State v. Marchet

IN THE UTAH COURT OF APPEALS

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State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20090349‐CA
)
v. ) FILED
) (July 19, 2012)
Azlen Adieu Farquiot Marchet, )
) 2012 UT App 197
Defendant and Appellant. )

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Third District, Salt Lake Department, 071905648
The Honorable Vernice Trease

Attorneys: Herschel Bullen, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

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Before Judges Orme, Davis, and Roth.

DAVIS, Judge:

¶1 Azlen Adieu Farquiot Marchet appeals from a conviction for rape, a first degree
felony, see Utah Code Ann. § 76‐5‐402 (2008).1 We affirm.

1
Because the portions of the Utah Code relevant to this opinion have not changed
from the version of the code in effect at the time of the incident at issue, we cite the
current version of the Utah Code for the convenience of the reader.
BACKGROUND

¶2 M.P. met Marchet as she and a friend were sitting outside a dance club around
12:30 or 1:00 a.m. on July 1, 2004.2 Marchet, who is between six feet six inches and six
feet eight inches tall and at the time weighed around 275 pounds, introduced himself as
Cody and invited M.P., who is around five feet six inches tall and at the time weighed
around 135 pounds, and her friend to watch a movie at his home. The women declined.
Marchet remained “[v]ery persistent” in his request that they watch a movie at his
house and “[w]ouldn’t leave it alone. [He j]ust kept asking” and “wasn’t going to take
no for an answer.” M.P. finally agreed to his invitation but “told him numerous times”
that if he was “looking for action, [he had] the wrong girl.” Marchet “reassure[d M.P.]
. . . that that’s not what was going to happen.”

¶3 Once at Marchet’s condominium, M.P. set her purse and phone on the first‐floor
coffee table. Marchet led M.P. upstairs to his bedroom, indicating that that was where
they would watch a movie, and then went into the attached bathroom to change his
clothes without shutting the door. He lay down on the bed, wearing only silk pajama
bottoms, and asked M.P. to cuddle with him. She declined, but Marchet persisted until
she finally gave in and leaned stiffly toward him. Marchet then attempted to unbutton
M.P.’s pants. M.P. repeatedly asked him to stop, and Marchet’s actions became “more
forceful and more aggressive.” Marchet pulled down M.P.’s pants, exposing her rear
end, and penetrated her vaginally while positioned behind her. Realizing that Marchet
“wasn’t going to stop,” M.P. asked him to wear a condom to at least ease her concerns
about contracting a disease or getting pregnant. Marchet complied, leaving M.P. alone
in his bedroom for a few minutes while he went downstairs to get a condom. M.P.
testified that she did not attempt to flee at that point because she did not believe she
had enough time to “pull [her] pants up, get out of his room, go down the stairs, across
the living room,” get her purse and keys from the coffee table, go “down three flights of
stairs and cross the parking lot” to her car, as well as “get past a 275‐pound man.”
Marchet returned with a condom before M.P. could even finish buttoning her pants and
penetrated her a second time, also from behind. Then, Marchet digitally penetrated her
to retrieve the condom, which had fallen off. When Marchet finished, M.P. was shaking

2
“When reviewing a jury verdict, we examine the evidence and all reasonable
inferences in a light most favorable to the verdict, reciting the facts accordingly.” State
v. Heaps, 2000 UT 5, ¶ 2, 999 P.2d 565.

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from pain and distress, but she led Marchet to believe she was just cold. Marchet forced
her to cuddle again and then proceeded to penetrate her for the fourth and final time.

¶4 M.P. cried after the last penetration and lied and told Marchet she was crying
because she had not had sex since her husband had died a few years before. She
testified that she “was in survivor mode” and “didn’t want him to . . . think [she] was
going to go to the police,” fearing that giving him that impression would jeopardize any
likelihood that she would “get out of [there] alive” and return to her children. After the
last penetration, they went downstairs and had a personal conversation for twenty to
thirty minutes because M.P. believed she had “to make this guy think that [she was] not
going to the police.” M.P. gathered her purse and commented that her cell phone was
not on the coffee table where she had left it, at which point Marchet retrieved it from
behind a pillow on the couch. Marchet then walked M.P. to the door and allowed her to
leave without further incident.

