State v. Vallejo , 2019 UT 38 ( 2019 )


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  •                  This opinion is subject to revision before final
    publication in the Pacific Reporter
    
    2019 UT 38
    IN THE
    SUPREME COURT OF THE STATE OF UTAH
    STATE OF UTAH,
    Appellee,
    v.
    KEITH ROBERT VALLEJO,
    Appellant.
    No. 20180041
    Filed July 29, 2019
    On Direct Appeal
    Fourth District, Utah County
    The Honorable Judge Thomas Low
    No. 151401024
    Attorneys:
    Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Solic. Gen.,
    Salt Lake City, Ryan B. McBride, Christine Scott, Provo, for appellee
    Michael D. Zimmerman, Troy L. Booher, Freyja R. Johnson,
    Salt Lake City, for appellant
    JUSTICE PEARCE authored the opinion of the Court in which
    CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
    JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
    JUSTICE PEARCE, opinion of the Court:
    INTRODUCTION
    ¶ 1 Keith Robert Vallejo appeals his convictions of ten counts of
    forcible sexual abuse and one count of object rape. A jury convicted
    Vallejo of sexually abusing two of his sisters-in-law while they lived
    with him and his family. Vallejo contends that his trial counsel
    provided constitutionally defective representation because he failed
    to move to sever the charges regarding each victim so that Vallejo
    could have two separate trials. Vallejo also claims that his counsel
    rendered ineffective assistance by failing to object to certain
    STATE v. VALLEJO
    Opinion of the Court
    testimony. In addition, Vallejo argues that the district court erred by
    admitting testimony that Vallejo claims were protected by attorney-
    client privilege. And finally, Vallejo seeks relief because on a couple
    of occasions during the trial, the court and a witness referred to
    Vallejo’s sisters-in-law as “victims.” We affirm the convictions.
    BACKGROUND
    ¶ 2 Keith Vallejo and his wife Kathleen lived in Provo with their
    six, and later seven, children. 1 J.K. frequently spent time with
    Vallejo, Kathleen, and their family.
    ¶ 3 Vallejo would often “pinch” or “slap” J.K.’s buttocks. When
    Vallejo hugged J.K., he would often “hold [her] and start biting [her]
    ear, . . . and would not let go” if she tried to pull away. J.K. often fell
    asleep on a couch at the Vallejo home and would sometimes awake
    to Vallejo massaging her feet. On some occasions, he massaged
    higher up her legs towards her thighs.
    ¶ 4 J.K. later stayed at the Vallejo home for a week and a half.
    While a guest in the home, J.K. slept on a couch in the living room.
    One night, J.K. awoke to Vallejo partially on top of her, with his
    hands rubbing her breasts over her clothing. J.K. froze. She moved to
    see if Vallejo would stop. He stopped for a moment, but eventually
    resumed his touching. At one point, he slowly started to pull down
    J.K.’s pants to reach his hand underneath them. After J.K. moved
    again, he stopped long enough that she could pretend to awaken
    and get up.
    ¶ 5 Over the next week, on five or six different nights, Vallejo
    continued to touch J.K. while she was asleep or appeared to be
    asleep on the couch. He touched her in different ways on different
    nights. At times, Vallejo touched and kissed J.K.’s breasts and
    buttocks. Vallejo also rubbed J.K’s vagina. He touched her both over
    and underneath her clothing.
    ¶ 6 J.K. was afraid and pretended to be asleep when Vallejo
    touched her. She did not report the touching to anyone at that time.
    At the end of the week and a half, J.K. returned home.
    _____________________________________________________________
    1 We recite the facts in a light most favorable to the jury verdict.
    State v. Kruger, 
    2000 UT 60
    , ¶ 2, 
    6 P.3d 1116
    . “We present conflicting
    evidence only when necessary to understand issues raised on
    appeal.” 
    Id.
    2
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    Opinion of the Court
    ¶ 7 Vallejo sometimes spoke to his friend Rocky Steele about J.K.
    For example, on two or three occasions, Vallejo told Steele that J.K
    “was the pick of the litter” of the family. On another instance, Steele
    asked Vallejo about a bottle of perfume that he observed in Vallejo’s
    truck. Vallejo said that it belonged to J.K. and while smelling it,
    commented, “[A]h, it just reminds me of [J.K.].”
