State v. Latu

2025 UT App 60

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
SATEKI MALANI LATU,
Appellant.

Opinion
No. 20220677-CA
Filed May 1, 2025

Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 191912602

Emily Adams and Rachel Phillips Ainscough,
Attorneys for Appellant
Derek E. Brown and Michael Gadd,
Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 Sateki Malani Latu met Kelli 1 on a dating website. The two
met in person on three occasions. After their third meeting, Kelli
reported to law enforcement that Latu had raped her. Latu denied
raping Kelli, but he did essentially admit to conduct that
constituted forcible sexual abuse. Seemingly in agreement with
Latu about the facts, the jury convicted Latu of the crime of
forcible sexual abuse, which the jury had been instructed on as a
lesser included offense of rape. Latu appeals, arguing that a
detective (Detective) should not have been allowed to offer
testimony about the commonness of inconsistent testimony of

1. A pseudonym.
State v. Latu

victims in general. Latu claims this testimony improperly
enhanced Kelli’s credibility. We affirm Latu’s conviction because
he cannot demonstrate that the challenged testimony prejudiced
him where he admitted the elements of the crime for which he
was convicted—an admission that rendered Kelli’s credibility an
insignificant factor in the case.

BACKGROUND

¶2 Latu and Kelli met on a dating website in 2019. After
communicating through the website, Latu and Kelli met in person
on three occasions.

¶3 The first meeting occurred when Kelli was moving into a
new apartment. Kelli, finding herself without enough help to
unload the moving truck, messaged Latu to ask if he would be
interested in helping her move. Latu responded that he would “be
happy to help” and went over for a few hours to help unload the
truck. At trial, Kelli testified that there was no physical or
romantic contact between the two of them on this occasion.

¶4 The second meeting occurred when Latu returned to
Kelli’s apartment a few days later. Kelli and Latu had been texting
about an extra refrigerator Kelli had, which Latu was going to
pick up from her. When Latu arrived “he was really upset and
crying” about the recent passing of his wife. Kelli invited him in
and offered him a drink. The two “talked for quite a while” about
Latu’s late wife. After talking for some time, the two began
kissing. The kissing progressed to the point that Latu and Kelli
talked about having sex, but ultimately, they agreed that they
would not have sex on that occasion and that they should just be
friends. Kelli told Latu that he could “pick up the fridge another
day,” and Latu left.

¶5 Kelli’s and Latu’s accounts differ when it comes to their
third encounter. According to Kelli, Latu came over to pick up the

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fridge and was standing outside her front door. While Kelli went
inside to get the keys to the garage where the fridge was stored,
Latu entered her apartment. When Kelli returned to find Latu
inside her apartment, Latu began explaining to Kelli that they
“were supposed to be a family” and that he was going to take Kelli
and her son to Tonga. When Kelli told Latu that this made her
uncomfortable, Latu became upset. An argument ensued, and
Latu pushed Kelli onto the couch. Latu was “very forceful and
very upset,” and Kelli was “really scared.” Kelli told Latu to
“[p]lease leave.” But instead of leaving, Latu held Kelli down,
pulled off her pants and underwear, and pulled off his own pants
and underwear. Kelli specifically testified that Latu’s penis
penetrated her vagina and he ejaculated inside her, all the while
Kelli was asking him to stop and trying to push him away.

¶6 A few days after their third meeting, Latu left for a planned
trip to Tonga. Not long thereafter, Kelli told a friend and then her
ex-husband about the incident. Ultimately, she reported the
incident to the police, and Latu was charged with one count of
rape.

¶7 When Kelli initially reported the incident, she spoke with
detectives in a recorded interview at the police station. In that
interview Kelli made several statements that were inconsistent
with Latu’s story and with her own eventual trial testimony. She
said the rape occurred on the same day that Latu helped her
move, though she would later testify that it happened during their
third meeting. She said she had met Latu only once, though she
would later testify they met three times. She said that it was a
“literal fight” to get Latu off her, though later she did not mention
a struggle. She also said that she communicated with Latu only
through the dating website on which they had met, though she
would later testify that they exchanged text messages. Kelli
admitted that her initial statement to the detectives was
inaccurate and that some portions of the interview were “a
mistake.” Kelli also submitted a statement at the preliminary

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hearing that similarly contained some inconsistencies. Though
Kelli’s various accounts contained inconsistencies, all her
recitations are consistent when it comes to the fact that Latu acted
without her consent.

¶8 When Latu returned to the United States, he was arrested
in Hawaii and extradited to Utah. Once in Utah, Latu met with
detectives for a recorded interview. In that interview, Latu
relayed his version of events. According to Latu, on that third
occasion he and Kelli started kissing, Kelli lay down on her couch,
and he pulled down her underwear. He remembered that when
he pulled Kelli’s underwear down, she held them up and said
“no.” Latu admitted that he heard Kelli say “no.” Latu claimed it
was hard to understand Kelli’s meaning, and he admitted that he
pulled harder and forced them down. Latu admitted that he
performed oral sex on Kelli. He indicated that he put his penis
outside Kelli’s vagina and ejaculated but denied that there was
ever any penetration. In fact, Latu explained that he had difficulty
maintaining an erection. Latu admitted that he acted without
Kelli’s consent, and he did not stop.

