State v. Nunez-Vazquez

2020 UT App 98
THE UTAH C OURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
J AMIE ERNESTO NUNEZ -VASQUEZ,
Appellant.
Opinion
No. 20160794-CA
Filed June 25, 2020
Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 141900845
Nathalie S. Skibine, Attorney for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
J UDGE MICHELE M. C HRISTIANSEN FORSTER authored this Opinion,
in which J UDGES G REGORY K. ORME and D AVID N. MORTENSEN
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 	Jamie Ernesto Nunez-Vasquez (Defendant) challenges his
conviction for forcible sodomy. With respect to the exclusion of
evidence of the victim’s past sexual history, Defendant argues
that the trial court violated his constitutional rights and that his
trial counsel rendered ineffective assistance. Defendant further
contends that the court erred in declining to give a requested
mistake-of-fact jury instruction. Lastly, he raises other ineffective
assistance claims related to arguing the rules of evidence, failing
to exclude Defendant’s statements, and failing to object to certain
testimony. We affirm.

State v. Nunez-Vasquez
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BACKGROUND1
Sexual Assault
¶2 	In October 2013, a man (Victim) went to a house party
with a gay friend and began drinking any alcoholic drink “that
[he] could get a hold of.” There, Victim met, for the first time,
Defendant and another man (Friend), who both identify as gay.
Victim, Friend, and Defendant then left the house party together
and continued drinking at a bar. After a quick stop at Friend’s
apartment, the trio went to a night club, where the heavy
drinking continued.
¶3 	Throughout the night, Victim drank “alcohol in excess,”
and “if somebody gave [him] alcohol, [he] would drink it.”
Defendant heard Victim say at one point that he “identified as
straight.” After the partying and drinking had ended, the trio
returned 	to 	Friend’s 	apartment, 	even 	though 	Victim 	“had
wanted to go home.” When they arrived at the apartment, at
about 5:00 a.m., Victim took off his shirt and “passed out,
blacked out” on the couch.
¶4 	The next thing Victim remembered was waking up on the
floor of a “random apartment.” His pants and underwear were
pulled down to his ankles, and Defendant, “someone [he] hardly
knew,” was fondling him. Victim “broke free” and felt pain and
lubricant in his rectum, the latter sensation being consistent with
a container of personal lubricant sitting on a nearby table. Victim
immediately went outside and called the police, reporting that
he had been raped. This call was made at 11:43 a.m. When
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence 	only 	as 	necessary 	to 	understand 	issues 	raised 	on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

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officers arrived, they found Victim outside “pacing around,”
“visibly upset,” and talking “loud” and “fast.”
¶5 	When Defendant, who was also outside, was identified as
the suspect, he “turned and started to walk away.” The officers
told him to stop and proceeded to detain him and place him in
handcuffs. Defendant was informed by an officer that he was not
yet under arrest. An officer recited the Miranda rights from
memory, 	forgoing 	use 	of 	the 	printed 	card 	he 	carried 	and
believing that he “got it pretty close to being right.” See generally
Miranda v. Arizona, 384 U.S. 436 (1966). An officer next asked
him, “Having these rights in mind, do you wish to talk to me
now?” Defendant responded, “Sure,” and proceeded to talk with
the officer. The officer asked Defendant if it was true that he was
lying 	behind 	Victim 	fondling 	him, 	to 	which 	Defendant
responded that it was. The officer then asked Defendant if he
had sex with Victim. Defendant said that “he didn’t know.” But
when asked why he thought Victim “was open to sex with
another man,” Defendant replied that “he thought it was mutual
because they were close.”
¶6 	Victim was transported to the hospital and examined by a
sexual 	assault 	nurse 	examiner 	(Nurse). 	Later 	in 	the 	day,
Defendant was taken to a holding room and interrogated by a
different officer. Defendant told the officer that he was not sober
but responded affirmatively when asked if 	he could speak
clearly and “recall the events that took place” the night before.
Defendant also asked if he needed an attorney. The officer
responded, “[I]f you’d like an attorney then that’s up to you”
and, “[Y]ou waived your rights [earlier], meaning that you
agreed to talk with [us], that’s why at this point I’m just trying to
ask you [if] you understand those rights.” Defendant answered,
“I do.” Finally, Defendant asked if he had to answer questions if
he did not “feel comfortable.” The officer told him that he did
not have to answer the questions and asked him if he needed to

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read him his rights again, to which Defendant replied, “No, I
understand.”
¶7 	During the interrogation, Defendant stated that he did not
think Victim was gay but that he has “a thing for straight guys”
and that “it’s attractive to [him]” and a “challenge, getting a
straight guy” to have sex with him. Defendant also said, “Just
because a guy tells me that [they’re] straight doesn’t mean
that . . . they don’t want to [have sex].” He explained that he has
“had sex with plenty of straight men.” Defendant then admitted
that he removed Victim’s pants, had sex with Victim, and
fondled him but believed that Victim was “completely awake”
and consenting.
¶8 	Defendant 	was 	subsequently 	charged 	with 	forcible
sodomy.
Legal Proceedings
¶9 	At the preliminary hearing, Victim testified that he had a
girlfriend, was not gay or bisexual, and had never had sex with a
man. 	Defendant’s 	trial 	counsel 	subsequently 	filed 	a 	motion
under rule 412 of the Utah Rules of Evidence seeking to admit
evidence at trial of Victim’s “sexual behavior or predisposition,”
specifically that “Defendant ha[d] male witnesses that w[ould]
testify that they ha[d] engaged in sexual activity with [Victim].”
Trial counsel argued, “The exclusion of this line of questioning
will violate . . . Defendant’s constitutional rights to confront and
cross-examine [Victim] under the Confrontation Clause.” Trial
counsel also asserted that Defendant should be able to confront
Victim with the sexual-behavior evidence under rule 608(c) of
the Utah Rules of Evidence to impeach Victim’s testimony given
at the preliminary hearing that he was straight.
¶10 	The State argued that such evidence was inadmissible
because 	rule 	412 	prohibits 	the 	admission 	of 	evidence 	of 	a

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victim’s prior sexual activity or predisposition to prove consent
and rule 608 forbids the use of extrinsic evidence to prove
specific instances of conduct to attack a witness’s character. The
State did not specifically address Defendant’s argument that
evidence of Victim’s prior sexual behavior was admissible under
rule 608(c). The court agreed with the State and denied the
motion but left open the possibility that Defendant might seek
admission of the evidence at trial if Victim opened the door by
testifying 	that 	he 	was 	not 	gay 	and 	thus 	would 	not 	have
consented. 	Trial 	counsel 	replied 	that 	he 	“underst[oo]d 	the
ground rules” and otherwise had “no response.”
¶11 	Before trial, Defendant filed a motion seeking to have his
custodial statements suppressed because he “clearly indicated
that he was not sober and that he did not feel comfortable
answering questions.” The trial court denied the motion, finding
that Defendant had “an understanding of his rights and chose to
speak to the officer.”
¶12 	At trial, Victim testified that he had “some problems with
[his] memory” of the sexual assault because approximately a
year after the assault, he was in a motorcycle accident that
placed him in a coma and “caused [him] to lose all [his] long-
term 	and 	short-term 	memory.” 	After 	Victim 	described 	the
circumstances of the sexual assault to the best of his recollection,
see supra ¶¶ 2–4, the State asked Victim, “Do you remember
flirting 	with 	[Defendant] 	that 	night?” 	Victim 	responded, 	“I
definitely would have never done that.” The State followed up:
“[D]o you have any independent memory of that?” Victim
responded, “I did not do such behavior.” Then the State asked,
“Do 	you 	remember 	if 	you 	ever 	had 	conversation 	with
[Defendant] that night about having sex?” Victim answered, “I
did not have such conversation.” On cross-examination, trial
counsel 	questioned 	Victim, 	“Isn’t 	it 	true 	that 	you 	don’t
remember what you said or did with my client at any location
that you were at that evening [i.e., the night preceding the sexual

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assault]?” Victim responded, “I would know if I would have
given consent.”
¶13 	Nurse, who first examined Victim, then testified. The
following exchange took place during her testimony:
[State]: Now, did [Victim] tell you that he had
remembered being sexually assaulted?
[Nurse]: No.
[State]: Did that concern you?
[Nurse]: No.
[State]: Why’s that?
[Nurse]: 	It’s 	very 	common 	that 	either 	due 	to
alcohol, drugs or just the traumatic experience, a
lot of people will not have any real recollection or
they 	don’t 	know 	a 	lot 	of 	detail 	about 	what
happened. It’s just part of trauma.
[State]: Now, in this case, did [Victim] give you any
indication in the history that would explain why he
wasn’t able to remember?
[Nurse]: No, just the fact that he said he had
several drinks and he wasn’t sure what was in
them. That can be a red flag for maybe possibly
that someone put drugs in his drink, which can
happen. So it just kind of went along with what
maybe could have happened from his story with
drinking.
[State]: What about just alcohol?

