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Defendant said that “he didn’t know.” But when asked why he thought Victim “was open to sex with another man,” Defendant replied that “he thought it was mutual because they were close.” ♦ Victim was transported to the hospital and examined by a sexual assault nurse examiner (Nurse). The officer then asked Defendant if he had sex with Victim. The officer asked Defendant if it was true that he was lying behind Victim fondling him, to which Defendant responded that it was. An officer next asked him, “Having these rights in mind, do you wish to talk to me now?” Defendant responded, “Sure,” and proceeded to talk with the officer.
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An officer recited the Miranda rights from memory, forgoing use of the printed card he carried and believing that he “got it pretty close to being right.” See generally Miranda v.
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Defendant was informed by an officer that he was not yet under arrest. Nunez-Vasquez officers arrived, they found Victim outside “pacing around,” “visibly upset,” and talking “loud” and “fast.” ♥ When Defendant, who was also outside, was identified as the suspect, he “turned and started to walk away.” The officers told him to stop and proceeded to detain him and place him in handcuffs. “On appeal, we recite the facts from the record in the light most favorable to the jury’s verdict and present conflicting evidence only as necessary to understand issues raised on appeal.” State v. Victim immediately went outside and called the police, reporting that he had been raped. Victim “broke free” and felt pain and lubricant in his rectum, the latter sensation being consistent with a container of personal lubricant sitting on a nearby table. ♤ The next thing Victim remembered was waking up on the floor of a “random apartment.” His pants and underwear were pulled down to his ankles, and Defendant, “someone hardly knew,” was fondling him. ♣ Throughout the night, Victim drank “alcohol in excess,” and “if somebody gave alcohol, would drink it.” Defendant heard Victim say at one point that he “identified as straight.” After the partying and drinking had ended, the trio returned to Friend’s apartment, even though Victim “had wanted to go home.” When they arrived at the apartment, at about 5:00 a.m., Victim took off his shirt and “passed out, blacked out” on the couch. After a quick stop at Friend’s apartment, the trio went to a night club, where the heavy drinking continued. Victim, Friend, and Defendant then left the house party together and continued drinking at a bar. Nunez-Vasquez BACKGROUND 1 Sexual Assault ♢ In October 2013, a man (Victim) went to a house party with a gay friend and began drinking any alcoholic drink “that could get a hold of.” There, Victim met, for the first time, Defendant and another man (Friend), who both identify as gay. Lastly, he raises other ineffective assistance claims related to arguing the rules of evidence, failing to exclude Defendant’s statements, and failing to object to certain testimony. Defendant further contends that the court erred in declining to give a requested mistake-of-fact jury instruction.
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With respect to the exclusion of evidence of the victim’s past sexual history, Defendant argues that the trial court violated his constitutional rights and that his trial counsel rendered ineffective assistance. CHRISTIANSEN FORSTER, Judge: ♡ Jamie Ernesto Nunez-Vasquez (Defendant) challenges his conviction for forcible sodomy. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. Nielsen, Attorneys for Appellee JUDGE MICHELE M. 20160794-CA Filed JThird District Court, Salt Lake Department The Honorable Mark S. 2020 UT App 98 THE UTAH COURT OF APPEALS STATE OF UTAH, Appellee, v.