State v. Vigil

2013 UT App 167
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
PAUL RAYMOND VIGIL,
Defendant and Appellant.

Opinion
No. 20110698‐CA
Filed July 5, 2013

Third District, Salt Lake Department
The Honorable Robin W. Reese
No. 101907193

Joel J. Kittrell, Attorney for Appellant
John E. Swallow and Jeanne B. Inouye, Attorneys
for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE CAROLYN B. MCHUGH concurred. JUDGE GREGORY K. ORME
concurred in the result.

VOROS, Judge:

¶1 Paul Raymond Vigil appeals from his convictions for
aggravated kidnapping, rape, and related crimes.1 On appeal he

1. Vigil was convicted of Aggravated Kidnapping, a first degree
felony; Rape, a first degree felony; Possession with Intent to
Distribute a Controlled Substance, a second degree felony;
Distribution/Offering/Arranging the Distribution of a Controlled
Substance, a second degree felony; and Unlawful
Possession/Purchase/Transfer of a Dangerous Weapon, a class A
(continued...)
State v. Vigil

contends that the trial court erred by denying his request to recall
the victim, J.B., for a third cross‐examination. We affirm.

BACKGROUND

¶2 In September 2010, J.B. asked Vigil, who had previously sold
drugs to her, for a ride from the airport to a friend’s house. Vigil
picked her up but drove her to his home rather than to the friend’s
house. J.B. repeatedly asked Vigil to take her to the friend’s house
but ended up staying at Vigil’s house. While there, both she and
Vigil took drugs. Several days later, J.B. told Vigil she was leaving.
Vigil became angry, raped J.B., then emptied her wallet while she
was getting dressed. J.B. got a ride to a different friend’s house and
reported the rape.

¶3 J.B. left Utah for an out‐of‐state drug treatment center but
returned to testify at Vigil’s trial. On the first day of trial, she was
called to the stand as a witness for the State. As relevant here, she
testified that she had arrived in Utah the day before trial and had
gone to Temple Square with a care provider from the treatment
center. On cross‐examination, J.B. denied that she had visited a
defense witness (Witness), denied giving Witness money, and
denied asking Witness for drugs.

¶4 On the second day of trial, J.B. was recalled to the stand by
the State and admitted that her prior testimony about the night
before trial had not been accurate. She admitted that the care
provider had not accompanied her and that she had returned to her
hotel before reaching Temple Square. But she reaffirmed her
testimony about the events giving rise to the charges against Vigil.
On cross‐examination, J.B. again denied that she had visited
Witness the night before trial.

1. (...continued)
misdemeanor. See Utah Code Ann. §§ 58‐37‐8(1)(a)(ii), ‐8(1)(a)(iii)
(LexisNexis 2008); id. § 76‐5‐302; id. § 76‐5‐402; id. § 76‐10‐503(3)(b).

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State v. Vigil

¶5 On the third day of trial, the prosecutor disclosed to the
court and defense counsel that she had talked to the hotel bus
driver the previous evening. The bus driver told her that on the
night before trial a young woman, possibly J.B., had ridden the bus
to a location near Witness’s house. The judge, prosecutor, and
defense counsel discussed recalling J.B. again to cross‐examine her
about the falsity of her prior testimony on this point. They
recognized that if J.B. denied riding the bus, defense counsel would
seek to impeach J.B. by calling the hotel bus driver to testify.
However, neither the prosecutor nor defense counsel could reach
the hotel bus driver despite placing “dozens” of calls. As a result,
the trial judge requested that the prosecutor and defense counsel
consider stipulating that J.B. had testified falsely on this point.

¶6 The State was willing to enter into such a stipulation, but
Vigil wanted to recall J.B. The State objected to recalling J.B. and the
trial court sustained the objection, noting “It seems to me that the
defense gets everything they want out of the stipulation.”
Accordingly, the State’s stipulation was read to the jury. The
stipulated facts were (1) that J.B.’s revised testimony about her
whereabouts on the night before trial was false and (2) that J.B. had
visited Witness’s neighborhood.

¶7 Later that day Witness took the stand. She testified that J.B.
came to her house the night before trial looking for drugs. Vigil did
not ask Witness whether J.B. had offered her money in an attempt
to influence her trial testimony.

