State v. Almaguer

2020 UT App 117

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JOSE LUIS ALMAGUER,
Appellant.

Opinion
No. 20190120-CA
Filed August 13, 2020

First District Court, Logan Department
The Honorable Thomas Willmore
No. 171100373

Michael C. McGinnis, Attorney for Appellant
Sean D. Reyes and David A. Simpson, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Jose Luis Almaguer appeals his conviction of rape, a first-
degree felony. We affirm.

BACKGROUND

¶2 A woman (Victim) dropped her children off at a friend’s
house while she went on a date. When she returned to pick up
her children late at night, she encountered Almaguer, her
friend’s husband, on the front porch. After he told her the
children were sleeping, she asked if she could sleep on the couch
so she would not wake them. This is where Victim’s and
Almaguer’s stories diverge.
State v. Almaguer

¶3 Victim asserted that Almaguer asked her to join him
in the backyard while he smoked a cigarette before going
inside to sleep. She claimed they sat on a porch swing
together for about half an hour while Almaguer asked her
personal questions that made her feel uncomfortable. She finally
asked whether she could go inside to sleep. He agreed, and she
went in and lay down on the couch by her children. However,
Almaguer kept “walking through the room,” at one point
bringing her a blanket after she had told him she did not need
one. She hoped that if she closed her eyes, he would leave her
alone. But instead, she soon felt his hands on her. He groped her
breasts and put his hand under her waistband, touching her
vagina and anus. She pretended to be asleep because she “was
scared and shocked,” was afraid to wake her children, and “was
worried about what would happen to [her] or [her] kids if [she]
tried to fight.”

¶4 Almaguer then stopped and walked away. Victim was
scared to leave right then and “didn’t know what to do.” But
soon Almaguer returned. This time, he quickly pulled Victim
down the couch and flipped her onto her stomach. He then
raped her while she continued to pretend she was asleep. She
explained, “I was just completely not responding at all. I was
limp and I was just thinking about my kids like, don’t wake up,
don’t wake up, don’t wake up.” When Almaguer finally stopped
and went upstairs, Victim continued to lie on the couch with her
children. She was scared to leave too quickly because she did not
want Almaguer to know she had been awake the whole time and
was worried that if he heard them leave, he might chase after
them. However, “as soon as light hit,” she woke her children
and took them home.

¶5 Victim reported the incident to police the same day and
received a physical examination. She told the nurse examiner the
same story she later told at trial. The examination found sperm
on Victim’s cervix that matched Almaguer’s DNA.

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State v. Almaguer

¶6 Detectives interviewed Almaguer about the incident. He
repeatedly claimed not to know Victim and stated that he did
not have sex with her or do “anything” with her. However, at
trial, he told a different story.

¶7 On the stand, Almaguer testified that he was smoking
methamphetamine the night of the incident and that Victim
offered to perform sexual favors in return for drugs. After they
smoked, she pulled down her own pants and began touching
herself. She then performed oral sex on him. Almaguer claimed
that Victim wanted to have sex with him, but he refused. So
instead, Victim asked him “to ejaculate on her hand” so she
could “continue to touch herself,” and he complied. He testified
that afterward, he took her inside to sleep on the couch with her
kids. He gave her a blanket, went upstairs, and “never saw her
again.” To explain the inconsistencies in his testimony,
Almaguer claimed that he had difficulty understanding some of
the officers’ questions in English and that he wanted to keep the
truth from his wife.

¶8 In rebuttal to Almaguer’s testimony, the nurse examiner
testified that the cervix is located toward “the back end of the
vagina” “typically three to four inches” from the vaginal
opening; Victim denied performing oral sex on Almaguer,
asking him to ejaculate on her, or touching herself; and the
interviewing detective, who speaks Spanish fluently, testified
that he did not perceive any issues with Almaguer’s ability to
speak and understand English.

¶9 During closing argument, both Almaguer’s counsel and
the prosecutor argued that their witnesses had told the truth and
that the other side’s witnesses had lied. At issue on appeal, the
prosecutor, in closing argument, stated,

And I’m going to look at that story just a
little bit more because [Almaguer] testified under
oath. He testified under oath that this is what

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happened after he lied to [the police] about
everything. He lied to you under oath. He perjured
himself. Think about it. And again I apologize. It’s
a little graphic, but his story is that she is
pleasuring herself and decides to give him a blow
job and asks him to put it on her hand. Whatever
happened to any—I mean really? That kind of
thinking only happens in the mind of someone
who is into the fantasy world.

