2015 UT App 90

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

JOHN ATEM JOK,

Defendant and Appellant.

Memorandum Decision

No. 20130493-CA

Filed April 16, 2015

Third District Court, Salt Lake Department

The Honorable Ann Boyden

No. 121908775

Richard G. Uday, Attorney for Appellant

Sean D. Reyes and Deborah L. Bulkeley, Attorneys

for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision,

in which JUDGES MICHELE M. CHRISTIANSEN and KATE A. TOOMEY

concurred.

ORME, Judge:

¶1 Defendant John Atem Jok appeals his convictions on two

counts of forcible sexual abuse, second degree felonies, and one

count of intoxication, a class C misdemeanor. See Utah Code Ann.

§§ 76-5-404, 76-9-701 (LexisNexis 2012). We reverse his convictions

and remand for a new trial.
State v. Jok

¶2 In 2012, Defendant and his codefendant, David Deng Akok,

accompanied a friend to N.C.’s apartment. That evening, after 1

their friend went to work, Defendant, the codefendant, and N.C.

left to purchase alcohol. The group returned to N.C.’s apartment,

where, joined by N.C.’s roommate, they drank and listened to

music.

¶3 N.C.’s roommate went to bed around 1:00 a.m. Sometime

thereafter, N.C. fell asleep on the couch in the living room. She

awoke to find Defendant touching her breasts under her shirt and

bra. N.C. pushed Defendant’s hands away and told him to stop,

which he did. Defendant, however, then moved one of his hands

under N.C.’s pants and underwear and pushed his finger into her

vagina, causing “[s]harp pain.”

¶4 After Defendant stopped touching N.C., his codefendant

started touching N.C.’s breasts and then pulled her pants and

underwear down. N.C. pulled her clothes up, but the codefendant

pulled them down again. The codefendant then used both hands

to hold N.C. down as he put his penis in her vagina and began

intercourse. While the codefendant was on top of N.C., Defendant

told N.C., “It’s okay.” N.C. told the codefendant, “Please, no” and

“stop,” but he continued, while holding her down, until “he was

done.”

¶5 N.C. then got up, went to her roommate’s room, and told

her what had happened. N.C.’s roommate asked her if she wanted

to call the police, and N.C. said yes. N.C.’s roommate also told N.C.

to tell Defendant and the codefendant to leave. N.C. went to the

living room and told the men to leave, but they refused. N.C. told

her roommate that the men would not leave, so her roommate

1. “On appeal, we review the record facts in a light most favorable

to the jury’s verdict and recite the facts accordingly.” State v.

Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (citation and internal

quotation marks omitted).

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State v. Jok

went to the living room with N.C. and told the men to leave, but

again, the men refused. Around 6:30 a.m., N.C.’s roommate called

the police and reported that the men were trespassing.

¶6 When the police arrived, Defendant, who was now outside,

walked toward them. He was stumbling, had a hard time walking

in a straight line, smelled of alcohol, and had bloodshot eyes. The

police took both men to the police station. N.C. gave a statement to

the police and filled out a witness report regarding what had

happened to her. After giving her statement, N.C. went to the

hospital. A sexual assault nurse examined her. N.C.’s injuries were

consistent with forcible digital penetration and forcible sex, but the

nurse could not conclusively confirm that N.C. had been sexually

assaulted. It was later determined that semen matching the

codefendant’s genetic profile was in N.C.’s vagina.

¶7 Defendant was charged with two counts of forcible sexual

abuse, second degree felonies, and one count of intoxication, a class

C misdemeanor. See Utah Code Ann. §§ 76-5-404, 76-9-701

(LexisNexis 2012). Defendant and the codefendant were tried

together. Before the trial began, Defendant moved to sever his trial

from the codefendant’s trial, but the trial court denied the motion.

Defendant did not testify at trial, but as his counsel made clear

during opening statement and closing argument, his defense was

that he had not touched N.C.

¶8 At the end of the rebuttal portion of the prosecutor’s closing

argument, the prosecutor told the jury, with our emphasis:

And when you look at the totality of the evidence it

is very clear that [Defendant and the codefendant]

engaged in sexual intercourse and touched her

without her consent. They took advantage of a very

vulnerable victim. Don’t let them take advantage of it

again. Thank you.

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State v. Jok

After closing arguments the jury left the courtroom. At that time,

the codefendant’s counsel objected to the “last statement of the

prosecutor . . . do not make the victim a victim again” and moved

for a mistrial on the ground that the statement was prejudicial.

Defendant joined in the codefendant’s motion. The trial court

denied the motion. The codefendant’s counsel then requested a

specific admonition to the jurors “not to consider that statement by

the prosecutor,” and the prosecutor stated that he had “[n]o

objections to that.”

¶9 Thereafter, the trial court called the jurors back into the

courtroom. The trial court did not give the jurors the specific

admonition that the codefendant requested and to which the

prosecutor had no objection. Rather, the court gave what it termed

a “partial admonishment” to the jury.

¶10 After the court’s admonition, the jury again left the room.

The trial court then explained to the codefendant’s counsel: “I did

make a partial admonishment . . . . I did not do exactly what you

had asked but I do feel that the admonishment I gave them was

appropriate under the circumstances so that was part of my

ruling.” The codefendant’s counsel objected to the trial court’s

“partial admonishment.” The jury deliberated for a little over four

hours and convicted Defendant as charged. Defendant appeals.

