2015 UT App 89

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### T H E 

### U TA H 

### C O U RT O F 

### A P P E A L S

S TAT E OF U TAH

, Plainti ff and Appellee,

v. D AVI D D E N G A K

O K , Defendan t and Appellant.
Opin i on No. 20130498-CA Filed Apri l 16, 2015

Thi rd Di stric t Co urt, S alt Lake Depart ment The Honorable Ann Boyden No. 121908776

Nathali e S. S kib ine and ScottA. Wi lson, Atto rneys

for Appellant Sean D. Reyes and Deborah L. Bulkeley, At tor neys

for Appellee

J UD G E G RE G OR

Y K. O R M Eauthore d thi s Opini on, i n whi ch J UD G E S M I C H E L E M. C HRI S T I AN S E N and K AT E A. T OOM E Y

concu rr ed.

ORM E, Judge:

¶1 Defendan t Davi d Deng Ako k ap peals hi s convic tion for rape, a fi rst deg r e e felony. See Utah Code Ann. § 76-5-402 (Lexi sNexi s 2012). We rev erse hi s convic tion and remand for a new tr i al.State v. Akok

BACKGRO UND 1

¶2 In 2012, Defendant and hi s cod e fendant, John Atem Jok, accompan i ed a fri end to N.C.’s apartment. That evening, after their fri end went to work, Defendan t, the codefendant, and N.C. left to purchas e alcohol. The gr oup ret urned to N.C.’s apartment, where, jo ined by N.C.’s roo mmate, they dr ank and li stened to musi c.
¶3 N.C.’s ro o mm a t e went to bed aro und 1:00 a.m. So meti me there after, N.C. fell asleep o n the couch in the li ving ro om. She awoke to find the codefendant touching her breasts under her shi rt and bra. N.C. pushed the codefendant’s hands away and told hi m to stop, whi ch he di d. The codefendant, however , then moved one of hi s hands under N

. C

. ’ s pants and underwear and push ed hi s finger into her v agin a, caus ing “[s]h arp pain .”

¶4 After the codefendant stoppe d t ouching N.C., Defendan t stated that he had “to have sex for 24 hours wi th [N.C.], and would have fun wi th thi s girl.” Defendan t start ed touching N.C.’s breasts and then he pulled her pa nt s and underwear down. N.C. pulled her clothes up, but Defendan t pulled them down again

. Defendan t then used both hands to hold N.C. down as he put hi s peni s in her vag ina. N.C. told Defendan t, “P lease, no” an d “stop,” but he held her down whi le havin g sexual intercourse wi th her unti l “he was done.” Defendant told N.C. that he wanted her to go t o hi s hous e and sleep in hi s bed, b ut she refused.

¶5 N.C. then got up, we nt t o her ro ommate’s ro om, and told her what had happened

. N.C.’s ro ommate asked her i f she wanted to call the poli ce, and N.C. sai d yes. N.C.’s ro ommate also told N.C. to tell Defendan t and the codefendant to leave. N.C. went to the li ving ro om and told the men to leave, but they refused. N.C. told her ro ommate that the me n wo ul d not leave, so her ro ommate

1. “On appeal, we rev i ew the recor d facts in a li ght most favor able to the jury ’s ver di ct a nd reci te the facts accordingly.” State v. Holgate, 2 0 0 0 U T 7 4, ¶ 2, 10 P.3d 346 (ci tation and internal quotat i on marks omitted).

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went to the li ving ro om wi th N.C. and told the men to le a ve. Again, the men refused. Aro und 6:30 a.m., N.C.’s ro ommate called the polic e and repor ted thatthe men were tr espass ing.
¶6 The poli ce a rr i ved and handcuffed Defendan t, who was intox i cated to the poin t that he could not stand up on hi s own, and too k both hi m and the codefendant to the poli ce station. N.C. gav e
a statement to the poli ce and fi lled out a wi tness repo rt reg ardin g what had happened to her. After giving h er statement, N.C. went to the hospi tal

. She was examin ed by a sexual assault nurse, who conclu ded that N.C.’s injuries were consi stent wi th forcible di gital penetrat i on an d for c i

b l e s e x b u t c ou ld not conclu sively confi rm that N.C. had been sexually assau lted. The exami nati on al so di scl osed that N.C. had semen in he r vag ina, whi ch tests later confi rmed matched D efendant’s geneticprofile.

