2015 UT App 89

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

DAVID DENG AKOK,

Defendant and Appellant.

Opinion

No. 20130498-CA

Filed April 16, 2015

Third District Court, Salt Lake Department

The Honorable Ann Boyden

No. 121908776

Nathalie S. Skibine and Scott A. Wilson, Attorneys

for Appellant

Sean D. Reyes and Deborah L. Bulkeley, Attorneys

for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES

MICHELE M. CHRISTIANSEN and KATE A. TOOMEY concurred.

ORME, Judge:

¶1 Defendant David Deng Akok appeals his conviction for

rape, a first degree felony. See Utah Code Ann. § 76-5-402

(LexisNexis 2012). We reverse his conviction and remand for a new

trial.
State v. Akok

BACKGROUND1

¶2 In 2012, Defendant and his codefendant, John Atem Jok,

accompanied a friend to N.C.’s apartment. That evening, after 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 the codefendant touching her breasts under her shirt

and bra. N.C. pushed the codefendant’s hands away and told him

to stop, which he did. The codefendant, 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 the codefendant stopped touching N.C., Defendant

stated that he had “to have sex for 24 hours with [N.C.], and would

have fun with this girl.” Defendant started touching N.C.’s breasts

and then he pulled her pants and underwear down. N.C. pulled

her clothes up, but Defendant pulled them down again. Defendant

then used both hands to hold N.C. down as he put his penis in her

vagina. N.C. told Defendant, “Please, no” and “stop,” but he held

her down while having sexual intercourse with her until “he was

done.” Defendant told N.C. that he wanted her to go to his house

and sleep in his bed, but she refused.

¶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. Akok

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

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

the police and reported that the men were trespassing.

¶6 The police arrived and handcuffed Defendant, who was

intoxicated to the point that he could not stand up on his own, and

took both him and the codefendant 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. She was examined by a sexual assault nurse, who

concluded that N.C.’s injuries were consistent with forcible digital

penetrationandforcible sex but could not conclusively confirm that

N.C. had been sexually assaulted. The examination also disclosed

that N.C. had semen in her vagina, which tests later confirmed

matched Defendant’s genetic profile.

¶7 Defendant was charged with rape, a first degree felony, and

intoxication, a class C misdemeanor. See Utah Code Ann. §§ 76-5- 2

402, 76-9-701 (LexisNexis 2012). Defendant and the codefendant

were tried together. At trial, Defendant testified that he and N.C.

had consensual sex in the back seat of his car after he, the

codefendant, and N.C. went to buy alcohol. He stated that he then

began drinking heavily, fell asleep in N.C.’s apartment, and was

still severely intoxicated when the police arrived the next morning.

¶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.

2. Defendant was also charged with forcible sexual abuse, see Utah

Code Ann. § 76-5-404 (LexisNexis 2012), but that charge was

dismissed before trial.

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State v. Akok

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

Defendant’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 improper and

prejudicial. The codefendant joined in Defendant’s motion. The

trial court denied the motion. Defendant’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 The trial court called the jurors back into the courtroom. It

did not give the jurors the specific admonition that Defendant

requested. Rather, the court admonished the jurors that they could

only consider the evidence before them and that the attorneys’

opening statements and closing arguments were not evidence.

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

The trial court then explained to Defendant’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.” Defendant’s counsel objected to the trial court’s “partial

admonishment.” The jury deliberated for a little over four hours

and convicted Defendant of both rape and intoxication. Defendant

appeals only the rape conviction.

ISSUE AND STANDARD OF REVIEW

¶11 On appeal, Defendant argues that theprosecutor committed

misconduct during his closing argument and that the trial court

should have mitigated the prosecutor’s misconduct by issuing

Defendant’s requested curative admonition. We 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,

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State v. Akok

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.

State v. Peters, 796 P.2d 708, 712 (Utah Ct. App. 1990) (citation and

internal quotation marks omitted). “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. Cummins, 839 P.2d 848, 852 (Utah Ct.