ISSUES AND STANDARDS OF REVIEW

¶8 Vigil contends that his “rights under the Confrontation
Clause were violated because he did not have the opportunity to
cross‐examine the complaining witness about her motives for lying
twice under oath about visiting one of the key witnesses” whose
testimony was contrary to hers. “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 to the facts

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State v. Vigil

of the case for an abuse of discretion.” State v. Chavez, 2002 UT App
9, ¶ 17, 41 P.3d 1137.2

¶9 Vigil also contends that the “trial court erred when it denied
[his] motion for a new trial.” “[T]he trial court’s decision to deny
[a] defendant’s motion for new trial is reviewed under an abuse of
discretion standard.” State v. Evans, 2001 UT 22, ¶ 26, 20 P.3d 888.
However, “we review the legal standards applied by the [trial]
court in denying [a] motion [for a new trial] for correctness.” State
v. Allen, 2005 UT 11, ¶ 50, 108 P.3d 730.

ANALYSIS

I. Confrontation Clause

¶10 Vigil first contends that the trial court’s denial of his request
to recall J.B. to the stand for a third time resulted in a violation of
his Confrontation Clause rights. “The Sixth Amendment to the
United States Constitution states in relevant part, ‘In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . .’” State v. Marks, 2011 UT App
262, ¶ 13 n.6, 262 P.3d 13 (omissions in original) (quoting U.S.
Const. amend. VI). Nevertheless, a defendant’s Sixth Amendment
right to confront his accuser “is not absolute,” State v. Tarrats, 2005
UT 50, ¶ 36, 122 P.3d 581, and “may, in appropriate cases, bow to
accommodate other legitimate interests in the criminal trial
process,” Michigan v. Lucas, 500 U.S. 145, 149 (1991) (citation and

2. Although Vigil cites the Utah Constitution, he undertakes no
separate state constitutional analysis. Where an appellant “neither
attempts any separate state constitutional analysis nor suggests
that the two constitutional protections are anything but
coextensive” but merely restates the “truism” that a state
constitutional provision may provide greater protections to Utah
citizens than its federal counterpart, the state constitutional issue
is not properly before the reviewing court. State v. Worwood, 2007
UT 47, ¶ 19, 164 P.3d 397.

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State v. Vigil

internal quotation marks omitted). Thus, “trial judges retain wide
latitude to limit reasonably a criminal defendant’s right to
cross‐examine a witness based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or only marginally
relevant.” Id. (citation and internal quotation marks omitted).

¶11 “[A] criminal defendant states a violation of the
Confrontation Clause by showing that he was prohibited from
engaging in otherwise appropriate cross‐examination designed to
show a prototypical form of bias on the part of the witness . . . .”
Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986); see also Chavez, 2002
UT App 9, ¶ 18. Even if a defendant does so, the Supreme Court
has “repeatedly reaffirmed the principle that an otherwise valid
conviction should not be set aside if the reviewing court may
confidently say, on the whole record, that the constitutional error
was harmless beyond a reasonable doubt.” Van Arsdall, 475 U.S. at
681; see also Chavez, 2002 UT App 9, ¶ 22 (stating that where we
conclude that a trial court committed a Confrontation Clause error,
“we must [then] consider whether the error was harmless beyond
a reasonable doubt”).3 Accordingly, upon a showing of
Confrontation Clause error, reversal is required unless a reviewing

3. Every federal circuit has continued to apply the harmless beyond
a reasonable doubt standard to Confrontation Clause errors after
the issuance of Crawford v. Washington, 541 U.S. 36 (2004), which
defined Confrontation Clause error without addressing harm. See,
e.g., United States v. Rosalez, 711 F.3d 1194, 1217–18 (10th Cir. 2013);
United States v. Turner, 709 F.3d 1187, 1194–95 (7th Cir. 2013); United
States v. Heard, 709 F.3d 413, 433 (5th Cir. 2013); United States v.
Cameron, 699 F.3d 621, 652 (1st Cir. 2012); United States v.
Bustamante, 687 F.3d 1190, 1195 (9th Cir. 2012); United States v.
Summers, 666 F.3d 192, 204 (4th Cir. 2011); United States v. Mueller,
661 F.3d 338, 349 (8th Cir. 2011); United States v. Moore, 651 F.3d 30,
74 (D.C. Cir. 2011); United States v. Treacy, 639 F.3d 32, 45 (2d Cir.
2011); United States v. Henderson, 626 F.3d 326, 333–35 (6th Cir.
2010); United States v. Jones, 601 F.3d 1247, 1264 (11th Cir. 2010);
United States v. Hardwick, 544 F.3d 565, 573–74 (3d Cir. 2008).