¶7 Defendan t was charged wi th rape, a fi rst degr ee felony, and intox i cati on, a clas s C mi sdemeanor. See Utah Code Ann. §§ 76-5- 2 402, 76-9-701 (Lexi sNexi s 2012). Defendan t and the codefe ndant

were tr i ed tog ether

. At tr i al, Defendan t t e sti fi ed that he and N.C. had consens ual sex in the back seat of his ca r after he, the codefendant, and N.C. went to buy alcohol. He stated that he then began drinkin g heavily, fell asleep in N.C.’s apartment, and was sti ll severe ly intox i cated when the poli ce arr i ved the next mornin g.
¶8 At the end of the rebuttal port i on of the prosecutor ’s closing arg ument, the prosecutor told t he jury , wi th our e mphas i s: And when you look atthe tot ali ty o f the evidenc e i t i s ver y clear that [Defendant and the co defendant] engaged in sexual intercour se and touched her wi thout her consent. They too k advanta ge of a very
v uln erable victim. Don’t let them take advanta ge of it again. Thank you.

2. Defendan t was also charged wi th forcible sexual abus e, see Utah Code Ann. § 76-5-404 (Lexi sNexi s 2012), but that charge was di smi ssed b efore t rial.

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After closing arg uments, the jury left the courtr oom. At that tim e, Defendan t’s couns el o bj e ct ed to the “last statement of the prosecutor

. . . do n ot make the vi cti m a vic tim again ” and moved for a mis tr i al on the gr ound that the stat ement was i mproper and prej udi ci al. The co d efendant jo ined in Defendan t’s motion. The tr i al court deni ed the motion. Defendan t’s couns el then requested

a speci fi c admoni tion to the juro rs “not to consi der that statement by the prosecutor,” and the prosecutor stated that he ha d “ [n ]o objections to that .”

¶9 The t rial court called the juro rs back into the courtr oom. It di d no t g ive the juro rs the speci fi c admoni tion that Defendan t requested. Rather , the court admoni shed the juro rs that they could only consi der the e v i dence before them and that the atto rneys’ openi ng statements and closing arg uments w ere no t ev i dence.

¶10 Af ter the court’s admoni tion, the jury left the ro om again

. The tr i al court then explain ed to Defendan t’s couns el: “I di d make

a partial admoni shm ent

. . . . I di d not d o exactly what you had asked but I do feel th at the admoni shm ent I gav e them was appropr i ate under the ci rcums tances so that was part of my ruling.” Defendan t’s couns el o bj e ct ed to the tr i al court’s “partial admoni shm ent.” The jury deliberated for a li ttle ov er fo ur ho urs and convic ted Defendan t of both rape and intox i cati on. Defendan t appeals only the rape conv i cti on.

ISS UE AND STANDARD OF REVIEW

¶11 On appeal, Defendan t a rgu e s th a t the p ro secu tor commi tte d mi scondu ct duri ng hi s closing arg ument and that the tr i al court should have mi tigated the prosecutor ’ s misconduct by i ssu ing Defendan t’s requested curati ve admoni tion. We wi ll rev e rse on the basi s of prosecutorial mi scondu ct i f a defendan t has shownthat

the acti ons or remark s of couns el call to the atte nti on of the jury a matter i t would not be justifi ed in consi dering in deter mining i ts ve r d i ct and, i f so,

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under the ci rcums tances of the pa r t icular case, whether the err or i s sub stanti al and prej udi ci al such that there i s a reasonable li kelih ood that, in its abse nce, there would have been a more favor able result.

State v. Peters , 796 P.2d 708, 712 (Utah Ct. App. 1990) (ci tation and internal quotat i on marks omi tte d). “In deter mining whether a given st a t ement consti tutes prosecutor i al mi scondu ct, the statement mus t be view ed in li gh t of the tot ali ty of the evidenc e presented at tr i al.” State v. Cum mins , 839 P.2d 84 8 , 852 (Utah Ct. App. 1992). In addi tion, “ because the tr i al court i s in the best posi tion to deter mine the i mp act of a statement upon the proceedings, i ts rulings

. . . wi ll not be ov ert urned absent an abus e of di screti on.” Id.

