right?" Salazar responded, "Honestly, at the time probably not."4 The officers then asked whether Shannon running away "look[ed] like a girl that just want[ed] to have sex with the guys?" Salazar responded, "Now that it's more clear, probably not" but at the time it seemed like "she wanted to have sex."

Preliminary Hearing and Trial

¶11 Nearly seven years after the incident, and four years after the interviews, the State charged Salazar and Owner with aggravated sexual assault in August 2019.5 They were tried together. Salazar retained counsel (Trial Counsel) to represent him. Owner had his own counsel.

¶12 At the preliminary hearing, Shannon testified about the assault and her later contact with Salazar. She stated that she received "a few messages" from Salazar in the days immediately after the incident, but she "block[ed] him after that and ... reported it to the police." She also testified that she did not "hang out with him after [the assault]" and "never had any direct contact with Mr. Salazar." She further testified that, following the assault, she never texted, called, or left Salazar any voicemails. Shannon also testified that she remembered being given a soda at some point before the assault by an unidentified male but stated that she did not remember whether she told the detective she "felt funny or strange after drinking [it]." She then stated that she did not "feel that [the soda] affected [her] in any way." Salazar

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and Owner were bound over on the charged counts, and the case then proceeded to trial.

¶13 At trial, the State called Shannon, Friend, Friend 2, Coworker, the nurse, and the detective to testify. Except for Shannon, their testimony was consistent with the facts laid out previously.

¶14 During her testimony, Shannon had significant trouble remembering specifics, even stating at one point...

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