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[Nurse]: Sure.
[State]: Could just alcohol consumption?
[Nurse]: Oh yeah, of course.
¶14 	On cross-examination, trial counsel asked Nurse if she
was able to tell if the sex was consensual or not. Nurse answered
that she could not because “[t]hat’s not part of [her] job. [She is]
just there to document injury and say that it could have come
from assault but it may not have.”
¶15 	Defendant testified on his own behalf. He testified that
Victim was “an acquaintance” and the day of the sexual assault
was the “second or th[ird] time [they had] met.” Defendant was
“really intoxicated,” but he remembered seeing Victim “tak[e]
his shirt off” and “[lying] down on the couch with [Victim].”
Defendant further testified that they ended up on the floor and
that Victim was “hard and pressing into [him] and grinding into
[him].” He also claimed that “after [Victim] pressed into [him],”
the next thing he remembered was being “in the opposite
direction spooning and [Victim] was pressing” backward against
him, signaling to Defendant that Victim “clearly wanted to have
sex.” He further testified that he “had no reason to believe that
[Victim] was unconscious” because “[Victim] was moaning a
little bit” and “pressing into” him. When asked if he had asked
Victim if he wanted to have sex, Defendant replied, “I [didn]’t
feel like we were in that situation where he needed to ask me, if
he was cuddling me. I think it was pretty clear. He was all over
me when I woke up.”
¶16 	At one point, trial counsel asked if Defendant spoke with
the officer at the scene “voluntarily.” Defendant answered that
he 	“was 	a 	little 	bit 	confused.” 	The 	State 	objected, 	and
Defendant’s response was stricken. Trial counsel continued and
asked Defendant why he initially told the officer that he did not

State v. Nunez-Vasquez
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know if he had sex with Victim, and Defendant responded it was
because he “didn’t want to talk to him” since he “didn’t know
what was going on.” Trial counsel also asked Defendant if he
was handcuffed and if the officer was in uniform. Defendant
responded affirmatively to both questions. Trial counsel then
asked if “anybody offer[ed] [him] water or something to eat”
once he was taken to the police station. Defendant said “[n]ot for
a while” and that “[t]hey didn’t offer [him] water until he was
about to [be] interview[ed].” The State objected and at a sidebar
stated, “It seems like every question seems to be going to
whether his statement was involuntary or whether he was forced
into it . . . . That’s all been litigated and it’s the judgment of this
Court, not the jury.” The court asked for a response from trial
counsel, who conceded, “[The State] might have a point there.”
¶17 	During cross-examination, Defendant stated that before
he put his penis into Victim’s anus, “[Victim] was pressing his
penis into [him]” and that at this point, he was in front of Victim.
The State then asked if it was correct that Defendant never told
the officers on the day of the sexual assault that he was in front
of Victim or “that [Victim] was pressing his penis into [him].”
Defendant responded that he “wasn’t comfortable talking to
these officers.” The court then intervened and told Defendant to
“please listen very closely to the question” and that he could
“answer that question . . . with a yes or a no.” Defendant then
answered that he did not tell the officers that Victim had done
that.
¶18 	Trial counsel proposed three jury instructions supporting
a mistake-of-fact defense. The trial court refused to give those
instructions 	and 	provided 	the 	jury 	with 	the 	court’s 	own
instructions that were “a little easier . . . to understand,” while
including, 	in 	the 	view 	of 	the 	trial 	court, 	“everything 	[trial
counsel was] asking for.”

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¶19 	The jury convicted Defendant of forcible sodomy, and the
court sentenced him to five years to life in prison. Defendant
appealed.
Appeal and Rule 23B Remand
¶20 	Through new counsel on appeal, pursuant to rule 23B of
the Utah Rules of Appellate Procedure, Defendant filed a motion
alleging ineffective assistance of trial counsel and seeking a
remand to develop facts on trial counsel’s alleged ineffective
assistance. Specifically, Defendant alleged that trial counsel was
ineffective when he “moved to admit evidence of Victim’s sexual
behavior under Utah Rule of Evidence 412, but did not provide
the name of the witness, a detailed proffer of his testimony, or a
complete explanation of why it was critical to the defense.”
Defendant also claimed that trial counsel rendered ineffective
assistance in failing to renew his rule 412 motion when Victim
stated at trial that he “definitely would have never” flirted with
Defendant, that he “did not do such behavior,” and that “[he]
would know if [he] would have given consent.”
¶21 	As part of his rule 23B motion, Defendant attached an
affidavit from a male individual who stated that he would testify
that he knew Victim and that Victim had previously made a
sexual advance toward him. This individual also affirmed that
he had spoken to trial counsel and was willing to testify at
Defendant’s trial.
¶22 	This court granted Defendant’s motion and temporarily
remanded the matter to the trial court to take evidence and make
a record regarding trial counsel’s alleged failure to provide a
detailed proffer and to not renew the rule 412 motion after
Victim testified. On remand, the trial court heard testimony from
trial counsel and two male witnesses. The two male witnesses
testified that Victim was known to engage in flirtatious behavior
with men and that Victim previously made sexual advances

State v. Nunez-Vasquez
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toward them. Trial counsel testified that he had interviewed
three men (the two who testified at the remand hearing and one
other) 	about 	Victim’s 	“sexual 	predispositions.” 	When 	asked
whether Victim’s responses during trial opened the door to
renew the rule 412 motion, trial counsel responded that “maybe
it just didn’t strike” him to renew it and “[m]aybe [he] was
distracted” because “there were so many things going on in that
trial.” But trial counsel stated that even with the benefit of
hindsight, he was unsure if those responses “actually open[ed]
the door.”
¶23 	At the conclusion of the hearing, the trial court found that
trial counsel (1) “did not perform deficiently because a more
detailed proffer would not have changed the pre-trial ruling”
and (2) “reasonable counsel could decide that [Victim]’s trial
testimony did not open the door to the proposed impeachment.”
The matter is again before us.
ISSUES AND STANDARDS OF REVIEW
¶24 	Defendant’s appeal raises three issues arising from the
exclusion of Defendant’s rule 412 evidence. First, Defendant
argues that the trial court violated his constitutional rights to
confrontation by excluding crucial evidence of Victim’s sexuality
under rule 412 of the Utah Rules of Evidence. It is well-settled
that our appellate courts generally review evidentiary matters
for an abuse of discretion. See State v. Tarrats, 2005 UT 50, ¶ 16,
122 P.3d 581 (“We will not reverse the trial court’s ruling on
evidentiary issues unless it is manifest that the trial court so
abused its discretion that there is a likelihood that injustice
resulted.” (quotation simplified)). But the standard of review is
different when a defendant’s evidentiary challenge is based on
constitutional rights to confrontation. That is, “when reviewing a
trial court’s decision to limit cross-examination, we review the
legal rule applied for correctness and the application of the rule