ANALYS IS

¶12 In consi dering t he prosecutor ’s stat ement, we fi rst analyze whether i t “call[ ed] to the atte nti on o f t he jury a matter i t would not be j usti fi ed in consi dering in d e t e r minin g i ts ver di ct.” State v. Peters , 796 P.2d 708, 712 (Utah Ct. App. 1990) (ci tation and internal quotat i on marks omi tte d). Second, we analyze whether “the err or i s sub stanti al and prej udi ci al such that the r e i s a reasonable li kelih ood tha t, in i ts absenc e, there would have been a more favor able result.” Id. (citati on and internal quotat i on marks omi tte d).
I. Impro per S tate ment
¶13 “In our judi ci al system, the prosecuti on’s respon sib i li ty i s t ha t of a mini ster of justic e and not si mply that of an advocate , wh ich inclu des a duty to see that the defendant i s accorde d procedural justic e and that gui lt i s deci ded upon the ba sis of suffi ci ent evidenc e.” State v. Todd, 2007 UT App 349, ¶ 17, 173 P.3d 170 (ci tation and internal quotat i on m a rk s om i tt e d )

. Therefor e, “the

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conduc t of the prosecutor at closing arg ument i s [appropriately] ci rcums cribed by the concern for t he right of a defendant to a fai r and i mpartial tr i al.” Id. (alterat i on in or i gin al) (ci tation and internal quotat i on mar k s omi tte d). Accor dingly, “whi le prosecutor s must hav e the freedom to present closing arg ument wi th logical force, they mus t also act wi thi n the constrain ts i mposed upo n t hei r offi ce.” Id. ¶ 18.

¶14 In thi s case, during the prosecutor ’s rebuttal, he told the jury :

And when you look at the t otality of t he evidenc e i t i s ver y clear t hat [Defendant and the codefendant] engaged in sexual intercour se and touched her wi thout her consent. They too k advant age of a ver y vulnerable vic tim . Don’t let t hem take adv antage of i t again. Th ank yo u.

Defenda nt a rg ues that thi s statement was i mproper becau se the

“ prosecutor ’s remark

. . . appealed to the juro rs’ emotio ns a nd di ver ted their atte nti on from their legal dut y t o deter mine gui lt i mpartially.” We agree. 3

¶15 In State v. Wright, 2013 UT App 142, 304 P.3d 887, the prosecutor ’s final statement to the ju r y during the rebuttal phase of closing arg uments w as “Y ou have the power to make that [the abus e] stop.” Id. ¶ 41. We noted that the prosecutor ’s statement di d not rebut any statements made by th e d efendant; rat her, the statement called on the jury “to assu me t he r esponsi bi li ty of ensuring [the vic tim ’s] safety.” Id. Ultim ately, we deter mined that the prosecutor ’s statement was i mproper becau se i t “appeal[ed] to the juro rs’ emotions by cont e nd ing that the jury ha[d] a duty to prot ect the alleged vict im— to become her partisan —whi ch

3. Becaus e the prosecutor agr eed to a curati ve instructi on, the St ate
assu me s in i ts bri ef, wi thout conceding, that the prosecutor ’s statement was i mproper

.

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di ver t[ed] their atte nti on from their legal duty to i mpartially apply the law to t he facts.” Id.