    ¶ 8 Later that year, Kathleen’s youngest sister, H.K., came to live
    with the Vallejos while she completed her senior year of high school.
    For most of that year, H.K. slept on the couch in the Vallejos’s living
    room. Kathleen and H.K. often disagreed. H.K. regularly called her
    mother (Mother) and would seek her support in dealing with
    Kathleen.
    ¶ 9 Continuing a practice that began before H.K. moved in,
    Vallejo would routinely kiss H.K. on the cheek, give her long hugs,
    bite her ear, and slap her on the buttocks. At night, H.K. slept on the
    couch, often while Vallejo and Kathleen watched television near her.
    Vallejo typically sat next to H.K. on the bigger couch while she laid
    down. Kathleen sat on the smaller adjacent couch.
    ¶ 10 Vallejo would often massage H.K.’s feet while she was
    lying on the couch beside him. Sometimes he massaged H.K. while
    she was awake and other times she awoke to his massages. Over
    time, Vallejo “would progressively reach higher up [H.K.’s] legs and
    sometimes grab [her] butt, and start massaging” her buttocks. This
    occurred “many times.” Vallejo touched her buttocks under her
    clothing more than ten times. One night, Vallejo massaged H.K.’s
    back and continued lower until he “reached his finger in between
    [H.K.’s] butt crack.” H.K. reacted to the intrusion and Vallejo
    stopped.
    ¶ 11 On another occasion, H.K. awoke to Vallejo touching her
    breasts under her clothing. Vallejo had reached “his hand . . . up the
    back of [H.K.’s] shirt, and . . . was reaching around and touching
    [her] chest.” H.K. pretended to be asleep, because she was “too
    afraid to do anything.” H.K. testified that she was too frightened to
    say anything when Vallejo touched her in these ways and she
    typically pretended she was asleep. Vallejo touched H.K.’s chest
    “many” more times.
    ¶ 12 Another night, H.K. woke up on the couch to Vallejo
    massaging her legs and feet. Vallejo’s hand then reached up her leg,
    under her pants, grasped her butt, and then “his finger slowly
    reache[d] under [her] underwear.” He “slowly put[] his finger in
    [her] vagina, and . . . start[ed] stroking it.”
    3
    STATE v. VALLEJO
    Opinion of the Court
    ¶ 13 After Vallejo stopped, H.K. cried. She then messaged a
    friend, telling her that she “need[ed] to talk to someone about the
    situation [she was in].” Kathleen awoke while H.K. was sending the
    message and reprimanded H.K. for using her phone. 2
    ¶ 14 The next day, H.K. confided to her friend J.J. that Vallejo
    had “molested” her. J.J. testified that H.K. told her that her “sister’s
    husband would come in when he thought that [H.K.] was asleep,
    and would start to touch her when he thought she was asleep.”
    ¶ 15 A few days later, H.K. began sleeping upstairs in an
    unfinished bedroom out of fear that Vallejo would touch her again
    while she slept. H.K. stayed with the Vallejo family until she finished
    the school year. For the remainder of her stay, Vallejo did not touch
    her while she slept but continued to spank her buttocks and give her
    long hugs. H.K. moved to her parents’ home at the end of the school
    year.
    ¶ 16 H.K. moved out of her parents’ house when she began
    college. And at some point during the school year, she caught
    pneumonia. While H.K. was feeling poorly, Mother texted H.K.
    saying, “I woke up in the middle of the night and had a strong
    impression that you need a blessing. 3 Can you ask [friend] and one
    of his roommates today?”
    ¶ 17 H.K. told Mother that she had cried herself to sleep, that
    she did not want to talk about what was wrong, and that it had
    something to do with Kathleen and Vallejo. H.K. later testified, “I
    just felt like I should’ve told her the truth as to why I was crying, or
    why she felt like I needed a blessing, because that night I did need
    [a] blessing.”
    ¶ 18 A few days later, H.K. and J.K. returned home for
    Christmas. Mother asked to talk to H.K. “about why [she] cried
    [herself] to sleep that night.” H.K. began to cry and refused to talk
    _____________________________________________________________
    2Kathleen had previously restricted H.K. from using her cell
    phone as punishment for coming home after curfew.
