The Appellate Group

State v. Nunez-Vasquez

State v. Nunez-Vasquez, 2020 UT App 98 (Christiansen Forster, J.)


A man and the defendant got drunk together one evening. The man passed out. When he woke up, the man found his pants around his ankles and lube around his anus. He called the cops. The defendant spoke with the officers and told them that he liked to have sex with straight men and also that the man consented. Before trial, the defendant’s attorney tried to admit evidence that the man had expressed sexual interest in other men, making it more likely that consent was granted in this case. The court refused to admit that evidence under rule 412 of the Utah Rules of Evidence unless the issue of his straightness was raised by the victim at trial. After a jury trial, the defendant was convicted of forcible sodomy. The Utah Court of Appeals affirmed the district court, holding:

  • The district court did not abuse its discretion by excluding evidence of the man’s sexuality under rule 412 of the Utah Rules of Evidence. The issue of the man’s sexuality was never presented at trial. Statements that the man “definitely would have never” flirted with the defendant because he “did not do such behavior” are not statements about the man’s sexual orientation.
  • Trial counsel did not provide ineffective assistance of counsel by failing to support his rule 412 motion with a detailed proffer. After a rule 23B hearing, the district court stated that the new evidence would not have changed the outcome of its ruling. The defendant cannot, therefore, show prejudice.
  • The trial court did not abuse its discretion in declining to give the defendant’s mistake-of-fact-as-to-consent jury instructions because the court properly instructed the jury on the applicable law when read as a whole, including an instruction on recklessness.
  • Trial counsel was not ineffective when he failed to argue that the rules of evidence permitted additional evidentiary proffers because the defendant did not show how the additional evidence would have impacted the evidentiary picture as a whole.
  • Trial counsel was not ineffective when he failed to move to exclude the defendant’s statements that he had a “thing for straight guys” and that it was a “challenge, getting a straight guy.” The statements were highly probative to show whether the defendant was reckless regarding the man’s consent. The statements were not unfairly prejudicial because the jury watched the interrogation and got context from the recording.
  • Trial counsel was not ineffective when he did not move to exclude the nurse’s testimony that she was not concerned about the man’s lack of memory because lack of memory is an aspect of trauma; that testimony  did not violate rule 403 of the Utah Rules of Evidence, and the nurse did not testify about the man’s veracity.
  • Invited error: Trial counsel invited error, if any, when he said “okay” and “the State might have a point there.”

Read the full court opinion