¶16 Here, the prosecutor ’s statemen t d u rin g the rebuttal port i on of closing arg uments—“They too k advantag e of a ver y vulnerable vic tim

. Do n’ t l et them take advantag e of i t again .”—si mi larly appealed to the juro rs’ emotions. The statement suggested to the juro rs that they had a duty t o p r o t e ct N.C., or perhaps women gener ally, from Defendan t and the codefendant. And i t suggested that an acqui ttal would allow Defendan t and the codefendant to take advantag e of N.C. or other women again

. In other words, the st a t e me nt called on the jury to “assu me the responsibi li ty of ensuring [N.C.’s] safety.” See id. As we deter mined in Wright, such statements di ver t the j ury’s atte nti on from i ts legal duty to i mpartially apply the law to the fa ct s. See id. Accordi ngly, we conclu de that the prosecutor ’s statement was i mproper and called the juro rs’ atte nti on to matter s they were not justifi ed in consi dering in reaching their ver di ct. See Peters , 796 P.2d at 712.
II. Prej udi ce
¶17 We now consi der the second step of the prosecutor i almi scondu ct analysi s, i .e., whether, u nder the facts of thi s case, the

err or was “sub stanti al and prej udi ci al such that there i s a reasonable li kelih ood that, in i ts absenc e, there would have been a
more favor able result” for Defendan t. Id. (ci tation and internal quotat i on marks omi tte d). In making thi s asses sment, “we are mindfu l that [a] cri minal convic tion i s not to be li ghtly ov ert urned

o n t he basi s of a prosecutor ’s comments standing alone.” State v
. Todd, 2007 UT App 349, ¶ 31, 173 P.3d 170 (a l t e r a t i on in or i gin al) (ci tation and internal quotat i on marks omi tte d). Rather, i mproper comments by the prosecutor require rev ersal only i f they “sub stanti ally affec ted the defendant’s right to a fai r tr i al.” Id. (ci tation and internal quotat i on marks omi tte d). “That threshold i s met when the li kelih oo d of a di fferent outcome [i s] suffi ci ently hi gh to undermin e [o ur] confi dence in the ver di ct.” State v. Thompson ,

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2014 UT App 14, ¶ 83, 3 1 8 P.3d 1221 (alterat i ons in or i gin al) (ci tation and internal quot ation marks omi tte d).

¶18 Defendan t ar gues that ther e i s a r easonable li kelih ood t hat he would have been acqui tte d i f not for the prosecutor ’s statement and t hat, at a mini mum, the tr i al court should have mi tigated the prosecutor ’s mi scondu ct by i ssu ing the s p e c i fi c cu rati ve instructi on Defendan t requested and to whi ch the prosecutor had no objection. We agr ee.
¶19 The prej udi ce prong of prosecutor i al-mi scon d uct analysi s
r e quir e s “consi derat i on of the ci rcums tances of the case as a whole.” State v. Troy

, 688 P.2d 483, 486 (Utah 1984). In undertaking thi s analysi s, we look at the evidenc e of the defendant’s gui lt, “whether defense couns el addressed the i mpro p er statements duri ng closing arg ument and the pro se cu t ion then ‘restr i cted hi s surrebuttal comments to the evidenc e and made no further menti on of’ the i mproper comments,” and “whether the tr i al court g a v e a cu r a t i v e i n s t r u c t i o n a d m o n i s h i n g t h e j u r y t o ‘di spas si onately consi der and wei gh the evidenc e’ and instructing them ‘not to consi der the statements of couns el as evidenc e.’” Todd, 2007 UT App 349, ¶¶ 33–34 (quoti ng State v. Dun n , 850 P.2d 1201, 1225 (Utah 1993)).

A. Eviden ce of Defen dant’s gui lt

¶20 In deter mining whether there was prej udi ce, i t i s appropr i ate t o loo k at t he evidenc e of Defendant’s gui lt.

I f proo f of [D] efendant’s gui lt i s stro ng, th e challen ged conduc t or remark wi ll not be presumed prej udi ci al. Li kewi se, in a case wi th less co mpelling proo f, [Utah courts] wil l more closely scrutini ze the conduc t. I f t he conclu si on of the juro rs i s based on their wei ghi ng confli cting e v idence or evidenc e
sus ceptible o f di ffering interpr etat i ons, there i s a gr eater li kelih ood that they wi ll be i mproper ly influ enced through r emarks of counsel.

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T r oy , 688 P.2d at 486 (ci tation and internal quotat i on mar k s omi tte d).