State v. Nunez-Vasquez
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to the facts of the case for an abuse of discretion.” State v. Marks,
2011 UT App 262, ¶ 11, 262 P.3d 13 (quotation simplified).
¶25 	Second, Defendant contends that trial counsel rendered
ineffective assistance of counsel by failing to “support his rule
412 motion with a 	detailed proffer.” And third, 	Defendant
argues trial counsel was ineffective when he failed to renew his
rule 412 motion when Victim stated at trial that he “definitely
would have never” flirted with Defendant, that he “did not do
such behavior,” and that he “would know if [he] would have
given 	consent.” 	“When 	a 	claim 	of 	ineffective 	assistance 	of
counsel is raised for the first time on appeal, there is no lower
court 	ruling 	to 	review 	and 	we 	must 	decide 	whether 	the
defendant was deprived of the effective assistance of counsel as
a matter of law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336
P.3d 587 (quotation simplified). “However, if a trial court has
previously reviewed the ineffective assistance of counsel claim,
an appellate court is free to make an independent determination
of a trial court’s [legal] conclusions, though the factual findings
of the trial court shall not be set aside on appeal unless clearly
erroneous.” State v. Kozlov, 2012 UT App 114, ¶ 29, 276 P.3d 1207
(quotation simplified).
¶26 	Defendant additionally claims that the trial court “erred
when it declined to give [his requested] mistake-of-fact [jury]
instruction on consent.” “We review a district court’s refusal to
give a jury instruction for abuse of discretion.” State v. Karren,
2018 	UT 	App 	226, 	¶ 	18, 	438 	P.3d 	18. 	“But 	in 	certain
circumstances, the court’s discretion will be strictly cabined. For
instance, a criminal defendant is generally entitled to have the
charged offense defined for the jury.” Miller v. Utah Dep't of
Transp., 2012 UT 54, ¶ 13, 285 P.3d 1208.
¶27 	Defendant also raises three more claims of ineffective
assistance of counsel. Defendant first argues that trial counsel
was ineffective for not correctly arguing the rules of evidence in

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attempting 	to 	admit 	evidence 	of 	the 	circumstances 	of
Defendant’s 	interrogation, 	which 	the 	trial 	court 	prohibited.2
2. Defendant asks us to review this claim on the merits and find
that the trial court “erred when it sustained the State’s objection
to [his] testimony explaining the circumstances of his police
interview.” In the alternative, Defendant asks us to review the
claim for ineffective assistance of counsel if we determine that it
was not preserved. The State argues that trial counsel invited the
error, if any, and we can review this claim only for ineffective
assistance of counsel. We agree with the State.
An issue is not preserved for appeal if a party invited the
trial court to err. “Under the doctrine of invited error, an error is
invited when counsel encourages the trial court to make an
erroneous ruling.” State v. McNeil, 2016 UT 3, ¶ 17, 365 P.3d 699.
“[W]e have traditionally found invited error when the context
reveals that counsel independently made a clear affirmative
representation of the erroneous principle.” Id. ¶ 18.
On 	cross-examination 	of 	the 	officer 	who 	interrogated
Defendant, trial counsel asked if there “was a complete Miranda
warning” given. The State objected, stating, “Miranda’s not an
issue for the jury. That’s a legal issue. That’s not a jury issue.”
Trial counsel then responded, “okay,” and continued with the
cross-examination. On direct examination of Defendant, trial
counsel attempted multiple times, with sustained objections, to
elicit 	testimony 	from 	Defendant 	about 	the 	circumstances
surrounding 	his 	interrogation. 	Then 	at 	a 	sidebar, 	the 	State
argued, “It seems like every question seems to be going to
whether his statement was involuntary or whether he was forced
into it. That’s all been litigated and it’s the judgment of this
Court, not the jury.” Trial counsel then responded, “[The State]
might have a point there,” and stopped asking questions about
the interrogation.
Thus, Trial counsel invited any error the trial court could
have made because not once did he argue to the court any legal
(continued…)

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20160794-CA 	13 	2020 UT App 98
Second, Defendant asserts that trial counsel was “ineffective for
failing to exclude [his] comment that Victim was straight and
that 	[Defendant] 	had 	‘a 	thing 	for 	straight 	guys.’” 	Third,
Defendant contends that trial counsel “was ineffective when he
failed to object to [Nurse’s] testimony that [Victim]’s purported
failure of memory was a common effect of trauma.”3
(…continued)
basis for the appropriateness of his line of questioning and, more
importantly for invited error purposes, his only response to the
State’s objections were “okay” and “[the State] might have a
point there.” These statements communicated to the court that
trial counsel believed the State’s position was legally correct and
led the court to whatever error the trial court could have made.
Because trial counsel invited the error, if any, we will review this
claim only for ineffective assistance of counsel.
3. Defendant also claims that “the cumulative effect of [the]
multiple errors was prejudicial,” “which requires us to apply the
standard of review applicable to each underlying claim of error.”
See Radman v. Flanders Corp., 2007 UT App 351, ¶ 4, 172 P.3d 668.
“A 	reviewing 	court 	will 	reverse 	a 	jury 	verdict 	under 	the
cumulative error doctrine only if the cumulative effect of the
several errors undermines confidence that a fair trial was had.”
State v. Killpack, 2008 UT 49, ¶ 56, 191 P.3d 17 (quotation
simplified), abrogated on other grounds as recognized by State v.
Lowther, 2017 UT 34, 398 P.3d 1032. Because we discern no error
that 	could 	have 	harmed 	Defendant, 	there 	is 	no 	error 	to
accumulate, and we decline to address this claim. See State v.
Martinez-Castellanos, 2018 UT 	46, ¶ 35, 428 P.3d 1038 (“The
cumulative error doctrine applies only to errors that could
conceivably harm a party in some way. Errors with no potential
for harm do not accumulate.”).

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ANALYSIS
The Trial Court’s Exclusion of Rule 412 Evidence
¶28 	Defendant 	contends 	that 	the 	trial 	court 	abused 	its
discretion when it excluded evidence of Victim’s prior sexual
behavior or predisposition, which was “critical to [his] defense.”4
4. The State argues that trial counsel invited error, if any, when
he “ended up agreeing with the State before the court ruled” and
that we can therefore review this issue only for ineffective
assistance of counsel. Specifically, the State contends that after
the court summarized the State’s argument, trial counsel “said
that he ‘understood the ground rules’ and had ‘no response.’”
The trial court then said, “Well, if that’s the case, then that’s the
ruling. And the ruling obviously is that that wouldn’t come in
unless and until that door’s opened either by [the State] or
[Victim].”
The State asserts that “[t]he court’s ruling shows that
counsel’s ‘no response’ statement led the trial court to believe
that defense counsel had no legally supportable opposition to
the State’s position.” We disagree. After trial counsel made his
argument, the State and the trial court discussed rule 412 at
length, with the court saying multiple times that the State’s
argument was “correct” and that the court “agreed” with the
State before trial counsel acquiesced in the court’s conclusions.
The only party that could have led the court to commit error in
this scenario was the State. Trial counsel had made his argument
and earlier had filed a motion to admit the evidence, claiming its
exclusion would “violate the Defendant’s constitutional rights to
confront and cross examine [Victim].” And by the time he said
that he “underst[oo]d the ground rules” and “had no response,”
it was clear that the court believed that any evidence of Victim’s
sexual past could come in only if Victim or the State opened the
door. By simply stating that he “underst[oo]d the ground rules”
(continued…)

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He claims that this ruling violated his Sixth Amendment right to
present 	a 	complete 	defense 	and 	to 	cross-examine 	Victim.
Specifically, he contends that this evidence was “critical” to his
defense because it would undermine Victim’s credibility, show
that Victim had “a motive to lie about consensual homosexual
activity,” and show that “a man who was sexually attracted to
other men would be more likely to give indications of consent to
sexual activity, even if he was too drunk to remember the
incident later.”
¶29 	Rule 412 of the Utah Rules of Evidence prohibits the
admission at trial of “evidence offered to prove that a victim
engaged in other sexual behavior” or “evidence offered to prove
a victim’s sexual predisposition.” Utah R. Evid. 412(a). Such
evidence is generally barred because “an alleged victim’s prior
sexual conduct is simply not relevant to any issue in [a] rape
prosecution including consent.” State v. Tarrats, 2005 UT 50, ¶ 21,
122 P.3d 581 (quotation simplified); see also State v. Johns, 615
P.2d 1260, 1263 (Utah 1980) (“[T]he fact a [victim] has consented
to sexual activity in the past under different circumstances and
(…continued)
and “had no response,” trial counsel was not “encourag[ing] the
trial court to make an erroneous ruling,” see McNeil, 2016 UT 3,
¶ 17, but was most likely acknowledging the court’s decision to
avoid antagonizing the court by making further argument, see
State v. Bird, 2012 UT App 239, ¶ 12, 286 P.3d 11 (“[F]utile
objections are not required to preserve issues for appeal.”), aff'd,
2015 	UT 	7, 	345 	P.3d 	1141. 	At 	most, 	trial 	counsel 	was
“affirmatively acquiescing in the court’s decision,” see State v.
Marquina, 2018 UT App 219, ¶ 24, 437 P.3d 628, cert. granted, 440
P.3d 691 (Utah 2019), which has been rejected by our supreme
court as a basis for invited error, see McNeil, 2016 UT 3, ¶¶ 18, 21.
Thus, there was no invited error in this regard, and we review
the issue as stated by Defendant.