    3 This is a reference to a practice of the Church of Jesus Christ of
    Latter-day Saints. The Encyclopedia of Mormonism describes
    “Blessing the Sick” in part as “[t]he gift of healing . . . through
    administrations of the . . . priesthood” that includes a “prayer of
    supplication and blessing.” Nephi K. Kezerian, Sick, Blessing the, in
    ENCYCLOPEDIA OF MORMONISM 1308-09 (Daniel H. Ludlow ed., 1992).
    4
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    Opinion of the Court
    with Mother. Mother asked her whether it was related to Kathleen
    and Vallejo. H.K. said that it was.
    ¶ 19 Because H.K. refused to disclose more, Mother called J.K.
    J.K. and H.K. then spoke to each other. J.K. came home and the two
    then talked generally about what had occurred to them. J.K. told her
    father (Father) “about the molestation” and the four—J.K., H.K.,
    Mother, and Father—discussed what happened.
    ¶ 20 The sisters also disclosed the abuse to their church leader
    and sought guidance. The church leader told the sisters that he
    would contact the church’s legal department and the church would
    “try to take care of it.” While not entirely clear from the record, the
    church’s attorneys apparently reported Vallejo’s conduct to the
    police. A police detective eventually contacted H.K. and J.K. and
    sought a statement from each of them.
    ¶ 21 A church leader notified Vallejo of the allegations. After
    Vallejo learned of the allegations, but before charges were filed,
    Vallejo, Kathleen, and Vallejo’s friend Steele met together at Vallejo’s
    brother’s farmhouse. 4 They spoke while waiting for Vallejo’s
    brother—an attorney—to arrive. Steele was already aware of the
    allegations against Vallejo, as Kathleen had visited with him and his
    wife the previous day. On their way to and at the farmhouse, Vallejo
    discussed “the accusations and the stress of it, and the emotion of it”
    with Steele.
    ¶ 22 Before his brother [Brother] arrived, and in Kathleen’s
    presence, Vallejo talked to Steele about things “that happened that
    weren’t appropriate.” Vallejo informed Steele that “he would lay on
    the couch with them, be on the couch with them[,] . . . be very close
    with them physically sometimes.” Vallejo told Steele that on one
    occasion J.K. sat down on Vallejo’s foot on the couch and that Vallejo
    “started to move his foot in a way to arouse her, to stimulate her.”
    Vallejo stated, “that he was sorry about that, and . . . that it was just
    dumb.” Steele testified that Vallejo never directly denied that he had
    engaged in the conduct that led to the charges, but that he insinuated
    that he had not.
    _____________________________________________________________
    4  Steele was not a licensed attorney, but Vallejo may have
    believed that he was. Steele had graduated from law school but had
    not passed the bar exam. Steele worked in business development,
    but had, at times, either suggested or represented that he was an
    attorney.
    5
    STATE v. VALLEJO
    Opinion of the Court
    ¶ 23 The State charged Vallejo with ten counts of forcible sexual
    abuse, second degree felonies under Utah Code section 76-5-404
    (2014), and one count of object rape, a first degree felony under Utah
    Code section 76-5-402.2 (2014). 5 The charges regarding J.K.’s
    allegations and H.K.’s allegations were tried together.
    ¶ 24 Prior to trial, Vallejo argued that his farmhouse
    conversation was privileged because he had been seeking legal
    advice from Steele. The district court disagreed with that
    characterization and concluded that the conversation between Steele
    and Vallejo “was a conversation among good friends” and the
    attorney-client privilege accordingly did not exist. As a result, the
    jury heard Steele testify about his conversation with Vallejo.
    ¶ 25 During H.K.’s testimony, the judge referred to her as a
    “victim” while responding to an objection: “[I]t sounds like it’s just
    contextual for how the victim responded, so overruled.” Vallejo’s
    trial counsel immediately moved for a mistrial. Vallejo’s counsel
    argued that a limiting instruction would not ameliorate the harm,
    and indeed, would only “make[] things worse.” Counsel preferred
    that the judge not give a curative instruction. The district judge
    denied the motion for mistrial and elected to read to the jury an
    instruction based on the model jury instruction on the court’s
    neutrality in order to avoid drawing the jury’s attention to his use of
    the word “victim.” 6
    ¶ 26 H.K’s friend J.J. testified that H.K. had said her “sister’s
    husband would come in when he thought that she was asleep, and
    would start to touch her when he thought she was asleep.” On cross-
    _____________________________________________________________
    5We use the version of the statute in effect at the time of Vallejo’s
    conduct.