¶21 Here, there was not ov erwhelming proo f of Defendan t’s gui lt. The St ate’s case rel ie d heavily upon N.C.’s testim ony that Defendan t raped her, whi ch Defendan t deni ed

. A l though Defendan t’s semen was found insi de N.C.’s vag ina, De fendant testifie d t hat he and N.C. had consens ual sex in hi s car after they drov e to the stor e to buy alcohol. The nurse also testifi ed that whi le N.C.’s injuries were consi stent wi th rape, there was “no way to tell defini tively” from N.C.’s injuries i f they resulted from consens ual

or nonconsens ua l co ntact. Consequently, “the juro rs were tasked wi th wei ghin g [the] confli cting evidenc e and deci ding who was tellin g the tr uth” as be t ween Defendan t and N.C. See Thompson , 2014 UT App 14, ¶ 84. Inviting the jury to tip the credi bi li ty balanc e in a way that would prev ent Defendan t and the codefendant from

rev i cti mi zing N.C. prov i ded the juro rs wit h a way to avo i d their ulti mat e

— possi

bly di ffi cult—responsi bi li ty, to the potent i al prej udi ce of Defendan t. In thi s case, the jury could have gone ei ther way ba se d o n the evidenc e presented at tr i al. Thus, there i s a “gr eater li k elihood” that the jury was influ enced by the prosecutor ’s i mproper statement. See Troy, 688 P.2d at 486.

B. Defense couns el’s inabi li ty to address the i mproper statement
¶22 Generally, i f the prosecutor makes an i mproper co mment duri ng hi s ini tial closing arg ument, “defense couns e l can ameli or ate the effects of the comment by di scu ss ing the i mpropr i ety wi th the juro rs.” State v. Todd , 2007 UT App 349, ¶ 41, 173 P.3d 170. But here, t he prosecutor ’s i mproper statement c ame duri ng the rebuttal phase of his clo sing arg ument, and defense

couns el di d not have the opp o r t un i ty to address t he prosecutor ’s i mproper statement in the or dinary course o r t o ameli or ate any harmful effects of the statement

. S e e U nited States v. Holmes , 413 F.3d 770, 776 (8th Ci r. 2005) (“It is particu larly di sturbing that the

co mments were made during the rebuttal phase of closin g arg ument” when “[d]efense couns el was left wi th no opportuni ty

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to rebut the allegations and the jury heard the remark i mmedi ately before deliberations.”)

. As the Ei ghth Ci rcui t has noted, “ [t ]h e potent i al for prej udi ce i s gr e a t d u ri n g c l os in g arg uments, especi ally when the defense has n o op p or tuni ty for rebuttal.” Id. Accordi ngly, becau se defense couns el was unabl e to respond to the prosecutor ’s i mproper statement, the potent i al for prej udi ce was hei ghtened in thi s cas e.

C. The trial c ourt ’s cu rat i ve admoniti on
¶23 “[C]urati ve instructi ons are a settled and necess ary feature of our ju d icia l process and one of the most i mport ant too ls by whi ch a court may remedy err or s at tr i al.” State v. Harmon , 956 P.2d 262, 271 (Utah 1998). However , the Utah Supreme Court has recog ni zed that curati ve instructi ons are not a “cure-all.” Id. at 273. Indeed, “ [s] ome err or s may be too prej udi ci al for curati ve instructi ons to mi tigate their effect, and a new tr i al may be the only proper remedy.” Id.

¶24 In thi s case, after t he parties gav e their closing arg uments, the j ur y left the courtr oom and Defendan t objecte d to the “last statement of the prosecutor

. . . do not make the vic t i m a vic tim again ,” and he moved for a mi st r ia l

. The tr i al court deni ed Defendan t’s motion, s ta tin g th a t i t h ad “clearly instructed [the jury ] that openi ng statements and closing arg uments are the statements of the atto rneys and that the y are giving those statements from their per specti ve and what they ar e advocating.” Defendan t then requested a speci fi c admoni tion to the jury “that they are no t to consi der that statement by the p r osecutor.” The prosecutor expr essly stated that he had no objection to Defendan t’s requested admoni tion. In that posture, the path of least resi stance i s fo r the tr i al court to si mply give the agr eed-upon admoni tion. Inste a d, when the jury came back into th e courtr oom, the tr i al court gav e what i t te rmed a “part i al admoni shm ent” to the j ury:

I am going to admoni sh you a couple of thi ngs then becau se we are going to be havin g a longer recess. . . . [I]t i s i mport ant .