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State v. Vigil

court determines that the error was harmless beyond a reasonable
doubt.

¶12 Assuming without deciding that the trial court erred by
refusing to recall J.B. to the stand, we turn to the second part of this
test. “The correct inquiry is whether, assuming that the damaging
potential of the cross‐examination were fully realized, a reviewing
court might nonetheless say that the error was harmless beyond a
reasonable doubt.” Van Arsdall, 475 U.S. at 684. A reviewing court
considers “a host of factors,” including “the importance of the
witness’[s] testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on
material points, the extent of cross‐examination otherwise
permitted, and, of course, the overall strength of the prosecution’s
case.” Id. For convenience, we refer to these as the Van Arsdall
factors.

¶13 Vigil contends that the denial of a third cross‐examination
harmed him in two ways. He asserts that had he been able to cross‐
examine J.B. again “[1] the jury could have become aware of [J.B.’s]
true intentions for going to [Witness’s] house the night before trial,
and [2] the jury would have had the seriousness of [J.B.’s] second
perjured testimony more memorable in their minds.”

¶14 We first consider the “importance of the witness’[s]
testimony in the prosecution’s case.” Id. Vigil argues that his
conviction “rests almost exclusively on [J.B.’s] testimony. Because
of that, it is very likely that [her] testimony heavily influenced the
jury’s decision.” J.B. was, of course, the key prosecution witness to
the facts supporting the elements of the charged crimes. In this
sense, her testimony was of ultimate importance. However, Vigil
had and took full opportunity to cross‐examine J.B. concerning the
facts supporting the elements of the crimes. Vigil was prevented
from cross‐examining J.B. only about the two facts stipulated to:
(1) that J.B. went to Witness’s neighborhood on the night before
trial and (2) that J.B.’s earlier testimony about her whereabouts on
that night was false. Accordingly, our evaluation of harmlessness

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is limited to the damaging potential of cross‐examination on those
topics.

¶15 With respect to J.B.’s intent, Vigil points out that J.B. lied
about where she went the night before trial during both cross‐
examinations. As a result, the “defense never had the opportunity”
to cross‐examine her “regarding the reasons for [her] perjury and
late‐night visit to an opposing witness.” Vigil suggests that, given
the chance to cross‐examine J.B. after “hard evidence of her
whereabouts finally emerged,” he “might have revealed her
reasons for visiting [Witness], including offering money in
exchange for favorable testimony.”

¶16 Vigil did not, in fact, have the chance to cross‐examine J.B.
after it was revealed that she had been dropped off in Witness’s
neighborhood. But “[a]n assessment of harmlessness cannot
include consideration of whether the witness’[s] testimony would
have been unchanged . . . ; such an inquiry would obviously
involve pure speculation, and harmlessness must therefore be
determined on the basis of the remaining evidence.” Coy v. Iowa,
487 U.S. 1012, 1021–22 (1988). Accordingly, we will not speculate
on what testimony Vigil might have been able to elicit from J.B.
during a third opportunity for cross‐examination and turn, instead,
to the remaining evidence.

¶17 Immediately after the stipulation was read to the jury, Vigil
called Witness to the stand. Her testimony reinforced the substance
of the stipulation. She testified that J.B. had visited her the night
before trial and that J.B. had asked for drugs. Witness did not
mention any attempt by J.B. to offer her money in exchange for
favorable testimony. Tellingly, Vigil did not ask Witness about the
very allegation that he now asserts on appeal—that J.B. attempted
to influence Witness’s trial testimony. As a result, no record
evidence shows or even implies such an attempt. Although our
analysis must assume that any damaging potential of cross‐
examination would have been fully realized, Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986), we may not assume the existence

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State v. Vigil

of verdict‐altering testimony in the absence of any evidentiary
support.4

¶18 We look next to whether the excluded testimony was
cumulative. Id. Vigil claims that he never had the opportunity to
cross‐examine J.B. about her intent in visiting Witness. But under
cross‐examination during the first day of trial, J.B. testified that she
did not offer Witness money or ask Witness for drugs on the night
before trial.5 Witness, in contrast, testified that J.B. visited her the
night before trial seeking drugs. If cross‐examined again on this
point, J.B.’s testimony would likely have been cumulative either of
her earlier testimony or of Witness’s testimony. Accordingly, cross‐
examination of J.B. regarding her intent in visiting Witness would
likely have been cumulative.