App. 1992). In addition, “because the trial court is in the best

position to determine the impact of a statement upon the

proceedings, its rulings . . . will not be overturned absent an abuse

of discretion.” Id.

ANALYSIS

¶12 In considering the prosecutor’s statement, we first analyze

whether it “call[ed] to the attention of the jury a matter it would

not be justified in considering in determining its verdict.” State v.

Peters, 796 P.2d 708, 712 (Utah Ct. App. 1990) (citation and internal

quotation marks omitted). Second, we analyze 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.” Id. (citation and internal quotation marks

omitted).

I. Improper Statement

¶13 “In our judicial system, the prosecution’s responsibility is

that of a minister of justice and not simply that of an advocate,

which includes a duty to see that the defendant is accorded

procedural justice and that guilt is decided upon the basis of

sufficient evidence.” State v. Todd, 2007 UT App 349, ¶ 17, 173 P.3d

170 (citation and internal quotationmarksomitted).Therefore, “the

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State v. Akok

conduct of the prosecutor at closing argument is [appropriately]

circumscribed by the concern for the right of a defendant to a fair

and impartial trial.” Id.(alteration in original) (citation and internal

quotation marks omitted). Accordingly, “while prosecutors must

have the freedom to present closing argument with logical force,

they must also act within the constraints imposed upon their

office.” Id. ¶ 18.

¶14 In this case, during the prosecutor’s rebuttal, he told the

jury:

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.

Defendant argues that this statement was improper because the

“prosecutor’s remark . . . appealed to the jurors’ emotions and

diverted their attention from their legal duty to determine guilt

impartially.” We agree.3

¶15 In State v. Wright, 2013 UT App 142, 304 P.3d 887, the

prosecutor’s final statement to the jury during the rebuttal phase

of closing arguments was “You have the power to make that [the

abuse] stop.” Id. ¶ 41. We noted that the prosecutor’s statement did

not rebut any statements made by the defendant; rather, the

statement called on the jury “to assume the responsibility of

ensuring [the victim’s] safety.” Id. Ultimately, we determined that

the prosecutor’s statement was improper because it “appeal[ed] to

the jurors’ emotions by contending that the jury ha[d] a duty to

protect the alleged victim—to become her partisan—which

3. Because the prosecutor agreed to a curative instruction, the State

assumes in its brief, without conceding, that the prosecutor’s

statement was improper.

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State v. Akok

divert[ed] their attention from their legal duty to impartially apply

the law to the facts.” Id.

¶16 Here, the prosecutor’s statement during the rebuttal portion

of closing arguments—“They took advantage of a very vulnerable

victim. Don’t let them take advantage of it again.”—similarly

appealed to the jurors’ emotions. The statement suggested to the

jurors that they had a duty to protect N.C., or perhaps women

generally, from Defendant and the codefendant. And it suggested

that an acquittal would allow Defendant and the codefendant to

take advantage of N.C. or other women again. In other words, the

statement called on the jury to “assume the responsibility of

ensuring [N.C.’s] safety.” See id. As we determined in Wright, such

statements divert the jury’s attention from its legal duty to

impartially apply the law to the facts. See id. Accordingly, we

conclude that the prosecutor’s statement was improper and called

the jurors’ attention to matters they were not justified in

considering in reaching their verdict. See Peters, 796 P.2d at 712.

II. Prejudice

¶17 We now consider the second step of the prosecutorialmisconduct analysis, i.e., whether, under the facts of this case, the

error was “substantial and prejudicial such that there is a

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

more favorable result” for Defendant. Id. (citation and internal

quotation marks omitted). In making this assessment, “we are

mindful that [a] criminal conviction is not to be lightly overturned

on the basis of a prosecutor’s comments standing alone.” State v.

Todd, 2007 UT App 349, ¶ 31, 173 P.3d 170 (alteration in original)

(citation and internal quotation marks omitted). Rather, improper

comments by the prosecutor require reversal only if they

“substantially affected the defendant’s right to a fair trial.” Id.