. . as you deli berate that

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you remember my instructi ons that you make your deci si ons bas ed upon the evi dence that is presented at tr i al. You remember my admoni tion to you that the closing arg uments

. . . that are fresher [in] your mind

are the s tate ments of the attor neys and that .

. . their

ar g uments have been made from the perspecti ve of the cli ent that they are repr esenting[,] t ha t those arg uments are made for the purpose of being persuasi ve but they are not a st a tement of instructi on, they are not a statement of the law[,] and they ar e not t he statement of ev i dence. You need to look to your collecti ve memories of what the evidenc e i s and to follow the law s in the instructi on and to not take into—t o not take any
co mm e nt made by the atto rney whether i t’s a [reflecti on of] the defendants or whether i t’s a reflection of the wi tnesses that have testifi ed at tr i al. You mus t look to the evidenc e and not acce p t a s evidenc e any characterizati on or recollec tion o n t he wi tnesses or the part i es in thi s cas e.
¶25 After rev i ewing the tr i al court’s admoni tion to the jury , we cannot say that i t adequately dealt wi th the prosecutor ’s i mproper statement. Although the tr i al court gener ally admoni shed the jury that the closing arg uments were not evidenc e and that the jury was to base i ts deci si on s olely o n the evidenc e, the court ’s admoni tion di d not neutralize the p r ejudic i al effect of the prosecutor ’s statement for two r easons.
¶26 First, the tr i al court’s a d mo ni tion di d not var y in any si gni fi cant manner from the gener al instructi ons i t g a v e the jury b oth before tr i al and before closing arg uments. For example, befor e the tr i al began, the tr i al court gav e several prelim inary instructi ons to the jury , one of whic h instructed the jury to base i ts deci si on solely on the law and the evidenc e presented in court and informed

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i t that closing arg uments are no t evidenc e. Before closing 4 arg uments, the tr i al court read to the jury the remain ing jury instructi ons, two of whi ch instructed the jury that the la wy e r s’ arg uments were not evidenc e. Jury instructi on fi fteen read: “[B]as e your deci si on only on the evidenc e that you saw and heard here in court

. . . . The lawyers[’] statements and arg uments are not evidenc e.” And jury instructi on fort y-thre e stated:

When the lawyers give their closing arg uments, keep in mind that they are advocating their view s of t he

case. What they say during their closing arg uments i s not evidenc e. If the lawyers say anythin g about the evidenc e that confli cts wi th wha t yo u remember, you
are to rel y o n your memory of the evidenc e. If they say anythin g about the law that confli cts wi th these instructi ons, you are to r ely on t hese instructi ons.
¶27 Second, and mos t i m p or tan tly, the court’s admoni tion fai led to explic i tly call the juro rs’ atte nti on to the prosecutor ’s speci fi c i mproper st a t e me nt. Rather than giving an admoni tion that was speci fi cally tailored to the prosecutor ’s imp r oper statement li ke Def e nd a nt requested (and to whi ch the prosecutor had no objection), the tr i al court si mply repeat ed a var i ation of the boi lerplate instructi ons the jury had heard at least thre e tim es

4. Speci fi cally, the tr i al court t old the j ury:

The lawyers wi ll present and tr y to p ersuade you to deci de the case in one way or the other

. . . . Do

no t be influ enced by what you thi nk our opini ons mi ght be, make your d e cis io ns based on the law given in my instructi ons and o n t he evidenc e presented incourt. . . . Y ou mus t base your deci si on only on the evidenc e

. E videnc e usu ally consi sts of the testim ony and exhib i ts presented at t r ia l

. . . . What the lawyers say i s not evide nce. For example, their openi ng statements and closing arguments are not ev i dence.

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before. Cf. Harmon , 956 P. 2d at 269–71 (conc luding that the tr i al court’s “forceful, explic i t instructi on to the jury to di sreg a r d the ‘to tally and absolutely inappropr i ate’ comment” effecti vely cured the seri ous err or that occu r r e d when a deputy testifi ed as to the defendant’s c redib i li ty).