¶9 At trial, the State presented evidence from Kelli, her
ex‑husband, Detective, and a forensic expert. Kelli testified to her
version of the events as described above. Kelli’s ex-husband
testified about how Kelli told him that “she had been raped.”

¶10 Detective testified about his interview with Latu, and the
entire video of that recorded interview was played for the jury.
On cross-examination, Detective admitted that there were some
inconsistencies between Kelli’s original statement and her
testimony at trial.

¶11 On redirect, the State asked Detective how common it is in
these kinds of cases “for the surrounding details to be sometimes
inconsistent or sometimes different from account to account.”
Defense counsel (Counsel) did not object to this question.
Detective responded,

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In my experience, it’s very common for people who
have experienced a sexual assault to—it’s a very
traumatic experience. They tend to remember the
[incident] itself very clearly. And sometimes people
will focus on very specific things during those—
during that experience, kind of to the exclusion of a
lot of other things. A lot of the time, when they come
to speak to us about this kind of experience, they
just want to talk about that experience. They’re not
very clear about the things leading up to or
immediately after that experience.

¶12 After the close of evidence, at Latu’s request, the district
court instructed the jury on a lesser included offense to rape:
forcible sexual abuse. The jury found Latu guilty of forcible sexual
abuse.

ISSUE AND STANDARD OF REVIEW

¶13 Latu appeals, arguing that he “received ineffective
assistance of counsel when his attorney did not object to improper
expert testimony from Detective.” “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.” State v. Perkins, 2024 UT App 101, ¶ 11, 554 P.3d
363 (cleaned up).

ANALYSIS

¶14 To establish an ineffective assistance of counsel claim, a
defendant must meet the two-prong test established in Strickland
v. Washington, 466 U.S. 668 (1984). “First, the defendant must show
that counsel’s performance was deficient . . . . Second, the
defendant must show that the deficient performance prejudiced

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the defense.” Id. at 687. Because a “failure to establish either prong
of the test is fatal to an ineffective assistance of counsel claim, we
are free to address [Latu’s] claims under either prong.” See State
v. Popp, 2019 UT App 173, ¶ 25, 453 P.3d 657 (cleaned up). The
prejudice prong requires a defendant to show “that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
State v. Gonzalez, 2021 UT App 135, ¶ 8, 501 P.3d 1205 (cleaned up).
“That is, the defendant’s showing must undermine our
confidence in the outcome.” Id. (cleaned up). Here, Latu’s claim
clearly fails under the prejudice prong, so we need not address
the issue of deficient performance.

¶15 Latu claims that he “received ineffective assistance of
counsel when his attorney did not object to improper expert
testimony from Detective.” He asserts that “Detective was not
qualified to opine on the effects of trauma on memory. Instead, he
offered improper anecdotal evidence that was unsupported by
reliable methods. This unqualified testimony improperly
bolstered Kelli’s credibility in a case that hinged on her credibility.
Objectively reasonable counsel would have objected to the
testimony.”

¶16 Latu’s argument cannot satisfy the prejudice prong of an
ineffective assistance of counsel claim for at least two reasons.
First, the jury already believed Latu over Kelli when it came to the
most important issue in the case—whether a rape occurred. And
second, the jury likely convicted Latu of forcible sexual abuse
based on his confession alone.

¶17 The primary difference between Latu’s and Kelli’s
accounts of their third meeting is that Kelli insists there was
vaginal penetration and Latu insists there was not. Similarly, the
primary difference between rape, the original crime for which
Latu was charged, and forcible sexual abuse, the lesser included
offense for which he was convicted, is that rape requires vaginal

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penetration while forcible sexual abuse does not. Compare Utah
Code § 76-5-402(2)(a) (“An actor commits rape if the actor has
sexual intercourse with another individual without the
individual’s consent.”), with id. § 76-5-404(2)(a)(i)(A) (“[A]n actor
commits forcible sexual abuse if . . . without the consent of the
individual, the actor . . . touches the anus, buttocks, pubic area, or
any part of the genitals of another individual . . . .”). Here, the
jury’s verdict demonstrates it was persuaded by Latu’s argument
that Kelli was an unreliable witness because it found Latu was not
guilty of rape but was guilty instead of forcible sexual abuse.

¶18 Latu’s argument is that Counsel should have made an
objection and attempted to exclude testimony aimed at bolstering
Kelli’s credibility. But Latu cannot prove prejudice on this point
because it’s clear that the State’s efforts to rehabilitate Kelli’s
credibility (through Detective’s testimony) were unsuccessful.

¶19 The district court even noted at the sentencing hearing,
“The jury did not find [Latu] guilty of rape, which was the
[principal] charge in the case.” It continued that “one possible
explanation for the verdict is that [the jury] had doubts about the
credibility of some of [Kelli’s] testimony because of some
inconsistencies that were apparent in her interview with police.”
The court surmised that the jury’s verdict could be explained by
the fact that Counsel had discredited Kelli and the jury did not
give her testimony much weight, despite the State’s efforts to
explain away any inconsistencies.