State v. Nunez-Vasquez
20160794-CA 	16 	2020 UT App 98
with individuals other than 	the defendant has little if 	any
relevancy to the question of [his or] her consent in the situation
involved . . . .”). Even if the evidence is relevant, “it has an
unusual propensity to unfairly prejudice, inflame, or mislead the
jury and is likely to distort the jury’s deliberative process and
should 	therefore 	be 	excluded.” 	Tarrats, 	2005 	UT 	50, 	¶ 	21
(quotation simplified).
¶30 	But rule 412 provides an exception, among others, for the
admission 	of 	“evidence 	whose 	exclusion 	would 	violate 	the
defendant’s constitutional rights,” provided that “the evidence is
otherwise admissible under” the Utah Rules of Evidence. Utah
R. Evid. 412(b); see also State v. Thornton, 2017 UT 9, ¶ 74, 391
P.3d 1016 (“[W]here rules of evidence or procedure foreclose any
meaningful avenue for presenting a defendant’s fundamental
defense 	to 	charges 	against 	him, 	. 	. 	. 	[constitutional 	rights]
override rules of evidence or procedure.”); State v. Boyd, 2001 UT
30, ¶ 39, 25 P.3d 985 (“Evidence that fits the exception may still
be excluded if it does not satisfy requirements of the other
evidence rules . . . .” (quotation simplified)).
¶31 	The Sixth Amendment to the United States Constitution
guarantees a criminal defendant “the right to a speedy and
public trial,” “to be confronted with the witnesses against him,”
and “to have the Assistance of Counsel for his defence.” U.S.
Const. 	amend. 	VI. 	The 	United 	States 	Supreme 	Court 	has
interpreted these provisions to “encompass some form of ‘right
to present [a] defense.’” Thornton, 2017 UT 9, ¶ 74 (alteration in
original) (quoting Rock v. Arkansas, 483 U.S. 44, 48, 56 (1987)).
However, the “right to present a defense is far from absolute.”
Id. ¶ 76. Rather, a defendant is guaranteed “an opportunity for
effective 	cross-examination, 	not 	cross-examination 	that 	is
effective in whatever way, and to whatever extent, the defense
might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985).

State v. Nunez-Vasquez
20160794-CA 	17 	2020 UT App 98
¶32 	Evidentiary rulings will therefore violate a defendant’s
Sixth Amendment rights only if they “foreclose any meaningful
avenue for presenting a defendant’s fundamental defense to
charges against him.” Thornton, 2017 UT 9, ¶ 74. At a minimum
this requires a defendant to prove “that the evidence in question
is essential to the presentation of a defense.” Id. ¶ 78 (citing
United States v. Scheffer, 523 U.S. 303, 315 (1998)); see also Tarrats,
2005 UT 50, ¶ 36 (“Many evidentiary rules necessarily limit to
some degree a defendant’s ability to question witnesses and
introduce 	evidence. 	So 	long 	as 	impingements 	upon 	a
defendant’s constitutional rights pursuant to these evidentiary
rules are not arbitrary or disproportionate to the purposes they
are 	designed 	to 	serve, 	they 	are 	constitutional.” 	(quotation
simplified)).
¶33 	Defendant 	argues 	that 	evidence 	that 	Victim 	had
previously engaged in homosexual activity was essential to his
defense that Victim 	consented “because the State relied on
[Defendant]’s statement to police that [Victim] said he was
straight as well as [Victim]’s testimony that he did not remember
but 	was 	nevertheless 	confident 	that 	he 	would 	not 	have
consented to sex with [Defendant].” We disagree.
¶34 	First, the jury never heard from Victim about his sexual
orientation. During direct examination, Victim stated that he
“definitely would have never” flirted with Defendant because he
“did not do such behavior.” Then on cross-examination, in what
appears to be an effort on the part of trial counsel to get Victim
to open the door and definitively state that he was straight and
on that basis would not possibly have given his consent to
engage in sexual activity with Defendant, trial counsel asked
him if it was “true that he d[id]n’t remember what [he] said or
did with [Defendant] at any location that [they] were at that
evening.” Victim then responded that “[he] would know if [he]
would have given consent.”

State v. Nunez-Vasquez
20160794-CA 	18 	2020 UT App 98
¶35 	Victim’s statements, when read together, were neutral as
concerns his sexuality but were clear as to his lack of consent.
Victim’s testimony could be interpreted to describe a number of
concerns unrelated to Victim’s sexuality, like that he would not
have flirted with or consented to sexual activity with Defendant
because he did not find Defendant sexually attractive, did not
flirt or have sex with people he barely knew, was in a committed
relationship with someone else and would hence be unwilling to
flirt and engage in sexual activity with another, or made it a
point never to flirt or have sex while inebriated. Trial counsel did
not 	explore 	Victim’s 	statements 	further 	in 	an 	effort 	to
understand the basis of Victim’s testimony on consent. We are
therefore 	not 	persuaded 	that 	Victim’s 	testimony 	must 	be
interpreted to mean, as Defendant contends, that Victim knew
he did not consent to have sex with a man because he was not
gay. The door to that defense is one Defendant wanted to open
at trial, but we agree with the trial court that Victim’s testimony
did not open that door.
¶36 	Additionally, the State offered Defendant’s own words
that 	Victim 	identified 	as 	straight, 	along 	with 	Defendant’s
statements that it was a “challenge, getting a straight guy” to
have sex with him and just because “[they’re] straight doesn’t
mean that . . . they don’t want to [have sex]” to show Defendant’s
motive to sexually assault Victim—not to show the unlikelihood
that 	Victim 	would 	have 	consented. 	In 	other 	words, 	these
statements were elicited to show Defendant’s state of mind, not
Victim’s, and we fail to see how admission of the rule 412
evidence 	would 	be 	“essential 	to 	the 	presentation 	of
[Defendant’s] defense” on the issue of consent. State v. Thornton,
2017 UT 9, ¶ 78, 391 P.3d 1016.
¶37 	Defendant further asserts that Victim, as a gay or bisexual
man, “would be more likely to give indications of consent.”
Defendant also claims that the rule 412 evidence is critical
because 	when 	Victim 	“was 	blacked 	out 	from 	alcohol

State v. Nunez-Vasquez
20160794-CA 	19 	2020 UT App 98
consumption,” 	he 	could 	have 	“acted 	in 	a 	way 	that 	gave
[Defendant] no cause to question whether [Victim] was awake
and consenting.”5 We see this argument as essentially irrelevant
where sexuality was not presented as a basis for lack of consent.
Without 	Victim 	himself 	claiming 	that 	he 	was 	straight 	and
therefore would not consent to sexual activity with another man,
his “prior sexual conduct [was] simply not relevant to any issue
in the rape prosecution including consent,” see State v. Tarrats,
2005 UT 50, ¶ 21, 122 P.3d 581 (quotation simplified), and thus
was not “essential to the presentation of [Defendant’s] defense,”
see Thornton, 2017 UT 9, ¶ 78; see also People v. Hackett, 365
N.W.2d 120, 126 (Mich. 1984) (“[T]he fact that a person is a
homosexual, standing alone, has little or no logical relevance
between the excluded prior sexual acts evidence and the issues
of consent or credibility.”).
¶38 	Furthermore, 	Defendant’s 	argument 	that 	the 	rule 412
evidence was “otherwise admissible” under rule 608(c) of the
Utah Rules of Evidence as impeachment evidence is unavailing.
Victim did not testify at trial concerning his sexuality as a basis
for lack of consent. We therefore cannot see how purported
evidence of past homosexual behavior would demonstrate a
motive for Victim to misrepresent the facts of this case. See Utah
R. Evid. 608(c); cf. State v. Glodgett, 813 A.2d 444, 448 (N.H. 2002)
(“We are not persuaded that the mere existence of a [previous]
homosexual relationship would motivate the victim . . . to testify
falsely 	against 	the 	defendant.”). 	If 	anything, 	the 	purported
evidence would have shown the jury that in the past, Victim
willingly engaged in sexual interactions with other men and
thus the only problem he had with this sexual incident with
Defendant was that he did not consent to it—not that he was
5. It is, of course, a more likely inference that someone who is
“blacked out from alcohol consumption” is incapable of giving
consent to sex.