¶28 Wi th the exception of the tr i al co ur t’s statement that i t thought that i ts partial admoni shm ent “was appropr i ate under the ci rcums tances,” we are left wi thout explanation as to why the tr i al court di d not give Defendan t’s speci fi c reque st ed admoni tion. Gi ven that the prosecutor had no objection t o Defendan t’s

r e que sted admoni tion, the tr i al court’s deci si on to give a n admoni tion di ff e r ent from the one requested seems, absent some explanation, rat her arbi tr ary

. The tr i al cour t ha d the oppor tuni ty to di spel the emotional force of the St ate’s arg ument that an acqui ttal would allow Defendant and hi s codefendant to take advantag e of N.C. or other s again , and yet, for reasons unknown, the court chose not to do so. We thi nk i t ap p r o p r iate that in a si tu a tion such as thi s, where a defendant requests a speci fi c curati ve admoni tion that i s not contrar y to law a nd to whi ch the prosecutor has no objection, the tr i al court should si mply give the curati ve admoni tion as requested. That i s th e sa fest path for the tr i al court to take

. Of course, the tr i al cour t ma y percei ve some problem wi th the sti pulated admoni tion that couns el have mi ssed. In such a si tuation, the tr i al court should exp l a in t he reasonin g be hin d its deci si on to give an admoni tion di fferent from the one requested and give couns el an oppor tuni ty t o r espond. 5

5. We ten d to defer to tr i al courts becau se we have a cold recor d and becau se tr i al courts are in the be st p o siti on to observe the jury ’s reaction to an i mproper statement. See Doug Je s s op Constr., Inc. v. Anderton , 2008 UT App 348, ¶ 15, 195 P.3d 493 (“A tr i al judge i s in the best posi tion t o

. . . d e r i ve a sens e of the proceeding as a whole, something an appellate court cannot hope to gar ner from a cold re c or d

. ” ) ( om i s s i on in or i gin al) (ci tation and internal quotat i on marks omi tte d). However , becau se we were not in the courtr oom, i f a tr i al court’s deter minati on on whether to give a curati ve (continued...)

20130498-CA 13 2015 UT App 89State v. Akok

¶29 In thi s case, the tr i al court nei ther gav e the sti pulated admoni tion nor explain ed i ts speci fi c reasonin g for i mprov i sing rat he r than giving the agr eed-upon admoni tion. Whi le the tr i al court’s admoni tion mi ght be suffi ciently curati ve in some si tuations, we do not beli eve i t was suffi cient in thi s case becau se i t fai led to speci fi cally address th e prosecutor ’s i mproper statement. Cf. Harmon , 956 P.2d at 271. Accordi ngly, we conclude that the tr i al court’s watered-down admoni tion di d not adequately

cure the prej udi ci al effect o f t he prosecutor ’s imp r o per statement and that Defendant was prej udi ced by the remark

.

CONCLUS ION

¶30 The prosecutor ’s final st atement in closing arg ument appealed to the juro rs’ emotions, a nd i t was there fore i mproper and consti tuted prosecutor i al mi scondu ct. Mor eov er, whe n t he prose cuto r’s statement i s consi dered in conjuncti on wi th the confli cting evide nce of Defendan t’s gui lt, defense couns el’s inabi li ty to address the prosecutor ’s impro p e r statement, and t he court’s no nspec i fi c curati ve admoni tion, our confi dence in the

ver di ct i s undermined. We are convin ced that there i s a reasonable l ik e l ihood that, in the absenc e of the prosecutor ’s i mproper statement, t here would have been a more favor able result for Defendan t. Accordi ngly, we rev erse De fe ndant ’s rape convic tion and remand for a new trial on that charge.

5. (...continued) admoni tion and on what kin d of curati ve admoni tion to give turns
on some fa ct o r that we cannot percei ve from the recor d, i t i s inc um bent on the tr i al court to explain the reasonin g behind i ts deci si on.

20130498-CA 14 2015 UT App 89