(citation and internal quotation marks omitted). “That threshold is

met when the likelihood of a different outcome [is] sufficiently high

to undermine [our] confidence in the verdict.” State v. Thompson,

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State v. Akok

2014 UT App 14, ¶ 83, 318 P.3d 1221 (alterations in original)

(citation and internal quotation marks omitted).

¶18 Defendant argues that there is a reasonable likelihood that

he would have been acquitted if not for the prosecutor’s statement

and that, at a minimum, the trial court should have mitigated the

prosecutor’s misconduct by issuing the specific curative instruction

Defendant requested and to whichtheprosecutor had no objection.

We agree.

¶19 The prejudice prong of prosecutorial-misconduct analysis

requires “consideration of the circumstances of the case as a

whole.” State v. Troy, 688 P.2d 483, 486 (Utah 1984). In undertaking

this analysis, we look at the evidence of the defendant’s guilt,

“whether defense counsel addressed the improper statements

during closing argument and the prosecution then ‘restricted his

surrebuttal comments to the evidence and made no further

mention of’ the improper comments,” and “whether the trial court

gave a curative instruction admonishing the jury to

‘dispassionately consider and weigh the evidence’ and instructing

them ‘not to consider the statements of counsel as evidence.’” Todd,

2007 UT App 349, ¶¶ 33–34 (quoting State v. Dunn, 850 P.2d 1201,

1225 (Utah 1993)).

A. Evidence of Defendant’s guilt

¶20 In determining whether there was prejudice, it is

appropriate to look at the evidence of Defendant’s guilt.

If proof of [D]efendant’s guilt is strong, the

challenged conduct or remark will not be presumed

prejudicial. Likewise, in a case with less compelling

proof, [Utah courts] will more closely scrutinize the

conduct. If the conclusion of the jurors is based on

their weighing conflicting evidence or evidence

susceptible of differing interpretations, there is a

greater likelihood that they will be improperly

influenced through remarks of counsel.

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Troy, 688 P.2d at 486 (citation and internal quotation marks

omitted).

¶21 Here, there was not overwhelming proof of Defendant’s

guilt. The State’s case relied heavily upon N.C.’s testimony that

Defendant raped her, which Defendant denied. Although

Defendant’s semen was found inside N.C.’s vagina, Defendant

testified that he and N.C. had consensual sex in his car after they

drove to the store to buy alcohol. The nurse also testified that while

N.C.’s injuries were consistent with rape, there was “no way to tell

definitively” from N.C.’s injuries if they resulted from consensual

or nonconsensual contact. Consequently, “the jurors were tasked

with weighing [the] conflicting evidence and deciding who was

telling the truth” as between Defendant and N.C. See Thompson,

2014 UT App 14, ¶ 84. Inviting the jury to tip the credibility balance

in a way that would prevent Defendant and the codefendant from

revictimizing N.C. provided the jurors with a way to avoid their

ultimate—possibly difficult—responsibility, to the potential

prejudice of Defendant. In this case, the jury could have gone either

way based on the evidence presented at trial. Thus, there is a

“greater likelihood” that the jury was influenced by the

prosecutor’s improper statement. See Troy, 688 P.2d at 486.

B. Defense counsel’s inability to address the improper

statement

¶22 Generally, if the prosecutor makes an improper comment

during his initial closing argument, “defense counsel can

ameliorate the effects of the comment by discussing the

impropriety with the jurors.” State v. Todd, 2007 UT App 349, ¶ 41,

173 P.3d 170. But here, the prosecutor’s improper statement came

during the rebuttal phase of his closing argument, and defense

counsel did not have the opportunity to address the prosecutor’s

improper statement in the ordinary course or to ameliorate any

harmful effects of the statement. See United States v. Holmes, 413

F.3d 770, 776 (8th Cir. 2005) (“It is particularly disturbing that the

comments were made during the rebuttal phase of closing

argument” when “[d]efense counsel was left with no opportunity

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State v. Akok

to rebut the allegations and the jury heard the remark immediately

before deliberations.”). As the Eighth Circuit has noted, “[t]he

potential for prejudice isgreat during closing arguments, especially

when the defense has no opportunityfor rebuttal.” Id.Accordingly,

because defense counsel was unable to respond to the prosecutor’s

improper statement, the potential for prejudice was heightened in

this case.

