State v. Vallejo

• Decision Date: 29 July 2019
• Docket Number: No. 20180041,20180041
• Citation: 449 P.3d 39
• Parties: STATE of Utah, Appellee, v. Keith Robert VALLEJO, Appellant.
• Court: Utah Supreme Court

449 P.3d 39

STATE of Utah, Appellee,

v.Keith Robert VALLEJO, Appellant.

No. 20180041

Supreme Court of Utah.

Filed July 29, 2019

Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Solic. Gen., Salt Lake City, Ryan B. McBride, Christine Scott, Provo, for appellee

Michael D. Zimmerman, Troy L. Booher, Freyja R. Johnson, Salt Lake City, for appellant

Justice Pearce authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Petersen joined.

On Direct Appeal

Justice Pearce, opinion of the Court:

INTRODUCTION

¶ 1 Keith Robert Vallejo appeals his convictions of ten counts of forcible sexual abuse and one count of object rape. A jury convicted Vallejo of sexually abusing two of his sisters-in-law while they lived with him and his family. Vallejo contends that his trial counsel provided constitutionally defective representation because he failed to move to sever the charges regarding each victim so that Vallejo could have two separate trials. Vallejo also claims that his counsel rendered ineffective assistance by failing to object to certain testimony. In addition, Vallejo argues that the district court erred by admitting testimony that Vallejo claims were protected by attorney-client privilege. And finally, Vallejo seeks relief because on a couple of occasions during the trial, the court and a witness referred to Vallejo’s sisters-in-law as "victims." We affirm the convictions.

BACKGROUND

¶ 2 Keith Vallejo and his wife Kathleen lived in Provo with their six, and later seven, children.¹ J.K. frequently spent time with Vallejo, Kathleen, and their family.

¶ 3 Vallejo would often "pinch" or "slap" J.K.’s buttocks. When Vallejo hugged J.K., he would often "hold [her] and start biting [her] ear, ... and would not let go" if she tried to pull away. J.K. often fell asleep on a couch at the Vallejo home and would sometimes awake to Vallejo massaging her feet. On some occasions, he massaged higher up her legs towards her thighs.

¶ 4 J.K. later stayed at the Vallejo home for a week and a half. While a guest in the home, J.K. slept on a couch in the living room. One night, J.K. awoke to Vallejo partially on top of her, with his hands rubbing her breasts over her clothing. J.K. froze. She moved to see if Vallejo would stop. He stopped for a moment, but eventually resumed his touching. At one point, he slowly started to pull down J.K.’s pants to reach his hand underneath them. After J.K. moved again, he stopped long enough that she could pretend to awaken and get up.

¶ 5 Over the next week, on five or six different nights, Vallejo continued to touch J.K. while she was asleep or appeared to be asleep on the couch. He touched her in different ways on different nights. At times, Vallejo touched and kissed J.K.’s breasts and buttocks. Vallejo also rubbed J.K.’s vagina. He touched her both over and underneath her clothing.

¶ 6 J.K. was afraid and pretended to be asleep when Vallejo touched her. She did not report the touching to anyone at that time. At the end of the week and a half, J.K. returned home.

¶ 7 Vallejo sometimes spoke to his friend Rocky Steele about J.K. For example, on two or three occasions, Vallejo told Steele that J.K. "was the pick of the litter" of the family. On another instance, Steele asked Vallejo about a bottle of perfume that he observed in Vallejo’s truck. Vallejo said that it belonged to J.K. and while smelling it, commented, "[A]h, it just reminds me of [J.K.]."

¶ 8 Later that year, Kathleen’s youngest sister, H.K., came to live with the Vallejos while she completed her senior year of high school. For most of that year, H.K. slept on the couch in the Vallejos’s living room. Kathleen and H.K. often disagreed. H.K. regularly called her mother (Mother) and would seek her support in dealing with Kathleen.

¶ 9 Continuing a practice that began before H.K. moved in, Vallejo would routinely kiss H.K. on the cheek, give her long hugs, bite her ear, and slap her on the buttocks. At night, H.K. slept on the couch, often while Vallejo and Kathleen watched television near her. Vallejo typically sat next to H.K. on the bigger couch while she laid down. Kathleen sat on the smaller adjacent couch.

¶ 10 Vallejo would often massage H.K.’s feet while she was lying on the couch beside him. Sometimes he massaged H.K. while she was awake and other times she awoke to his massages. Over time, Vallejo "would progressively reach higher up [H.K.’s] legs and sometimes grab [her] butt, and start massaging" her buttocks. This occurred "many times." Vallejo touched her buttocks under her clothing more than ten times. One night, Vallejo massaged H.K.’s back and continued lower until he "reached his finger in between [H.K.’s] butt crack." H.K. reacted to the intrusion and Vallejo stopped.