¶20 Even though the verdict makes clear that members of the
jury questioned Kelli’s credibility, Latu maintains that if Counsel
had succeeded in excluding Detective’s testimony, the result of
the proceeding would have been different. This argument is
unpersuasive. Latu had already obtained the best possible
outcome in light of his confession, and the result could not be
anything better than what it was here. In fact, Latu made a
strategic decision when he asked the court to instruct the jury on

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the lesser included offense of forcible sexual abuse. Latu could
have gone forward without seeking this instruction in the hope
that the jury would have acquitted him altogether. But Latu chose
to introduce the idea of forcible sexual abuse, a decision that paid
off when the jury acquitted on the rape charge. This decision,
which Latu does not attack on appeal, constitutes a material part
of the context in which we conclude that a better result could not
be obtained.

¶21 “To evaluate prejudice under Strickland, we assess
counterfactual scenarios—that is, what would have happened but
for the ineffective assistance. The counterfactual analysis requires
us to consider a hypothetical—an alternative universe in which
the trial went off without the error.” State v. Garcia-Flores, 2021 UT
App 97, ¶ 27, 497 P.3d 847 (cleaned up). If we imagine a world
where Counsel successfully objected to Detective’s testimony,
even if we imagine a world without Kelli’s testimony altogether,
there is no reasonable probability that the result of the proceeding
would have been different; no matter how much Latu discredits
Kelli’s testimony, the jury would have reached the same
conclusion because Latu confessed to forcible sexual abuse.

¶22 It is especially difficult to demonstrate prejudice in cases
where the defendant has confessed. After all, where there is
unusually strong evidence to support the conviction, it does not
matter whether some duplicative evidence was admitted or
excluded. See, e.g., id. ¶¶ 1, 26–28, (holding there was no prejudice
in a child pornography case in which the defendant confessed to
possessing child pornography); State v. Russell, 2000 UT App
296U, para. 2 (holding there was no reasonable probability of a
different result in that case because the defendant confessed to the
crime).

¶23 Under Utah law, a person “commits forcible sexual abuse
if . . . without the consent of the individual, the actor . . .
touches . . . any part of the genitals of another individual” and

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that person “intends to . . . arouse or gratify the sexual desire of
any individual.” Utah Code § 76-5-404(2)(a). At Latu’s request, the
jury was instructed on forcible sexual abuse. The instructions
detailed each element of the offense, including the requirements
that Latu “intentionally, knowingly, or recklessly” touched Kelli’s
anus, buttocks, genitals, or breast; “did so without [Kelli’s]
consent;” and “acted with intent, knowledge, or recklessness that
[Kelli] did not consent.” (Emphasis added.) See id. § 76-2-102
(requiring “intent, knowledge, or recklessness”).

¶24 Here, in his police interview, Latu admitted that Kelli
initially said “no” and fought him when he tried to pull her
underwear down, that he had to act forcefully to remove her
underwear, that he performed oral sex on Kelli, that he ejaculated
on her, and that all of this was done without her consent. Based
solely on the video of Latu’s interview with the detectives, which
was entered into evidence and played for the jury, the jury would
have convicted Latu regardless of Kelli’s testimony because he
had confessed to the elements of forcible sexual abuse.

¶25 This is particularly the case considering that, under the
relevant statute, Latu need only have been reckless when it came
to whether Kelli consented. That is, the State would have only had
to prove that Latu was “aware of but consciously disregard[ed] a
substantial and unjustifiable risk that” Kelli did not consent to his
actions. See id. § 76-2-103(3). Latu admitted that he heard Kelli say
“no” but that he continued anyway and acted without her
consent. Thus, based on Latu’s interview alone, the State would
have had no problem demonstrating that Latu possessed the
requisite mental state to have committed forcible sexual abuse.

¶26 As the district court explained, even though Kelli’s
testimony was unreliable, the jury “felt comfortable finding [Latu]
guilty based on what he admitted to police, which is that this was
a non-consensual situation.” The court went on, “[Kelli] said no
and he proceeded anyway forcibly to remove her underwear and

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engage in sexual contact with her when she was expressing desire
that he not do so. So she said no and he continued. That was his
own admission.”

¶27 Because Latu’s own testimony demonstrated that he acted
without Kelli’s consent—or was at least reckless as to her
consent—there is no possibility of a better outcome for Latu, and
he therefore cannot show prejudice.

CONCLUSION

¶28 Latu’s ineffective assistance of counsel claim fails because
he cannot demonstrate that he was prejudiced by Counsel’s
actions. Counsel had already discredited Kelli, and the State’s
attempts to reverse that effect were unsuccessful. Accordingly,
even if Counsel succeeded in excluding Detective’s testimony, it
would not have resulted in a better outcome for Latu because he
had confessed to forcible sexual abuse. We affirm Latu’s
conviction.

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