2

¶11 Defendant argues that the prosecutor’s improper statement

during the rebuttal portion of his closing argument prejudiced his

right to a fair trial. This issue, regarding the prosecutor’s same

improper statement, was resolved by our opinion in State v. Akok,

2015 UT App 89. In that case, we determined that the prosecutor’s

statement was both improper and prejudicial, and that the

admonishment was insufficient to cure the problem. See id. ¶¶ 16,

29. Accordingly, we concluded that there was a reasonable

2. The codefendant was also convicted as charged. He filed a

separate appeal, which we also resolve today. See State v. Akok, 2015

UT App 89.

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State v. Jok

probability that, in the absence of the prosecutor’s improper

statement, there would have been a more favorable result for the

codefendant. See id. ¶ 30; State v. Gardner, 789 P.2d 273, 287 (Utah

1989) (noting that appellate courts will reverse on the basis of

prosecutorial misconduct if a defendant has shown that “the

actions or remarks of counsel call to the attention of the jury a

matter it would not be justified in considering in determining its

verdict and, if so, under the circumstances of the particular case,

whether ‘the error is substantial and prejudicial such that there is

a reasonable likelihood that in its absence, there would have been

a more favorable result for the defendant’”). We therefore reversed

the codefendant’s conviction and remanded for a new trial. See

Akok, 2015 UT App 89, ¶ 30. For the same reasons stated in our

opinion in Akok, we also reverse Defendant’s convictions and

remand for a new trial.

¶12 Defendant also contends that the trial court erred when it

failed to grant his severance motion. Because resolution of

Defendant’s prosecutorial-misconduct claim is dispositive of this

appeal, we need not definitely decide the merits of Defendant’s

severance argument. However, because it will likely arise againon 3

3. Additionally, Defendant argues that his defense counsel’s

failure to assert the affirmative defense of voluntary intoxication

constitutedineffective assistance of counsel. Specifically,Defendant

argues that because he was intoxicated on the night he was with

N.C., “it is objectively reasonable to say that trial counsel should

have used [his] impairment as a defense.” We disagree.

Defense counsel’s failure to assert a voluntary-intoxication

defense was entirely consistent with her trial strategy. Defense

counsel argued during both her opening and closing that

Defendant did not touch N.C. and that N.C.’s versions of events

“just didn’t happen.” Therefore, had defense counsel presented a

voluntary-intoxication defense, it would have been wholly

inconsistent with Defendant’s position that he did not touch N.C.

Defense counsel may well have reasonably decided that she could

(continued...)

20130493-CA 5 2015 UT App 90
State v. Jok

remand, we briefly address it. See State v. James, 819 P.2d 781, 795

(Utah 1991) (“Issues that are fully briefed on appeal and are likely

to be presented on remand should be addressed[.]”).

¶13 The Utah Code allows for the joinder of defendants “if they

are alleged to have participated in the same act or conduct orin the

same criminal episode.” Utah Code Ann. § 77-8a-1(2)(b)

(LexisNexis 2012). “When two or more defendants are jointly

charged with any offense, they shall be tried jointly unless the court

in its discretion on motion or otherwise orders separate trials

consistent with the interests of justice.” Id. § 77-8a-1(2)(d). If the

trial court “finds a defendant . . . is prejudiced” by the joinder of

defendants it “shall . . . grant a severance of defendants, or provide

other relief as justice requires.” Id. § 77-8a-1(4)(a). “[T]he grant or

denial of severance is a matter within the discretion of the trial

judge, so we reverse a conviction only if the trial judge’s refusal to

sever . . . is a clear abuse of discretion in that it sacrifices the

defendant’s right to a fundamentally fair trial.” State v. Lopez, 789

P.2d 39, 42 (Utah Ct. App. 1990) (citation and internal quotation

marks omitted).

3. (...continued)

not credibly argue that perhaps Defendant did touch N.C. after all,

but that if he did, he was too drunk to know what he was doing.

Accordingly, we conclude that defense counsel’s performance was

not objectively deficient simply because she chose not to assert the

affirmative defense of voluntary intoxication. See Strickland v.

Washington, 466 U.S. 668, 687 (1984) (holding that to prove

ineffective assistance of counsel, a defendant must show both “that

counsel’s performance was deficient” and “that the deficient

performance prejudiced the defense”); State v. Campos, 2013 UT

App 213, ¶ 34, 309 P.3d 1160 (“[A]ny election between inconsistent

defenses [is] a legitimate exercise of trial strategy rather than

ineffective assistance of counsel.”) (alterations in original) (citation

and internal quotation marks omitted).

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State v. Jok

¶14 In this case, we are not prepared to conclude that the trial

court abused its discretion in the first instance. However, with the

benefit of hindsight, it would appear to us that the better course on

remand is for the defendants to have separate trials. Although we

are largely persuaded by the State’s argument that the defendants’

trial theories were not so inconsistent with one another as to

necessarily require separate trials, given the prosecutor’s apparent

inability or unwillingness to differentiate between the two

defendants during the first trial, we conclude that separate trials

appear to be in order.

4

¶15 For the reasons discussed in State v. Akok, 2015 UT App 89,

Defendant’s convictions are reversed and the case is remanded for

a new trial. If a timely motion for severance is made on remand, it

merits the trial court’s careful consideration.

4. During the trial, the prosecutor frequently lumped the two

defendants together. Although it was not even alleged that

Defendant had any form of intercourse with N.C., the prosecutor’s

statements often attributed the act of rape to Defendant. For

example, in his opening statement the prosecutor stated, with our

emphasis: “She went to the hospital because she was raped and

sexually assaulted by these two individuals early in the morning of

her birthday.” And during closing arguments the prosecutor

stated, again with our emphasis: “And when you look at the

totality of the evidence it is very clear that they engaged in sexual

intercourse and touched her without her consent. They took

advantage of a very vulnerable victim.” 

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