¶ 11 On another occasion, H.K. awoke to Vallejo touching her breasts under her clothing. Vallejo had reached "his hand ... up the back of [H.K.’s] shirt, and ... was reaching around and touching [her] chest." H.K. pretended to be asleep, because she was "too afraid to do anything." H.K. testified that she was too frightened to say anything when Vallejo touched her in these ways and she typically pretended she was asleep. Vallejo touched H.K.’s chest "many" more times.

¶ 12 Another night, H.K. woke up on the couch to Vallejo massaging her legs and feet. Vallejo’s hand then reached up her leg, under her pants, grasped her butt, and then "his finger slowly reache[d] under [her] underwear." He "slowly put[ ] his finger in [her] vagina, and ... start[ed] stroking it."

¶ 13 After Vallejo stopped, H.K. cried. She then messaged a friend, telling her that she "need[ed] to talk to someone about the situation [she was in]." Kathleen awoke while H.K. was sending the message and reprimanded H.K. for using her phone.²

¶ 14 The next day, H.K. confided to her friend J.J. that Vallejo had "molested" her. J.J. testified that H.K. told her that her "sister’s husband would come in when he thought that [H.K.] was asleep, and would start to touch her when he thought she was asleep."

¶ 15 A few days later, H.K. began sleeping upstairs in an unfinished bedroom out of fear that Vallejo would touch her again while she slept. H.K. stayed with the Vallejo family until she finished the school year. For the remainder of her stay, Vallejo did not touch her while she slept but continued to spank her buttocks and give her long hugs. H.K. moved to her parents’ home at the end of the school year.

¶ 16 H.K. moved out of her parents’ house when she began college. And at some point during the school year, she caught pneumonia

. While H.K. was feeling poorly, Mother texted H.K. saying, "I woke up in the middle of the night and had a strong impression that you need a blessing.³ Can you ask [friend] and one of his roommates today?"

¶ 17 H.K. told Mother that she had cried herself to sleep, that she did not want to talk about what was wrong, and that it had something to do with Kathleen and Vallejo. H.K. later testified, "I just felt like I should’ve told her the truth as to why I was crying, or why she felt like I needed a blessing, because that night I did need [a] blessing."

¶ 18 A few days later, H.K. and J.K. returned home for Christmas. Mother asked to talk to H.K. "about why [she] cried [herself] to sleep that night." H.K. began to cry and refused to talk with Mother. Mother asked her whether it was related to Kathleen and Vallejo. H.K. said that it was.

¶ 19 Because H.K. refused to disclose more, Mother called J.K. J.K. and H.K. then spoke to each other. J.K. came home and the two then talked generally about what had occurred to them. J.K. told her father (Father) "about the molestation" and the four—J.K., H.K., Mother, and Father—discussed what happened.

¶ 20 The sisters also disclosed the abuse to their church leader and sought guidance. The church leader told the sisters that he would contact the church’s legal department and the church would "try to take care of it." While not entirely clear from the record, the church’s attorneys apparently reported Vallejo’s conduct to the police. A police detective eventually contacted H.K. and J.K. and sought a statement from each of them.

¶ 21 A church leader notified Vallejo of the allegations. After Vallejo learned of the allegations, but before charges were filed, Vallejo, Kathleen, and Vallejo’s friend Steele met together at Vallejo’s brother’s farmhouse.⁴ They spoke while waiting for Vallejo’s brother—an attorney—to arrive. Steele was already aware of the allegations against Vallejo, as Kathleen had visited with him and his wife the previous day. On their way to and at the farmhouse, Vallejo discussed "the accusations and the stress of it, and the emotion of it" with Steele.

¶ 22 Before his brother [Brother] arrived, and in Kathleen’s presence, Vallejo talked to Steele about things "that happened that weren’t appropriate." Vallejo informed Steele that "he would lay on the couch with them, be on the couch with them[,] ... be very close with them physically sometimes." Vallejo told Steele that on one occasion J.K. sat down on Vallejo’s foot on the couch and that Vallejo "started to move his foot in a way to arouse her, to stimulate her." Vallejo stated, "that he was sorry about that, and ... that it was just dumb." Steele testified that Vallejo never directly denied that he had engaged in the conduct that led to the charges, but that he insinuated that he had not.

¶ 23 The State charged Vallejo with ten counts of forcible sexual abuse, second degree felonies under Utah Code section 76-5-404 (2014), and one count of object rape, a first degree felony under Utah Code section 76-5-402.2 (2014).⁵ The charges regarding J.K.’s allegations and H.K.’s allegations were tried together.

¶ 24 Prior to trial, Vallejo argued that his farmhouse conversation was privileged because he had been seeking legal advice from Steele. The district court disagreed with that characterization and concluded that the conversation...