State v. Nunez-Vasquez
20160794-CA 	20 	2020 UT App 98
embarrassed by it, would immediately report it to the police, or
would lie about it. Thus, the evidence might well have bolstered
Victim’s account and therefore was neither appropriate under
rule 608(c) nor “essential to the presentation of [Defendant’s]
defense.” See Thornton, 2017 UT 9, ¶ 78.
¶39 	Additionally, 	the 	court’s 	evidentiary 	ruling 	did 	not
“foreclose any meaningful avenue” for Defendant to present a
“fundamental defense to [the] charges against him.” Id. ¶ 74.
During cross-examination of Victim, trial counsel was able to
elicit that Victim has “difficulty with [his] memory” in general
due to a motorcycle accident, was “blacked out” the night of the
incident due to voluntary alcohol consumption, and could not
remember many specifics from the night in question. This,
combined 	with 	Defendant’s 	detailed 	testimony 	about 	what
happened and that he believed the incident was consensual,
allowed Defendant to present his defense, particularly on the
issue 	of 	consent. 	Evidence 	of 	Victim’s 	prior 	sexual 	activity
would have done little to change the narrative or affect the
defense presented because the trial centered on consent (or the
lack thereof) and consenting to similar sexual activity in the past
with others is not evidence of consent on a different occasion. See
State v. Johns, 615 P.2d 1260, 1263 (Utah 1980); see also United
States v. Kasto, 584 F.2d 268, 271–72 (8th Cir. 1978) (“[E]vidence of
a rape victim’s . . . specific [sexual] acts with persons other than
the defendant, is ordinarily insufficiently probative either of [the
victim’s] general credibility as a witness or of [the victim’s]
consent . . . .”); State v. Superior Court, 545 P.2d 946, 952 (Ariz.
1976) (“The fact that a [person] consented to sexual intercourse
on one occasion is not substantial evidence [he or] she consented
on another, but in fact may indicate the contrary.”); State v.
Higgins, 821 A.2d 964, 971–72 (N.H. 2003) (“Each decision to
consent is a new act, a choice made on the circumstances
prevailing in the present, not governed by the past.” (quotation
simplified)).

State v. Nunez-Vasquez
20160794-CA 	21 	2020 UT App 98
¶40 	We therefore hold that the trial court correctly applied
rule 412 in light of Defendant’s constitutional rights and did not
exceed its discretion in excluding the evidence of Victim’s sexual
behavior. The court acknowledged that if Victim “said I am
absolutely 	a 	straight 	male” 	and 	“I 	would 	never 	consider
homosexual sex on any level,” then these types of statements
would allow Defendant to introduce evidence about Victim’s
previous sexual conduct. Conversely, the evidence would not
come in if Victim did not make statements like that. Absent
Victim definitively claiming at trial that he would not have
consented because he was not gay, his “sexual activity in the
past under different circumstances and with individuals other
than . . . [D]efendant has little if any relevancy to the question of
[his] consent in th[is] situation.” See Johns, 615 P.2d at 1263.6
6. Our analysis may well have resulted in a different conclusion
had Victim or the State made an explicit assertion at trial that
consent was lacking because Victim identified as straight. Courts
have generally been more open to admitting rule 412 evidence
when a complainant or the prosecution “uses sexual orientation
in a way that implies the impossibility of consent.” United States
v. Villanueva, No. NMCCA 201400212, 2015 WL 1305782, at *3
(N-M. Ct. Crim. App. Mar. 19, 2015); see also id. at *4 (“[The
victim] testified during the trial that he ‘was straight.’ This could
only have left the members [of the jury] with the impression
that, 	since 	[the 	victim] 	was 	not 	gay, 	he 	would 	not 	have
consented to the sodomy. The appellant’s inability to confront
and impeach him on this critical point severely impacted his
ability to present a defense.”). For example, in State v. Williams,
477 N.E.2d 221 (Ohio Ct. App. 1984), “the victim testified on
direct examination that she was a lesbian, that because of this
she had never and would never consent to sexual relations with
a 	man 	and 	that 	therefore 	she 	did 	not 	consent 	to 	sexual
intercourse with appellant.” Id. at 227 (quotation simplified). The
(continued…)

State v. Nunez-Vasquez
20160794-CA 	22 	2020 UT App 98
¶41 	Accordingly, Defendant cannot show “that the evidence
in question [was] essential to the presentation of a defense” and
should have been admitted. Thornton, 2017 UT 9, ¶ 78.
(…continued)
Ohio Court of Appeals observed that the prosecution relied on
the claims of the victim about her sexual orientation “as proof”
of her lack of consent. Id. “This testimony was elicited by the
prosecution 	on 	direct 	examination. 	The 	evidence 	is 	clearly
substantially material, relevant and probative as to the element
of force or threat of force in consummating the admitted sexual
activity.” Id. The court stated that the evidence offered by the
defendant “would tend to show that the victim was lying when
she said she was a lesbian and had never had consensual sexual
relations with any man,” and it therefore concluded that “[t]he
refusal to allow appellant to present evidence which is so highly
probative, relevant and material as to an element of the crime
violated his Sixth Amendment rights to confront the witnesses
against him.” Id. at 228. But see Minter v. Commonwealth, 415
S.W.3d 614, 619 (Ky. 2013) (“Appellant implies that because the
victim said that he was ‘straight,’ that is, he claimed he was not
predisposed toward gay sexual relations, evidence that he had
voluntarily engaged in other homosexual conduct acquired a
unique relevance. We disagree. There is no doubt that [rule 412]
operates to shield putative victims from disclosure of prior
sexual behaviors that have no relevance to the offense on trial
except to cast a negative light upon the alleged victim. The
purpose of the rule and the language of the rule allow for no
differentiation between heterosexual behavior and homosexual
behavior. Accordingly, the testimony was inadmissible under
[rule 412] because it is evidence of ‘other sexual behavior’ that is
offered to cast doubt on [the victim’s] testimony with evidence
of his alleged prior sexual behavior and his alleged sexual
predisposition.”).

State v. Nunez-Vasquez
20160794-CA 	23 	2020 UT App 98
Ineffective Assistance of Counsel Regarding Rule 412
Evidence
¶42 	Defendant contends that trial counsel rendered ineffective
assistance by failing to “support his rule 412 motion with a
detailed proffer.” Defendant also argues that trial counsel was
ineffective in failing to renew the rule 412 motion when Victim
stated at trial that he “definitely would have never” flirted with
Defendant, that he “did not do such behavior,” and that he
“would know if [he] would have given consent.” Assuming
without 	deciding 	that 	trial 	counsel 	was 	deficient 	for 	not
submitting a detailed proffer and not renewing the rule 412
motion at trial, we hold that Defendant cannot show under the
second prong of Strickland v. Washington, 466 U.S. 668 (1984), that
“there 	is 	a 	reasonable 	probability 	that, 	but 	for 	counsel’s
unprofessional errors, the result of the proceeding would have
been different,” id. at 694. We therefore decline to analyze
whether trial counsel’s performance was deficient. See Rhinehart
v. State, 2012 UT App 322, ¶ 9, 290 P.3d 921 (“We may choose not
to 	consider 	the 	adequacy 	of 	counsel’s 	performance 	if 	we
determine that any claimed error was not harmful.” (quotation
simplified)).
¶43 	The trial judge, who initially ruled on trial counsel’s rule
412 motion, presided over the rule 23B remand hearing. After
the remand hearing, at which two witnesses testified Victim had
previously engaged in homosexual conduct, the court found that
trial 	counsel 	“did 	not 	perform 	deficiently 	because 	a 	more
detailed proffer would not have changed [its] pre-trial ruling,”
that 	“reasonable 	counsel 	could 	decide 	that 	Victim’s 	trial
testimony did not open the door to the proposed impeachment,”
and that “there was no prejudice.” Thus, even if trial counsel had
provided a detailed proffer of the proposed testimony regarding
Victim’s prior sexual behavior to the court before trial, the court
would have denied the motion, and Defendant cannot show that
“there 	is 	reasonable 	probability 	that, 	but 	for 	counsel’s