¶5 In support of the charges for M.P.’s rape, the State was permitted to admit
testimony of two other women who claimed that they were also raped by Marchet. The
trial court determined that the witnesses’ testimony was probative of Marchet’s “intent,
consent or lack thereof, plan or specific scheme and lack of mistake or accident.” After
the first of these witnesses (Witness) testified about her experience of being raped by
Marchet, which she delayed reporting for two years, defense counsel attempted to
discredit her, asking, “And then you saw him on a number of occasions after that,
didn’t you?” Witness responded simply, stating, “A few times, yes.” In response to
that exchange, the State was permitted to elicit testimony from Witness elaborating on
her subsequent interactions with Marchet. Witness clarified that she had seen Marchet
out at a club a couple of times after the incident, did not interact with him, and would
leave after seeing him there. On one occasion, however, Witness interrupted a
conversation Marchet was having with some other girls to warn them that they
“probably don’t want to talk to him” because “he’s a rapist.” Witness testified that she
then walked away and Marchet followed her and threatened her, saying, “‘You better
F’ing watch your back.’” She saw Marchet one more time at a club after that incident.
This time, Witness told one of her male friends who was at the club with her that
Marchet had raped her. Her male friend approached Marchet, it appeared a fight was
going to break out, and Witness left the club with a female friend. Marchet came
running up to Witness, knocked Witness and her female friend to the ground, and
proceeded to kick the female friend in the ribs. Witness testified that as she attempted to

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help her friend, Marchet looked at Witness and said, “‘I’m going to F’ing kill you,’”
grabbed a glass beer bottle, and smashed it over Witness’s head. Witness received six
stitches at the hospital and at that point reported her rape by Marchet to the police.3

¶6 Marchet also testified, explaining that he believed his encounters with M.P. and
the two witnesses were entirely consensual, that M.P.’s account was not accurate, that
M.P. participated in the intercourse, did not say no, and expressed hesitation only about
having a “one‐night stand.” Marchet described M.P.’s attitude as having changed while
the two were chatting after intercourse once she realized that Marchet knew her friend
Miguel, whom Marchet believed was her boyfriend.

¶7 At the close of trial, Marchet requested an ignorance or mistake‐of‐fact jury
instruction to support his defense that he believed M.P. consented. The trial court
denied his proposed instruction, ruling that there was no basis for it in the evidence
presented. The jury subsequently found Marchet guilty of raping M.P.

ISSUES AND STANDARDS OF REVIEW

¶8 Marchet appeals, arguing that the trial court erred in admitting evidence of the
assault against Witness. “We review a trial court’s decision to admit evidence under
rule 404(b) [of the Utah Rules of Evidence] for an abuse of discretion.” State v. Ferguson,
2011 UT App 77, ¶ 10, 250 P.3d 89, cert. denied, 262 P.3d 1187 (Utah 2011).

¶9 Marchet also argues that his trial counsel provided ineffective assistance in
opening the door to the assault evidence. “Where, as here, a claim of ineffective
assistance of counsel is raised for the first time on appeal without a prior evidentiary
hearing, it presents a question of law.” State v. Bryant, 965 P.2d 539, 542 (Utah Ct. App.
1998).

3
For simplicity, we refer to Witness’s testimony of the assault with a beer bottle
and the surrounding circumstances as the “assault evidence.”

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¶10 Last, Marchet argues that the trial court’s refusal to give Marchet’s requested jury
instruction on ignorance or mistake constitutes reversible error.4 “Whether the trial
court’s refusal to give a proposed jury instruction constitutes error is a question of law,
which we review for correctness.” State v. Hamilton, 827 P.2d 232, 238 (Utah 1992).

ANALYSIS

I. Assault Evidence

¶11 Marchet argues that the assault evidence “was highly inflammatory and
prejudicial, not probative of any necessary element of the alleged crime against M.P.,
and suggest[s] a decision on . . . an improper basis (hatred, contempt, retribution or
horror),” in contravention of rules 402, 403, and 404(b) of the Utah Rules of Evidence.
See generally Utah R. Evid. 402 (“Irrelevant evidence is not admissible.”); id. R. 403 (“The
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.”); id. R. 404(b) (excluding evidence of prior crimes, wrongs, or bad acts except
for noncharacter “purpose[s], such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident”). Marchet contends
that “the volatility inherent in rape cases” rendered the trial court’s error in admitting
the assault evidence unfairly prejudicial because “[n]o rational juror could help but be