Let’s think about that physically. Did she
have a catcher’s [mitt] because I’m pretty sure
when ejaculate comes out, it’s coming out with
some force. Is she—how is she catching that? Is
she—what happens when it hits her hand? Is
that—did she suddenly decide okay I’ve got to get
that up on my cervix so excuse me and engages in
some kind of gymnastics? What’s she going to do?
Like pull her pants down. She has to turn her hand
like this [to] get all the way up in there. Are you
kidding me? If she was truly pleasuring herself
that’s on the outside of a woman’s body. She’s not
going to be all up in her cervix. Is it reasonable to
believe that story? It is absurd. It was concocted by
Mr. Almaguer to get him out of trouble.

Following the prosecutor’s remarks, the trial court intervened
and instructed the jury,

Jurors, I want to correct a couple of things that
were said during the closing arguments. Once
again, Instruction 18 tells you that [lawyers’
statements] and arguments are not evidence. And
that’s an instruction that you must follow. During
the closing arguments there were several times the
lawyers made statements about who they believe is

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State v. Almaguer

credible or believable. That’s not their job. Your job
is to decide who is credible, who is believable.
That’s your decision and your decision only and
not the lawyers. It’s not what an attorney thinks.

So your job as I’ve instructed you in several
instructions is to assess the credibility of each
witness and you believe what you feel you should
believe and you believe who you feel you should
believe and not what an attorney thinks or says.
You must make, as I’ve told you in many of the
instructions, your decision is based on the evidence
only. However, as you were instructed, you can
draw inferences from that evidence and you can
use common sense.

Finally, it was mentioned by [the
prosecutor] that the defendant may have perjured
himself. Now that’s a strong word. And you are to
completely disregard that statement made by the
State’s attorney. And you are not to consider it in
your deliberations. Once again, it’s up to you who
you decide to believe and what to believe.

¶10 The jury found Almaguer guilty, and the court sentenced
him to a prison term of five years to life. Almaguer now appeals.

ISSUE AND STANDARD OF REVIEW

¶11 Almaguer argues that the prosecutor engaged in
prosecutorial misconduct when she stated that he lied on the
stand and accused him of committing perjury. Almaguer did not
preserve this issue for review and therefore asks us to review it
for plain error. To prevail on a plain error claim, an appellant
must show that “(i) an error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful, i.e.,

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absent the error, there is a reasonable likelihood of a more
favorable outcome for the appellant.” State v. Holgate, 2000 UT
74, ¶ 13, 10 P.3d 346 (quotation simplified). 1

ANALYSIS

¶12 “A prosecutor commits misconduct during closing
arguments when the prosecutor’s actions or remarks call to the
attention of the jury a matter it would not be justified in
considering in determining its verdict.” State v. Johnson, 2007 UT
App 184, ¶ 42, 163 P.3d 695 (quotation simplified). For example,
“a prosecutor engages in misconduct when he or she expresses
personal opinion or asserts personal knowledge of the facts.”

1. Almaguer also argues that Victim’s testimony was so
inherently improbable that it should have been disregarded and
that the evidence was insufficient without that testimony to
support the verdict. However, Almaguer has not demonstrated
that he preserved this issue for our review, and he has not
asserted that we should consider the issue under any exception
to the preservation rule. Almaguer moved for a directed verdict,
but the basis for his motion was limited to the issue of consent.
He argued that even if the jury accepted Victim’s testimony,
there was no evidence that she said “no” and that the jury
therefore could not convict Almaguer of rape. Because Almaguer
did not argue that the trial court should disregard Victim’s
testimony in its entirety as inherently improbable, he did not
preserve that issue for appeal, and we do not consider it further.
See State v. Skinner, 2020 UT App 3, ¶ 29, 457 P.3d 421 (“A
defendant who wants a trial court to disregard a witness’s
testimony under [State v. Robbins, 2009 UT 23, 210 P.3d 288,]
before, or in connection with, undertaking a sufficiency-of-the-
evidence review must make that request known to the trial court
so that the court has an opportunity to rule on the issue.”).

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State v. Davis, 2013 UT App 228, ¶ 35, 311 P.3d 538 (quotation
simplified), abrogated on other grounds by State v. Ringstad, 2018
UT App 66, 424 P.3d 1052. But “a prosecutor may draw
permissible deductions from the evidence and make assertions
about what the jury may reasonably conclude from those
deductions.” Id. (quotation simplified).