¶19 Vigil also argues that cross‐examining J.B. a third time
would have more memorably etched the falsity of J.B.’s prior
testimony into the minds of the jury. He claims that the “parties’
stipulations to the bare facts of [J.B.’s] use of the hotel shuttle to go
to an area near [Witness’s] house is not sufficient to impress upon
the jury the seriousness of her perjury.” In this regard, Vigil does
not assert that the trial court’s ruling excluded substantive
evidence. Instead, he complains in effect that he was deprived of
the “opportunity of profiting from the legitimate moral force of
[J.B.’s false testimony] in persuading [the] jury.” See State v.

4. Were it otherwise, a defendant could always speculate that,
given more time or greater latitude in conducting cross‐
examination, he might have eventually discovered some fact
damaging to the credibility of a witness.

5. Although some of J.B.’s testimony on the first day of trial was
false, we do not infer from that fact that her other testimony, much
of which the jury apparently found credible, was also false. Cf. State
v. Marks, 2011 UT App 262, ¶ 64, 262 P.3d 13 (noting that evidence
of perjury about one topic at a preliminary hearing is not a fact
supporting an inference of perjury about a second topic testified to
at trial).

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Gulbransen, 2005 UT 7, ¶ 37, 106 P.3d 734 (holding that a stipulation
of fact by the defense did not make evidence of that fact less
relevant). Indeed, presumably for this very reason, a plurality of
the Utah supreme court has held that, “[a]s a general rule, a party
may not preclude his adversary’s offer of proof by admission or
stipulation.” State v. Bishop, 753 P.2d 439, 475 (Utah 1988) (plurality
opinion), overruled on other grounds by State v. Menzies, 889 P.2d 393
(Utah 1994). We thus consider the potential prejudice of this
limitation on Vigil’s cross‐examination.

¶20 Despite this limitation, the jury was made aware of the
underlying facts by means of the stipulation. And Vigil freely
addressed J.B.’s perjury in closing argument. Vigil stated, “What
we do know for fact is that [J.B.] has been deceptive. She has
testified falsely on multiple occasions.” Defense counsel reiterated
that, on the second day of trial, J.B. “acknowledged . . . she wasn’t
truthful about everything on the [first day of trial]. [And she]
acknowledg[ed] today she wasn’t truthful . . . yesterday about what
happened on the [night before trial].” Because the jury was thus
aware of the reasons they might doubt J.B.’s credibility, we
conclude that Vigil had the opportunity to profit from the
legitimate moral condemnation of J.B.’s perjury. See Gulbransen,
2005 UT 7, ¶ 37; cf. State v. Marks, 2011 UT App 262, ¶ 67, 262 P.3d
13 (discerning no Confrontation Clause error where the defense
had a “reasonable opportunity to adequately explore, by
alternative methods,” the credibility of a witness). The trial court’s
ruling thus did “not preclude the defendant from effectively
challenging the credibility of the victim”; Vigil had “a reasonable
opportunity to adequately explore, by alternative methods, the
substance of his complaints regarding the veracity of the victim’s
allegations.” State v. Quinonez‐Gaiton, 2002 UT App 273, ¶ 17, 54
P.3d 139.

¶21 We also consider the “presence or absence of evidence
corroborating or contradicting the testimony of the witness on
material points.” Van Arsdall, 475 U.S. at 684. As noted above, J.B.’s
testimony was central to proving the charged offenses. However,
other evidence corroborated her testimony.

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State v. Vigil

¶22 With regard to kidnapping and rape, J.B. testified that when
she tried to leave Vigil’s apartment, he shut the door and told her
that she was not going anywhere. J.B. also testified that Vigil threw
her on the floor and raped her. These facts were corroborated by
the testimony of the apartment manager that J.B. emerged from
Vigil’s apartment “bawling” and asked him for a ride. The
responding police officer testified that J.B. appeared traumatized.
Another witness testified that J.B. was “crying real badly like she
couldn’t breathe.” And the examining nurse testified that J.B. had
bruises and abrasions on her shoulders, arms, back, legs, and
genitals.6 Moreover, although Vigil denied having had even
consensual sex with J.B., DNA that was almost certainly Vigil’s was
found on her breast and inside her underwear.7

¶23 Turning to the drug and weapon charges, J.B. testified that
Vigil gave her drugs in his car and at his apartment. She also
testified that Vigil sold drugs to other people during this time
period. The police officer who arrested Vigil corroborated this
testimony when he testified that Vigil was found with several types
of narcotics and an improvised weapon. Moreover, Vigil admitted
to a police officer that he had given heroin to J.B.