State v. Nunez-Vasquez
20160794-CA 	24 	2020 UT App 98
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. Additionally, while
we are “free to make an independent determination of a trial
court’s [legal] conclusions,” State v. Kozlov, 2012 UT App 114,
¶ 29, 276 P.3d 1207 (quotation simplified), we agree with the trial
court that Defendant has not shown prejudice. We reach this
conclusion given the trial court’s determination that had trial
counsel renewed the rule 412 motion, the court would have
again rejected Defendant’s request to question Victim about his
prior sexual history or introduce evidence of any alleged sexual
conduct because Victim’s testimony on 	the central issue of
consent did not open that door.7 Thus, a determination that
“there 	is 	a 	reasonable 	probability 	that, 	but 	for 	counsel’s
unprofessional errors, the result of the proceeding would have
been different,” Strickland, 466 U.S. at 694, cannot follow given
that the trial court would not have found that the door was
opened and we would have affirmed that rationale on appeal, as
explained supra ¶¶ 33–41.
Jury Instructions
¶44 	Defendant next argues that the trial court “lacked the
discretion to leave out a jury instruction explaining the mistake-
7. We agree with the trial court’s assessment that counsel “could
have reasonably decided that Victim’s trial testimony did not
open the door” to the admission of evidence concerning Victim’s
sexuality because his answer, “I definitely would have never
done that,” “could reasonably be understood to refer to Victim’s
not flirting with [Defendant] particularly . . . not men generally.”
Given the trial court’s assessment, it is unlikely that the court
would have allowed the rule 412 evidence because the “door” to
consider Victim’s sexual behavior insofar as it concerned consent
was not opened by Victim.

State v. Nunez-Vasquez
20160794-CA 	25 	2020 UT App 98
of-fact 	defense” 	“because 	the 	mistake-of-fact 	defense 	had 	a
strong evidentiary basis.”
¶45 	Defendant 	was 	charged 	with 	forcible 	sodomy, 	which
required the State to prove that Defendant “engage[d] in any
sexual act . . . involving the genitals of one individual and the
mouth or anus of another individual . . . without the other’s
consent.” Utah Code Ann. § 76-5-403(1)–(2) (LexisNexis Supp.
2019). As the sodomy statute does not specify the requisite mens
rea for the offense, we must turn to Utah Code section 76-2-102,
which directs that “when the definition of the offense does not
specify a culpable mental state and the offense does not involve
strict liability, intent, knowledge, or recklessness shall suffice to
establish 	criminal 	responsibility.” 	Id. 	§ 	76-2-102 	(2017).
Recklessness, which was what the State argued Defendant‘s
actions at least amounted to, is when a person “is aware of but
consciously disregards a substantial and unjustifiable risk that
the circumstances exist or the result will occur. The risk must be
of such a nature and degree that its disregard constitutes a gross
deviation from the standard of care that an ordinary person
would exercise . . . .” Id. § 76-2-103(3).
¶46 	“A party is entitled to have the jury instructed on its
theory of the case if competent evidence is presented at trial to
support its theory, although a party is not entitled to have the
jury instructed with any particular wording.” State v. Marchet,
2012 UT App 197, ¶ 17, 284 P.3d 668 (quotation simplified). “As
long as the instructions, read as a whole, fairly instruct the jury
on 	applicable 	law, 	it 	is 	not 	error 	to 	refuse 	a 	particular
instruction.” Id. (quotation simplified). Furthermore, “[j]urors do
not sit in solitary isolation booths parsing instructions for subtle
shades of meaning in the same way that lawyers might.” Boyde v.
California, 494 U.S. 370, 380–81 (1990). Rather, “[d]ifferences
among [jurors] in interpretation of instructions may be thrashed
out 	in 	the 	deliberative 	process, 	with 	commonsense
understanding of the instructions in the light of all that has taken

State v. Nunez-Vasquez
20160794-CA 	26 	2020 UT App 98
place at the trial likely to prevail over technical hairsplitting.” Id.
at 381. The prejudice standard for giving an incorrect jury
instruction 	is 	prescribed 	by 	the 	Utah 	Rules 	of 	Criminal
Procedure, which provide that “[a]ny error, defect, irregularity
or variance which does not affect the substantial rights of a party
shall be disregarded.” Utah R. Crim. P. 30(a). Our supreme court
has held that this ordinarily requires a defendant to show that,
absent the error, there is “a reasonable likelihood of a more
favorable result for the defendant.” State v. Knight, 734 P.2d 913,
919 (Utah 1987) (quotation simplified).
¶47 	Defendant proposed three mistake-of-fact instructions, all
of which were rejected by the trial court. The first instruction
stated,
[I]t is an affirmative defense to a crime when a
person acts under ignorance or a mistake of fact—
here, 	a 	mistake 	of 	fact 	as 	to 	the 	existence 	of
consent.
. . . .
A mistake of fact defense as to a person’s
lack of consent to the sexual activity charged has
two components, one subjective, and one objective.
The 	subjective 	component 	asks 	whether 	the
defendant 	honestly 	and 	in 	good 	faith, 	albeit
mistakenly, 	believed 	that 	the 	other 	person
consented to the sexual intercourse or activity. The
objective component asks whether the defendant’s
mistake regarding consent was reasonable under
the circumstances.
¶48 	The second instruction explained,

State v. Nunez-Vasquez
20160794-CA 	27 	2020 UT App 98
As a general rule, if some evidence has been
presented by either the defense or the prosecution
that supports an “affirmative defense,” then the
State has the burden to prove beyond a reasonable
doubt that the defense does not apply.
In 	this 	trial, 	some 	evidence 	has 	been
presented to you regarding the affirmative defense
of “Mistake of Fact.” Under Utah law, it is an
affirmative defense to a crime that a person acts
under 	ignorance 	or 	mistake 	of 	fact—here, 	a
mistake of fact as to consent.
¶49 	Finally, the third instruction incorporated the first two
and instructed the jury, “In the event that you find [Victim] did
not consent, you must additionally find beyond a reasonable
doubt that the affirmative defense of ‘Mistake of Fact’ as to
consent does not apply.” It additionally stated that if “the State
has 	failed 	to 	disprove 	the 	affirmative 	defense 	beyond 	a
reasonable doubt, then you must find the defendant not guilty.”
¶50 	The instructions that were provided to the jury by the
court instead informed the jurors that to find Defendant guilty of
forcible sodomy, they must find beyond a reasonable doubt that
he “[i]ntentionally, knowingly, or recklessly committed a sexual
act involving any touching of the skin, however slight, of the
genitals of one person and the mouth or anus of another . . .
[w]ithout [Victim]’s consent” and that “[Defendant] acted with
intent, knowledge or recklessness that [Victim] did not consent.”
The court also instructed the jury that a person acts recklessly
when he “is aware of a substantial and unjustifiable risk that
certain 	circumstances 	exist 	relating 	to 	his 	. 	. 	. 	conduct,
consciously disregards the risk, and acts anyway” and that “[t]he
nature and extent of the risk must be of such a magnitude that
disregarding it is a gross deviation from what an ordinary

State v. Nunez-Vasquez
20160794-CA 	28 	2020 UT App 98
person would do in that situation.” Additionally, the jury was
instructed that the State
must 	prove 	beyond 	a 	reasonable 	doubt 	that
[Victim] 	did 	not 	consent 	to 	the 	alleged 	sexual
conduct. The alleged sexual conduct is without
consent of [Victim] under any, all, or a combination
of the following circumstances:
[Victim] expressed lack of consent through words
or conduct;
[Defendant] 	overcame 	[Victim] 	through
concealment or by the element of surprise;
[Defendant] 	knew 	[Victim] 	was 	unconscious,
unaware 	that 	the 	act 	was 	occurring, 	or 	was
physically unable to resist;
[Defendant] knew that as a result of mental illness
or defect, or for any other reason [Victim] was
incapable 	at 	the 	time 	of 	the 	act 	of 	either
understanding the nature of the act or of resisting
it.
¶51 	“We 	affirm 	the 	trial 	court’s 	denial 	of 	[Defendant’s]
requested 	mistake-of-fact 	instruction 	because 	the 	jury
instructions 	as 	a 	whole 	fairly 	instructed 	the 	jury 	on 	the
applicable law.” See State v. Marchet, 2012 UT App 197, ¶ 17, 284
P.3d 	668 	(quotation 	simplified). 	Read 	as 	a 	whole, 	the 	jury
instructions informed the jury that Defendant was guilty of
forcible sodomy if the State proved beyond a reasonable doubt
that Victim did not consent and that Defendant was at least
reckless in determining whether Victim consented. See State v.
Newton, 2020 UT 24, ¶ 34 (“In convicting [the defendant], the
jury must have found that [the victim] did not consent and, by