4
Marchet presents a fourth argument, challenging in conclusory fashion the trial
court’s admission of the two witnesses’ testimony about prior sexual encounters.
Marchet admits that this argument “is advanced in the interest of challenging existing
law and preserving this issue for such future proceedings as may occur.” The “existing
law” he seeks to challenge is from State v. Marchet (Marchet I), 2009 UT App 262, 219
P.3d 75, in which Marchet was convicted for the rape of Witness, see id. ¶¶ 1‐2. We
decline this invitation to revisit our earlier decision in Marchet I. See generally State v.
Tenorio, 2007 UT App 92, ¶ 9, 156 P.3d 854 (“[A] court will overrule its own precedent in
the limited circumstances where it is clearly convinced that the rule was originally
erroneous or is no longer sound because of changing conditions and that more good
than harm will come by departing from precedent . . . .” (internal quotation marks
omitted)).

20090349‐CA 5
impressed after hearing such evidence, that Marchet must simply be a bad man.” We
disagree.

¶12 Assuming, without deciding, that the trial court erroneously admitted the assault
evidence, we do not believe that the error warrants reversal of the jury verdict. “[We]
will not overturn a jury verdict for the admission of improper evidence if the admission
of the evidence did not reasonably [a]ffect the likelihood of a different verdict.” State v.
Johnson, 2007 UT App 184, ¶ 34, 163 P.3d 695 (alterations in original) (internal quotation
marks omitted).

¶13 Here, the issue at trial essentially came down to whether M.P. consented to
having intercourse with Marchet, not whether Marchet believed she consented. M.P.
testified that she did not consent but eventually stopped protesting out of fear for her
own safety given Marchet’s size and because she is a widow with children at home.
M.P. claims that she shared personal details of her life with Marchet after the rape as a
means of quelling any hesitation he may have had about letting her go. Marchet
testified that he believed M.P. had consented. Thus, to bolster M.P.’s credibility, the
State introduced the testimony of the two witnesses who claimed they were also raped
by Marchet in strikingly similar fashions. Testimony of these similarities was important
to suggest “(1) that Marchet intended to rape [M.P.]; (2) that he had a specific plan,
scheme, or modus operandi; (3) that his actions were not the result of a mistake or
accident; and (4) that [M.P.] did not consent.” Marchet I, 2009 UT App 262, ¶ 31, 219
P.3d 75; see also State v. Nelson‐Waggoner, 2000 UT 59, ¶¶ 24‐25, 6 P.3d 1120 (explaining
that bad acts evidence may be admitted “for the noncharacter purpose of proving the
element of lack of consent in certain rape trials[,] . . . especially . . . when a defendant
allegedly obviates the victim’s consent in a strikingly similar manner in several alleged
rapes,” and that such modus operandi evidence may “la[y] out a pattern of behavior . . .
consistent with the pattern of behavior in which [the defendant] engaged with [the
victim]” (citation omitted)). The assault evidence was introduced to bolster Witness’s
credibility after defense counsel asked Witness a question that insinuated that she and
Marchet had a friendly relationship after Witness’s claimed rape. The assault evidence,
which is only tangentially related to the ultimate issue of whether M.P. consented,
explained the actual contexts in which Witness had seen Marchet after the rape and
explained why she ultimately reported the rape.

¶14 The potential harmful import of the assault evidence was minimized by defense
counsel’s closing argument in which he suggested that Witness’s delayed report of the

20090349‐CA 6
rape demonstrated that she was not actually raped and that she instead made a false
accusation in retaliation for the assault and for feeling “scorned,” “used, degraded, . . .
dirty,” and humiliated for having made the decision to have sex with Marchet.
Additionally, jury instruction thirteen, although primarily aimed at instructing the jury
in how to evaluate the two witnesses’ testimonies admitted under rule 404(b), also
reduced any harmful effect the admission of the assault evidence may have had. The
instruction stated,

Evidence of other crimes, wrongs or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith. . . . You may consider the testimony
of [the two witnesses] only for the purpose of deciding (1)
whether or not the defendant intended to rape [M.P.]; (2)
whether or not he had a plan, scheme, or other modus
operandi with regard to [M.P.]; or (3) whether or not [M.P.]
consented to the sexual intercourse.

Thus, any prejudicial effect the assault evidence may have had was tempered by this
instruction and the statements in defense counsel’s closing argument, and was
otherwise overshadowed by all of the other evidence admitted that supports the jury’s
finding that M.P. did not consent. See Johnson, 2007 UT App 184, ¶ 34.