C. The trial court’s curative admonition

¶23 “[C]urative instructions are a settled and necessary feature

of our judicial process and one of the most important tools by

which a court may remedy errors at trial.” State v. Harmon, 956 P.2d

262, 271 (Utah 1998). However, the Utah Supreme Court has

recognized that curative instructions are not a “cure-all.” Id. at 273.

Indeed, “[s]ome errors may be too prejudicial for curative

instructions to mitigate their effect, and a new trial may be the only

proper remedy.” Id. 

¶24 In this case, after the parties gave their closing arguments,

the jury left the courtroom and Defendant objected to the “last

statement of the prosecutor . . . do not make the victim a victim

again,” and he moved for a mistrial. The trial court denied

Defendant’s motion, stating that it had “clearly instructed [the jury]

that opening statements and closing arguments are the statements

of the attorneys and that they are giving those statements from

their perspective and what they are advocating.” Defendant then

requested a specific admonition to the jury “that they are not to

consider that statement by the prosecutor.” The prosecutor

expressly stated that he had no objection to Defendant’s requested

admonition. In that posture, the path of least resistance is for the

trial court to simply give the agreed-upon admonition. Instead,

when the jury came back into the courtroom, the trial court gave

what it termed a “partial admonishment” to the jury:

I am going to admonish you a couple of things

then because we are going to be having a longer

recess. . . . [I]t is important . . . as you deliberate that

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State v. Akok

you remember my instructions that you make your

decisions based upon the evidence that is presented

at trial.

You remember my admonition to you that the

closing arguments . . . that are fresher [in] your mind

are the statements of the attorneys and that . . . their

arguments have been made from the perspective of

the client that they are representing[,] that those

arguments are made for the purpose of being

persuasive but they are not a statement of

instruction, they are not a statement of the law[,] and

they are not the statement of evidence.

You need to look to your collective memories

of what the evidence is and to follow the laws in the

instruction and to not take into—to not take any

comment made by the attorney whether it’s a

[reflection of] the defendants or whether it’s a

reflection of the witnesses that have testified at trial.

You must look to the evidence and not accept as

evidence any characterization or recollection on the

witnesses or the parties in this case.

¶25 After reviewing the trial court’s admonition to the jury, we

cannot say that it adequately dealt with the prosecutor’s improper

statement. Although the trial court generally admonished the jury

that the closing arguments were not evidence and that the jury was

to base its decision solely on the evidence, the court’s admonition

did not neutralize the prejudicial effect of the prosecutor’s

statement for two reasons.

¶26 First, the trial court’s admonition did not vary in any

significant manner from the general instructions it gave the jury

both before trial and before closing arguments. For example, before

the trial began, the trial court gave several preliminary instructions

to the jury, one of which instructed the jury to base its decision

solely on the law and the evidence presented in court and informed

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State v. Akok

it that closing arguments are not evidence. Before closing 4

arguments, the trial court read to the jury the remaining jury

instructions, two of which instructed the jury that the lawyers’

arguments were not evidence. Jury instruction fifteen read: “[B]ase

your decision only on the evidence that you saw and heard here in

court . . . . The lawyers[’] statements and arguments are not

evidence.” And jury instruction forty-three stated:

When the lawyers give their closing arguments, keep

in mind that they are advocating their views of the

case. What they say during their closing arguments

is not evidence. If the lawyers say anything about the

evidence that conflicts with what youremember, you

are to rely on your memory of the evidence. If they

say anything about the law that conflicts with these

instructions, you are to rely on these instructions.