State v. Nunez-Vasquez
20160794-CA 	29 	2020 UT App 98
extension, 	must 	have 	concluded 	that 	[the 	defendant]
intentionally, knowingly, or recklessly had nonconsensual sexual
intercourse 	with 	[the 	victim].” 	(quotation 	simplified)). 	In
reaching its verdict, the jury was required to resolve Defendant’s
theory at trial that Victim actually consented or that Defendant
reasonably, 	but 	mistakenly, 	believed 	that 	Victim 	consented.
While the instructions did not include the phrase “mistake-of-
fact” as Defendant sought, there is no error by the trial court
because 	“the 	point 	[was] 	properly 	covered 	in 	the 	other
instructions.” See State v. Sessions, 645 P.2d 643, 647 (Utah 1982);
see also Marchet, 2012 UT App 197, ¶ 17 (“A party is not entitled
to 	have 	the 	jury 	instructed 	with 	any 	particular 	wording.”
(quotation simplified)).
¶52 	We therefore determine that the trial court did not abuse
its 	discretion 	in 	declining 	to 	give 	Defendant’s 	proffered
instructions because the court properly instructed the jury on the
applicable law. Furthermore, Defendant cannot show prejudice
because 	the 	jury 	was 	essentially 	instructed 	on 	everything
Defendant had requested, and therefore the result of the trial
would 	not 	have 	been 	different 	had 	Defendant’s 	preferred
instructions been given to the jury. Indeed, the evidence shows
only that Victim was either unconscious or initiated the sexual
encounter. “As a result, the jury could not easily have thought
that the truth fell somewhere in between the two accounts.”
Newton, 2020 UT 24, ¶ 34 (quotation simplified).
Additional Ineffective Assistance of Counsel Claims
A. 	Trial Counsel’s Alleged Ineffective Assistance for Failing
to Correctly Argue the Rules of Evidence
¶53 	Defendant asserts that trial counsel was ineffective for not
“correctly argu[ing] the rules of evidence” in attempting to
admit 	evidence 	of 	the 	circumstances 	of 	Defendant’s

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20160794-CA 	30 	2020 UT App 98
interrogation, 	which 	the 	trial 	court 	prohibited. 	(Quotation
simplified.)
¶54 	Defendant 	must 	show 	that 	“there 	is 	a 	reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland v.
Washington, 	466 	U.S. 	668, 	694 	(1984). 	Assuming, 	without
deciding, 	that 	trial 	counsel 	was 	deficient 	for 	not 	correctly
arguing the rules of evidence in attempting to admit evidence of
the circumstances of Defendant’s interrogation, we hold that
trial counsel did not 	provide ineffective assistance, because
Defendant cannot show prejudice.
¶55 	Defendant argues that if he “had been allowed to testify
about the influence of exhaustion, dehydration, alcohol, [and]
nerves . . . he could have rehabilitated his credibility for the
jury.” He also asserts that “he could have rehabilitated his
credibility” 	if 	he 	had 	been 	allowed 	to 	testify 	about
“minimization techniques on his responses during custodial
interrogation.” While the court did prohibit trial counsel from
exploring the interrogation circumstances at the level that trial
counsel 	wished, 	much 	evidence 	was 	admitted 	about 	those
circumstances. 	On 	cross-examination, 	the 	officer 	said 	that
Defendant was in a holding cell for three hours, which the officer
admitted could make someone hesitant to talk. The jury also
heard that Defendant was in handcuffs, the officers were in
uniform, Defendant was “mirandized,” and Defendant was not
comfortable talking to these officers. Furthermore, Defendant’s
testimony that he was not offered water or something to eat “for
a while” and that he “didn’t know what was going on” and
“didn’t want to talk to” the interrogating officer was heard by
the jury and not stricken from the record. On cross-examination,
Defendant stated that the prosecutor was mischaracterizing his
statements during the interrogation and that the 	State was
“making it sound like it’s some sort of a game, and it’s not.” And
he “was trying to explain to [the officer] how it could be possible

State v. Nunez-Vasquez
20160794-CA 	31 	2020 UT App 98
for a man who identified as straight to have sex with a gay man.
And that was the best possible way that [Defendant] could do
that at that point, in the state that [he] was.” The jury also saw
the entire video of the interrogation and heard Defendant say he
“d[id]n’t 	feel 	comfortable 	answering 	questions,” 	was
“exhausted,” and was “not sober.” The only evidence stricken
was 	Defendant’s 	answer 	to 	trial 	counsel’s 	question 	about
whether 	he 	spoke 	to 	the 	officer 	voluntarily, 	to 	which 	he
responded, “I think I was a little bit confused.” Additionally,
during closing argument trial counsel stated,
Is [Defendant] justifiably afraid of talking to the
police? Does [Defendant] want to go talking about
his laundry, airing his laundry in front of the
police. Would you? He knows something’s wrong.
He knows [Victim] has called the police. But he’s in
handcuffs and these people are in uniform and
they want to talk to him. And so when he finally
gets to a point where he’s ready to talk, . . . he’s got
plenty to say about what happened. And I think
that videotape is probably your best guide to what
actually transpired.
¶56 	Based on all the evidence that the jury actually heard
about Defendant’s condition during his interrogation, we fail to
see how Defendant was prejudiced by trial counsel choosing not
to argue the rules of evidence to admit more such evidence. The
jury clearly heard what state Defendant was in, and Defendant
has not demonstrated how the evidence he claims he would
have 	presented 	would 	have 	altered 	the 	evidentiary 	picture
already before the jury or led the jury to a different conclusion.
Consequently, there is not a “reasonable probability” that had
trial counsel argued to admit more such evidence, the result
would have been more favorable to him. See Strickland, 466 U.S.
at 694.

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B. 	Trial Counsel’s Alleged Ineffective Assistance for Failing
to Exclude Defendant’s Statement
¶57 	Defendant argues that trial counsel was “ineffective for
failing to exclude [his] comment that [Victim] was straight and
that [Defendant] had ‘a thing for straight guys.’” Defendant
contends that “[Trial] Counsel should have moved to exclude
[Defendant]’s misleading and unfairly prejudicial statements
under rule 403, especially in light of the trial court’s ruling
that . . . 	the 	circumstances 	of 	the 	police 	interview 	were 	not
[admissible] and the court’s ruling [that] the contextualizing
details regarding [Victim]’s sexuality were inadmissible.”
¶58 	Under 	rule 	403, 	a 	trial 	court 	“may 	exclude 	relevant
evidence if its probative value is substantially outweighed by a
danger 	of 	one 	or 	more 	of 	the 	following: 	unfair 	prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Utah R.
Evid. 403. This rule generally takes the form of a two-part test.
See R. Collin Mangrum & Dee Benson, Mangrum & Benson on
Utah Evidence 403 (2019–2020 ed.). The first step is to identify the
probative value of the evidence. “Probative value is a relative
concept, depending upon measuring the quality of the proof of
the contested fact against the importance of the issue in relation
to the legal issues of the case.” Id. If “the relative need for the
evidence [is] critical . . . , the court is less likely to exclude [it]
under rule 403.” Id. The second step is to assess the unfair
prejudice that may result from the evidence. “Unfair prejudice
means an undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one.”
State v. Jaimez, 817 P.2d 822, 825 (Utah Ct. App. 1991) (quotation
simplified). “[I]n the usual case, the presumption is in favor of
admissibility.” State v. Dibello, 780 P.2d 1221, 1229 (Utah 1989).
¶59 	Defendant claims that even in context his statements had
“low probative value.” We disagree. The statements were highly