II. Ineffective Assistance of Counsel

¶15 Next, Marchet argues that his trial counsel was ineffective for asking Witness the
question that “opened the door” for the State to elicit the assault evidence testimony.
To prove ineffective assistance, Marchet must “demonstrate that counsel’s performance
was deficient, in that it fell below an objective standard of reasonable professional
judgment,” and “that counsel’s deficient performance was prejudicial—i.e., that it
affected the outcome of the case.” State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing
Strickland v. Washington, 466 U.S. 668, 687‐88 (1984)). To succeed on an ineffectiveness
claim, Marchet must demonstrate both that trial counsel was deficient and that
counsel’s deficiency was prejudicial; failure on either prong defeats his claim. See State
v. Bair, 2012 UT App 106, ¶ 49, 275 P.3d 1050 (“[B]ecause both deficiency and prejudice
must be shown, a reviewing court can dispose of an ineffectiveness claim on either
ground.” (internal quotation marks omitted)). Consequently, because we have already

20090349‐CA 7
determined that the admission of the assault evidence was harmless, Marchet cannot
prove that trial counsel’s performance, even if deficient, was prejudicial.

III. Jury Instruction

¶16 Last, Marchet argues that the trial court erroneously rejected his request for a
jury instruction on ignorance or mistake. The trial court based its denial of Marchet’s
requested instruction on its determination that “there [was] not . . . sufficient evidence
presented during the trial to merit such an instruction.” Marchet also contends that the
instructions given, in particular jury instruction sixteen, “did not require the jury to find
any mental state on his part with regard to [M.P.]’s consent or lack thereof[ b]ecause the
jury was never informed of the State’s burden to establish Marchet’s mens rea with
regard to consent.”

¶17 We affirm the trial court’s denial of Marchet’s requested mistake‐of‐fact
instruction because “the jury instructions as a whole fairly instruct[ed] the jury on the
applicable law.” See Normandeau v. Hanson Equip., Inc., 2007 UT App 382, ¶ 16, 174
P.3d 1 (internal quotation marks omitted) (“[R]eversible error does not arise merely
because one jury instruction, standing alone, is not as accurate as it might have been.”),
rev’d on other grounds, 2009 UT 44, 215 P.3d 152; see also Okelberry v. West Daniels Land
Assʹn, 2005 UT App 327, ¶ 11, 120 P.3d 34 (“It is well established that we may affirm the
judgment appealed from if it is sustainable on any legal ground or theory apparent on
the record, even though such ground or theory differs from that stated by the trial court
to be the basis of its ruling or action . . . .” (internal quotation marks omitted)). “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.” Normandeau, 2007 UT App 382, ¶ 16.
Thus, “[a]s 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. Furthermore,
“[a]lthough a criminal defendant is entitled to have the jury instructed on his theory of
the crime if there is any basis in the evidence to support that theory, jury instructions
should not incorrectly or misleadingly state the law.” State v. Larsen, 828 P.2d 487, 495
(Utah Ct. App. 1992), affʹd, 865 P.2d 1355 (Utah 1993).

¶18 Marchet’s requested jury instruction stated, “You shall find the defendant not
guilty if you believe from the evidence that the defendant was ignorant or mistaken in
his belief that [M.P.] consented to sexual intercourse,” and cited Utah Code section 76‐2‐

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304(1), see Utah Code Ann. § 76‐2‐304(1) (2008) (“Unless otherwise provided, ignorance
or mistake of fact which disproves the culpable mental state is a defense to any
prosecution for that crime.”). Instruction sixteen states,

Before you can convict the defendant, Azlen Marchet, of the
offense of Rape, . . . you must find from all of the evidence
and beyond a reasonable doubt each and every one of the
following elements of that offense:

1 That the defendant, Azlen Marchet, had sexual
intercourse with [M.P.]; and

2 That said act of intercourse was without the consent
of [M.P.]; and

3 That the defendant acted intentionally or
knowingly or recklessly.

The trial court also gave the jury instructions that further explained consent, reasonable
doubt, and the three enumerated mental states.