¶13 “In determining whether a given statement constitutes
prosecutorial misconduct, the statement must be viewed in light
of the totality of the evidence presented at trial.” State v. Todd,
2007 UT App 349, ¶ 14, 173 P.3d 170 (quotation simplified).
Therefore, addressing matters of prosecutorial misconduct is
largely left to the discretion of the trial court, since “the trial
court is in the best position to determine the impact of a
statement upon the proceedings.” Id. (quotation simplified).
Having evaluated all the circumstances, the trial court may
determine that a curative instruction is sufficient to alleviate any
prejudice, or it may determine that the prosecutorial misconduct
is so prejudicial that a mistrial is necessary. And we will reverse
the court’s determination only for an abuse of discretion. Id.

¶14 Almaguer claims that it was prosecutorial misconduct for
the prosecutor to accuse him of committing perjury and to attack
his credibility as a witness during closing. He claims that this
misconduct was unfairly prejudicial and requires us to reverse
and remand for a new trial. 2 But Almaguer did not object to the
prosecutor’s statement below or ask the trial court to remedy the
alleged misconduct in any way. Rather, after the closing
arguments, the trial court intervened on its own, reminding the
jurors that it was their job to determine credibility and

2. He also appears to take issue with what he characterizes as the
prosecutor’s “sexually-graphic sarcasm,” but he does not
separately analyze this aspect of the prosecutor’s statements, and
therefore, neither do we.

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State v. Almaguer

instructing them to disregard the prosecutor’s perjury
accusation.

¶15 On appeal, Almaguer asks us to review the prosecutorial
misconduct issue for plain error. However, he makes no attempt
to properly analyze the issue under the plain error doctrine.
Rather than focus on whether the trial court committed obvious
error by striking the perjury statement and issuing the curative
instruction it did instead of employing some other remedy, such
as declaring a mistrial, Almaguer’s entire analysis focuses on
whether the prosecutor committed misconduct and whether that
misconduct was prejudicial.

¶16 But it is not our role to “review the actions of counsel—at
least not directly.” State v. Hummel, 2017 UT 19, ¶ 107, 393 P.3d
314. Rather, we “focus our analysis on district court decisions.” Id.
¶ 106. “[O]ur plain error analysis asks not whether the
prosecutor made a misstep that could be characterized as
misconduct, but whether the trial court made an ‘obvious’ error
in its decision.” Id. ¶ 105 (quotation simplified). Therefore, “we
cannot properly conclude that every misstep of counsel in
closing amounts to plain error—subject only to proof of
prejudice.” Id. ¶ 110. Instead, we must consider “whether
counsel’s missteps were so egregious that it would be plain error
for the district court to decline to intervene sua sponte.” Id.
Almaguer does not analyze this question at all, and we see
nothing to suggest to us that the trial court plainly erred by not
taking a different action.

¶17 First, there is nothing inherently improper about a
prosecutor calling the defendant a liar. Indeed, “a prosecutor’s
statement that a witness is lying is analyzed under the same test
as any other comment on the credibility of a witness.” State v.
Thompson, 2014 UT App 14, ¶ 59, 318 P.3d 1221. If the statement
that the defendant lied is a “fair inference” that is supported by
the evidence, it is not improper. Id. ¶ 61. And while the

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accusation of perjury arguably goes beyond merely commenting
on the defendant’s credibility, we are not convinced that it
should have been obvious to the trial court that the prosecutor’s
statement, to which no objection was lodged, constituted
prosecutorial misconduct so egregious that it required the court
to take action beyond the curative instruction it gave.

¶18 Further, we are not convinced that Almaguer suffered
prejudice as a result of the prosecutor’s misstatement. The court
swiftly and explicitly condemned the prosecutor’s perjury
statement, directing the jury to “completely disregard that
statement” and “not to consider it in [its] deliberations.”
Moreover, it reiterated the jurors’ responsibility to use their own
judgment to assess the witnesses’ credibility rather than relying
on the lawyers’ credibility assessments. Almaguer has failed to
“show that the prosecutor’s comment was so prejudicial as to
defeat the mitigating effect of the court’s curative instructions.”
See Taylor v. State, 2007 UT 12, ¶ 115, 156 P.3d 739 (quotation
simplified); see also State v. Wright, 2013 UT App 142, ¶ 42, 304
P.3d 887 (“In the absence of any circumstances suggesting
otherwise, courts presume that the jury follows [curative]
instructions.”). Thus, he cannot establish that the court
committed plain error in its handling of the alleged prosecutorial
misconduct.

CONCLUSION

¶19 Almaguer has not established that the trial court
committed plain error in addressing the alleged prosecutorial
misconduct. We therefore affirm Almaguer’s conviction.

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