¶24 Thus, while J.B.’s testimony formed the basis of the case
against Vigil, her testimony was corroborated by other evidence.8
In fact, the only charge Vigil was acquitted of—robbery—was also
the only charge that rested solely on the testimony of J.B. Thus,
other evidence at least inferentially corroborated J.B.’s testimony on
all key points.

6. Vigil points to testimony that J.B.’s genital bruising could also
have been consistent with consensual sex. However, no one
testified that Vigil and J.B. engaged in consensual sex.

7. The laboratory technician who processed the recovered DNA
placed the approximate odds of a source other than Vigil at
approximately one in 17 quadrillion (17,000,000,000,000,000).

8. Vigil does not challenge the testimony of any witness other than
J.B.

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¶25 We turn next to the “extent of cross‐examination otherwise
permitted.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). As
explained above, Vigil cross‐examined J.B. about almost all of her
testimony. He was prevented from cross‐examining her only about
the two facts stipulated to—that J.B. visited Witness’s
neighborhood the night before trial and that J.B.’s earlier testimony
about her whereabouts that night was false. Vigil was thus
permitted extensive cross‐examination of J.B.

¶26 Another factor in our analysis is “the overall strength of the
prosecution’s case.” Id. We agree with Vigil that J.B.’s credibility
was the linchpin of the State’s case. But this was not a mere
“he‐said‐she‐said credibility contest between the alleged
perpetrator and the victim” such as a “rape case where the sole
issue at trial is consent.” State v. Lenkart, 2011 UT 27, ¶ 42,
262 P.3d 1. As explained above, J.B.’s testimony on key points was
corroborated by the testimony of other witnesses, scientific
evidence, or both. For example, DNA evidence corroborated her
version of events and contradicted Vigil’s statement to police that
he had not engaged in sexual activity with J.B. Thus, while the
State’s case was far from overwhelming and J.B.’s credibility was
challenged at trial, the evidence as a whole supports the jury’s
verdict.

¶27 After considering the factors enumerated in Van Arsdall, we
conclude that any Confrontation Clause error by the trial court in
denying Vigil’s request to cross‐examine J.B. a third time was
harmless beyond a reasonable doubt. Specifically, J.B.’s testimony
was important to the case but was also corroborated by other,
uncontested evidence; Vigil was permitted to cross‐examine J.B.
about the large majority of her testimony; the denied cross‐
examination would likely have been cumulative; the jury was
made aware of the untruthfulness of J.B.’s testimony by stipulation;
and the State’s case was relatively strong. See Van Arsdall, 475 U.S.
at 684.

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II. Motion for New Trial

¶28 Vigil also contends that the trial court erred when it denied
his motion for a new trial. The Utah Rules of Criminal Procedure
provide that a “court may . . . grant a new trial in the interest of
justice if there is any error or impropriety which had a substantial
adverse effect upon the rights of a party.” Utah R. Crim. P. 24(a).
For the purposes of our analysis in Part I, we assumed, without
deciding, that an error occurred. However, we concluded that any
error was harmless beyond a reasonable doubt. It follows that an
error that is harmless beyond a reasonable doubt cannot have had
a “substantial adverse effect upon the rights of a party.” See id.
Consequently, any possible error in denying Vigil’s motion for new
trial was harmless.

CONCLUSION

¶29 Vigil was able to cross‐examine J.B. about every fact
adduced from her at trial except her false statement regarding her
whereabouts on the night before trial. Vigil has not shown that the
trial court’s decision not to recall J.B. to the stand resulted in the
exclusion of substantive evidence nor are we convinced that he was
prevented from fully arguing that J.B.’s perjuries tainted her
credibility as a witness. Moreover, while J.B.’s testimony was
important to the case against Vigil, it was corroborated by the
testimony of other witnesses. Therefore, after considering the Van
Arsdall factors, we conclude that any Confrontation Clause error
was harmless beyond a reasonable doubt. And because any
underlying error was harmless beyond a reasonable doubt, any
error in denying Vigil’s motion for a new trial was likewise
harmless.

¶30 Affirmed.

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