¶19 “Contrary to Marchet’s assertions, Instruction [sixteen] accurately identified each
element of the crime of rape and correctly stated the applicable mental state.” See
Marchet I, 2009 UT App 262, ¶ 22, 219 P.3d 75 (involving a jury instruction nearly
identical to instruction sixteen given in this case). The other instructions given to the
jury indicated that the State “has the burden of proving the defendant guilty beyond a
reasonable doubt” and elaborated that this burden includes the burden of “prov[ing]
the existence of the required mental state beyond a reasonable doubt.” Read as a whole,
the jury instructions “communicated to the jury that Marchet was guilty of rape not
simply if he knowingly, intentionally, or recklessly had sexual intercourse with [M.P.],
but only if he knowingly, intentionally, or recklessly did so without [M.P.]’s consent.”5
See id. ¶ 23. To succeed on a mistake‐of‐fact defense, Marchet would have to
demonstrate either that M.P. actually consented or that there was a reasonable doubt as

5
This is not to say that the jury instruction employed could not be adjusted to
more clearly communicate the mental state element.

20090349‐CA 9
to whether M.P. consented. However, had the jury found either of those factual
situations in this case, the instructions provided informed them that they must acquit
Marchet because the State did not meet its burden of proving every element of the
crime beyond a reasonable doubt. In other words, the arguments and evidence
supporting Marchet’s mistake‐of‐fact defense also support an acquittal under the jury
instructions provided. Accordingly, the instructions properly informed the jury as to
the elements and mental state of the crime and allowed the jury to consider Marchet’s
theory of the case.6 Cf. id. ¶ 27 (“Assuming that the jurors resolved the contest of
credibility in favor of Marchet, there would be no need for a mistake of fact instruction

6
The trial court, adopting language from California case law, also noted that
Marchet’s proposed mistake‐of‐fact instruction was inadequate because the instruction
should have contained a subjective component that addressed whether Marchet “in
good faith[,] albeit mistaken[ly,] believe[d] that the victim . . . consented,” and an
objective component that addressed “whether the defendant’s mistake regarding
consent was reasonable under the circumstances.” See People v. Williams, 841 P.2d 961,
965 (Cal. 1992) (“The [mistake‐of‐fact defense as to a person’s lack of consent to sexual
intercourse] 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 victim consented to sexual intercourse. In order to satisfy this
component, a defendant must adduce evidence of the victim’s equivocal conduct on the
basis of which he erroneously believed there was consent. In addition, the defendant
must satisfy the objective component, which asks whether the defendant’s mistake
regarding consent was reasonable under the circumstances.” (footnote omitted)). It is
unclear whether Utah law recognizes a mistake‐of‐fact defense in such a context. See
State v. Houston, 2000 UT App 242, ¶ 6, 9 P.3d 188 (noting that the defendant was
acquitted of rape (and other charges) and his primary defense at trial was that “he had
‘a reasonable and good faith belief that [the complainant] voluntarily consented to
engage in sexual intercourse,’” but not analyzing that issue). Assuming Utah does
recognize such a defense in rape cases, this “is not to say [that] an honest and
reasonable mistake of fact instruction should not be given in the proper alleged rape
case,” but that such an instruction is not necessary here, where “the instructions as a
whole adequately instruct on the issues.” See United States v. Lewis, 6 M.J. 581, 586
(A.C.M.R. 1978) (per curiam). In the proper case, it may be wise to consider the
standards established by other jurisdictions, like California, when developing such a
jury instruction.

20090349‐CA 10
and the use of one may have weakened his defense. In contrast, if the jury believed [the
complainant’s] version of the facts, there is nothing in [the mistake of fact statute] that
would allow Marchet to ignore the fact that [the complainant] put her clothes back on
while he was out of the room and unambiguously indicated that she did not want to
have sex with him.”); Normandeau, 2007 UT App 382, ¶ 16.

CONCLUSION

¶20 Assuming, without deciding, that the assault evidence was improperly admitted
at trial, the error was harmless. Because Marchet was not prejudiced by the admission
of the assault evidence, Marchet’s claim of ineffective assistance of trial counsel fails.
Last, because the jury instructions as a whole “fairly instruct[ed] the jury on applicable
law,” see Normandeau, 2007 UT App 382, ¶ 16, the trial court did not commit reversible
error by rejecting Marchet’s proposed instruction on ignorance or mistake. Affirmed.

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James Z. Davis, Judge

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¶21 WE CONCUR:

____________________________________
Gregory K. Orme, Judge

____________________________________
Stephen L. Roth, Judge

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