State v. Nunez-Vasquez
20160794-CA 	33 	2020 UT App 98
probative. Defendant’s statements that Victim was straight and
that it was a “challenge, getting a straight guy” to have sex with
him and just because “[they’re] straight doesn’t mean that . . .
they don’t want to [have sex],” are highly probative to show
Defendant’s motive to have sex with Victim and whether he was
at 	least 	reckless 	regarding 	Victim’s 	consent. 	Defendant’s
statements were crucial to the State’s case and went directly to
Defendant’s state of mind, which must be proven beyond a
reasonable doubt. Such evidence—a defendant’s own words—is
clearly quite probative.
¶60 	Defendant also alleges that he “was unable to explain
[the] context” of his police interrogation and that the statements
thus “carried a serious danger of unfair prejudice because,
absent that context, they implied both that [Victim] would not
have consented because he was straight and that [Defendant]
considered sex with a non-consenting partner a challenge.” Rule
403 	does 	not 	prohibit 	prejudicial 	evidence—only 	unfairly
prejudicial evidence. Relevant evidence against a defendant is
invariably prejudicial in that it can lead a jury to convict. The
true marker is if it is unfairly prejudicial. See State v. Wilson, 2020
UT App 30, ¶¶ 30–31, 461 P.3d 1124 (explaining that probative
evidence is prejudicial because it “tends to affect the outcome,”
but rule 403 excludes unfairly prejudicial evidence and not
merely 	prejudicial 	evidence). 	Defendant’s 	statements 	were
clearly prejudicial as the jury heard directly from Defendant that
it was a “challenge, getting a straight guy” and that Victim was,
in Defendant’s estimation at least, straight. But it was not unfairly
prejudicial as the jury was able to watch the interrogation and
hear contextual evidence from Defendant and the interrogating
officer about the interview. See supra ¶ 55. Furthermore, Victim’s
own testimony left open the possibility that Victim could have
consented to sex with another man at a different time. See supra
¶ 35. Neither the State nor Victim directly stated that because
Victim was straight, he would not have consented. In light of

State v. Nunez-Vasquez
20160794-CA 	34 	2020 UT App 98
Victim’s testimony and the evidence that the jury was able to
analyze, Defendant’s own words were not unfairly prejudicial.
¶61 	Trial counsel was therefore not deficient in failing to
move to exclude Defendant’s own words because Defendant
cannot 	show 	that 	it 	was 	unreasonable 	for 	counsel 	to 	have
concluded that the statements were inadmissible. See State v.
Scott, 2020 UT 13, ¶ 36, 462 P.3d 350 (stating that the “ultimate
question” 	for 	deficient 	performance 	“is 	always 	whether,
considering all the circumstances, counsel’s acts or omissions
were objectively unreasonable”). On the contrary, given the
highly 	probative 	nature 	of 	the 	evidence, 	which 	was 	not
significantly outweighed by any potential for unfair prejudice,
any 	objectively 	competent 	attorney 	would 	recognize 	that 	a
motion to exclude under rule 403 would have been rejected by
the trial court. And the “[f]ailure to raise futile objections does
not constitute ineffective assistance of counsel.” State v. Kelley,
2000 UT 41, ¶ 26, 1 P.3d 546.
C. 	Trial Counsel’s Alleged Ineffective Assistance for Failing
to Object to Nurse’s Testimony
¶62 	Defendant asserts that trial counsel “was ineffective when
he failed to object to [Nurse’s] testimony that Victim’s purported
failure of memory was a common effect of trauma,” because the
testimony “falls under Utah Rule of Evidence 403’s bar on
evidence 	when 	its 	potential 	for 	prejudice 	substantially
outweighs its probative value.”
¶63 	Nurse testified that she was not concerned by Victim’s
lack of memory of the sexual assault, opining that “[i]t’s very
common that either due to alcohol, drugs, or just the traumatic
experience, a lot of people will not have any real recollection or
they don’t know a lot of detail about what happened. It’s just
part of trauma.” She then stated that “just the fact that [Victim]
said he had several drinks and he wasn’t sure what was in

State v. Nunez-Vasquez
20160794-CA 	35 	2020 UT App 98
them” could explain why Victim could not remember the event.
And she added that his memory issues could have resulted from
“just alcohol consumption.”
¶64 	Relying on State v. Jones, 2015 UT 19, 345 P.3d 1195,
Defendant contends that Nurse’s testimony “should have drawn
objection” 	from 	trial 	counsel 	because 	“Utah 	courts 	have
‘condemned 	anecdotal 	statistical 	evidence 	when 	it 	concerns
matters not susceptible to quantitative analysis.’” (Quoting id.
¶ 50.) In support, Defendant asserts that this case is similar to
State v. Rammel, 721 P.2d 498 (Utah 1986), and State v. Iorg, 801
P.2d 938 (Utah Ct. App. 1990), where testimony was found to be
improper because it concerned the veracity of another witness.
¶65 	In Rammel, a detective testified that when suspects are
first interrogated by police, “no criminal suspect ever admitted
‘right off the bat’ to committing a crime” and he did not think it
was 	“unusual” 	for 	the 	witness 	to 	lie 	when 	he 	was 	first
interrogated. 	721 	P.2d 	at 	500. 	The 	main 	problem 	the 	Utah
Supreme Court found with the testimony was that the trial court
admitted the detective’s testimony because he “was an expert
apparently qualified to testify on [the witness’s] capacity for
telling the truth.” Id. The State “attempted to establish, in effect,
that there was a high statistical probability that [the witness]
lied,” which was improper because it “invite[d] the jury to focus
upon a seemingly scientific, numerical conclusion rather than to
analyze the evidence before it and decide where truth lies.” Id. at
501. In Iorg, a detective testified that late reporting by a child
victim in sexual abuse cases “does not mean a victim is not
telling the truth.” 801 P.2d at 941. This court determined that the
“testimony had the same potential for prejudice as the testimony
condemned in Rammel” and adjudged it improper. Id.
¶66 	This case is distinguishable from Rammel and Iorg. In
those cases, the problem with the testimony was that it focused
directly on the veracity of another witness’s testimony. In Iorg,

State v. Nunez-Vasquez
20160794-CA 	36 	2020 UT App 98
the detective testified about whether the witness “truthfully
reported” a sexual assault and that “late reporting does not
mean a victim is not telling the truth.” Id. In Rammel, the
detective testified directly on the witness’s “capacity for telling
the truth.” 721 P.2d at 500. In the present case, Nurse did not
testify as to whether Victim was telling the truth or whether he
was “statistically more likely to be a victim of the charged
crime,” as Defendant asserts. She simply provided anecdotal
testimony, based on her general experience, as to why Victim
may have forgotten major portions of the sexual assault. This
was not improper because she did not comment on Victim’s
veracity. See State v. Bair, 2012 UT App 106, ¶ 47 n.10, 275 P.3d
1050 (holding a detective’s testimony was not analogous to that
found improper in Iorg because he “did not directly comment on
[two 	witnesses’] 	veracity, 	or 	use 	his 	‘anecdotal 	statistical’
experience . . . to otherwise directly opine on [the witnesses’]
veracity”). 	Thus, 	this 	testimony 	did 	not 	unfairly 	prejudice
Defendant and did not violate rule 403, because Nurse did not
opine as to the veracity of Victim’s testimony. Her testimony
about why Victim would perhaps not remember the event is
probative because it may well help the jury understand how
Victim could have forgotten much about the sexual assault. It is
a far cry from Defendant’s claim that “[t]he jury could have
adopted the judgment of the expert, necessarily requiring it to
reject the evidence that [Victim] was testifying untruthfully.”
¶67 	Because Nurse’s testimony did not violate rule 403 or
appellate precedent, trial counsel could not be deficient for
failing to make a fruitless objection. See State v. Kelley, 2000 UT
41, ¶ 26, 1 P.3d 546.
CONCLUSION
¶68 	We 	conclude 	that 	the 	trial 	court 	did 	not 	abuse 	its
discretion, 	and 	therefore 	did 	not 	violate 	Defendant’s

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20160794-CA 	37 	2020 UT App 98
constitutional rights, by excluding evidence of Victim’s past
sexual behavior. We also hold that the trial court did not abuse
its discretion in declining to give Defendant’s requested mistake-
of-fact jury instructions, because the instructions that were given
properly stated the law. Furthermore, we conclude that trial
counsel was not constitutionally ineffective for failing to support
his rule 412 motion with a detailed proffer, for failing to renew
the rule 412 motion in response to Victim’s testimony, for not
arguing the rules of evidence more fully to admit more context
about 	Defendant’s 	interrogation, 	for 	failing 	to 	exclude
Defendant’s own words from his interrogation, or for failing to
object to Nurse’s testimony.
¶69 	Affirmed.