¶27 Second, and most importantly,the court’s admonition failed

to explicitly call the jurors’ attention to the prosecutor’s specific

improper statement. Rather than giving an admonition that was

specifically tailored to the prosecutor’s improper statement like

Defendant requested (and to which the prosecutor had no

objection), the trial court simply repeated a variation of the

boilerplate instructions the jury had heard at least three times

4. Specifically, the trial court told the jury:

The lawyers will present and try to persuade

you to decide the case in one way or the other. . . . Do

not be influenced by what you think our opinions

might be, make your decisions based on the law

given in my instructions and on the evidence

presented in court. . . . You must base your decision

only on the evidence. Evidence usually consists of

the testimony and exhibits presented at trial. . . .

What the lawyers say is not evidence. For example,

their opening statements and closing arguments are

not evidence.

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before. Cf. Harmon, 956 P.2d at 269–71 (concluding that the trial

court’s “forceful, explicit instruction to the jury to disregard the

‘totally and absolutely inappropriate’ comment” effectively cured

the serious error that occurred when a deputy testified as to the

defendant’s credibility).

¶28 With the exception of the trial court’s statement that it

thought that its partial admonishment “was appropriate under the

circumstances,” we are left without explanation as to why the trial

court did not give Defendant’s specific requested admonition.

Given that the prosecutor had no objection to Defendant’s

requested admonition, the trial court’s decision to give an

admonition different from the one requested seems, absent some

explanation, rather arbitrary. The trial court had the opportunity

to dispel the emotional force of the State’s argument that an

acquittal would allow Defendant and his codefendant to take

advantage of N.C. or others again, and yet, for reasons unknown,

the court chose not to do so. We think it appropriate that in a

situation such as this, where a defendant requests a specific

curative admonition that is not contrary to law and to which the

prosecutor has no objection, the trial court should simply give the

curative admonition as requested. That is the safest path for the

trial court to take. Of course, the trial court may perceive some

problem with the stipulated admonition that counsel have missed.

In such a situation, the trial court should explain the reasoning

behind its decision to give an admonition different from the one

requested and give counsel an opportunity to respond.5

5. We tend to defer to trial courts because we have a cold record

and because trial courts are in the best position to observe the

jury’s reaction to an improper statement. See Doug Jessop Constr.,

Inc. v. Anderton, 2008 UT App 348, ¶ 15, 195 P.3d 493 (“A trial judge

is in the best position to . . . derive a sense of the proceeding as a

whole, something an appellate court cannot hope to garner from a

coldrecord.”)(omissioninoriginal) (citation and internal quotation

marks omitted). However, because we were not in the courtroom,

if a trial court’s determination on whether to give a curative

(continued...)

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¶29 In this case, the trial court neither gave the stipulated

admonition nor explained its specific reasoning for improvising

rather than giving the agreed-upon admonition. While the trial

court’s admonition might be sufficiently curative in some

situations, we do not believe it was sufficient in this case because

it failed to specifically address the prosecutor’s improper

statement. Cf. Harmon, 956 P.2d at 271. Accordingly, we conclude

that the trial court’s watered-down admonition did not adequately

cure the prejudicial effect of the prosecutor’s improper statement

and that Defendant was prejudiced by the remark.

CONCLUSION

¶30 The prosecutor’s final statement in closing argument

appealed to the jurors’ emotions, and it was therefore improper

and constituted prosecutorial misconduct. Moreover, when the

prosecutor’s statement is considered in conjunction with the

conflicting evidence of Defendant’s guilt, defense counsel’s

inability to address the prosecutor’s improper statement, and the

court’s nonspecific curative admonition, our confidence in the

verdict is undermined. We are convinced that there is a reasonable

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

statement, there would have been a more favorable result for

Defendant. Accordingly, we reverse Defendant’s rape conviction

and remand for a new trial on that charge.

5. (...continued)

admonition and on what kind of curative admonition to give turns

on some factor that we cannot perceive from the record, it is

incumbent on the trial court to explain the reasoning behind its

decision.

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