    6   The judge instructed:
    As the judge, I am neutral. I want to make sure you
    know that. If I have said or done anything that makes
    you think that I favor one side or the other, that was
    not my intention. Do not interpret anything that I have
    done as indicating that I have any particular view of
    the evidence or the decision that you should reach. My
    only roles in this trial are to see that the law is properly
    applied, and that the parties are accorded equal
    opportunities to present evidence. You are the sole
    judges of what the true facts in this case are.
    6
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    Opinion of the Court
    examination, J.J. admitted that six months prior to trial, when she
    was talking to a prosecutor, she could not recall who had sexually
    abused H.K.
    ¶ 27 In his closing statement, Vallejo argued that this was
    evidence that J.J. had “made her story better for the trial.” Vallejo did
    not object to this portion of J.J.’s testimony at the time, but in his
    motion for a new trial, he argued that her testimony was
    inadmissible.
    ¶ 28 Later in the trial, a police officer used the term “victim”
    three times while testifying. Vallejo’s counsel eventually objected
    and stated, “That’s the third time that [the police officer] used the
    word victim in referring to [H.K. and J.K.],” though he subsequently
    conceded that two of the references were not about H.K. and J.K.
    specifically. The prosecutor instructed the officer to not use the term
    victim.
    ¶ 29 The State called a clinical social worker as an expert
    witness. The expert used the term “victim” a total of nine times
    while testifying about reactions to sexual assault and misconceptions
    surrounding those who report sexual assault. The expert did not use
    “victim” to refer to H.K. or J.K. specifically, but to speak generally
    about individuals who suffer sexual abuse. After she had used the
    term three times, Vallejo’s counsel asked that the expert use different
    language. The district court agreed. The expert followed the
    instruction with limited success—using the term victim six more
    times during the testimony, albeit she often caught herself and said
    client instead.
    ¶ 30 The jury found Vallejo guilty of all charges.
    ISSUES AND STANDARDS OF REVIEW
    ¶ 31 Vallejo presents five arguments on appeal.
    ¶ 32 Three of Vallejo’s claims focus on his counsel’s
    performance. Vallejo alleges that his trial counsel was ineffective
    because: (1) counsel did not move to sever the charges based on the
    conduct involving J.K. from charges based on the conduct involving
    H.K.; (2) counsel did not object to J.J.’s testimony as inadmissible
    hearsay; and (3) counsel failed to object to testimony from H.K. and
    Mother regarding Mother’s desire that H.K. receive a blessing—
    which Vallejo characterizes as a “spiritual manifestation confirming
    . . . the truthfulness of H.K.’s allegation.”
    ¶ 33 Vallejo argues that in each instance his counsel’s assistance
    fell below the constitutional floor. When presented with a claim of
    ineffective assistance of counsel, “[w]e review a lower court’s purely
    7
    STATE v. VALLEJO
    Opinion of the Court
    factual findings for clear error, but [we] review the application of the
    law to the facts for correctness.” Menzies v. State, 
    2014 UT 40
    , ¶ 29,
    
    344 P.3d 581
     (alterations in original) (citation omitted).
    ¶ 34 Vallejo next argues that the communications at the
    farmhouse were protected by the attorney-client privilege and that
    the district court therefore improperly admitted the testimony. When
    the existence of a privilege turns on a question of law, we review for
    correctness. See Moler v. CW Mgmt. Corp., 
    2008 UT 46
    , ¶ 7, 
    190 P.3d 1250
    . When the existence of a privilege turns on questions of fact, we
    give deference to the district court’s underlying fact finding and do
    not set those findings aside unless they are clearly erroneous.
    ¶ 35 Finally, Vallejo contends that the in-court references to J.K.
    and H.K. as “victim” or “victims” were improper and prejudicial. It
    appears that Vallejo believes that his motion for a mistrial should
    have been granted on account of the judge’s use of that term. 7 We
    review a district court’s denial of a motion for mistrial under an
    abuse of discretion standard. State v. Cardall, 
    1999 UT 51
    , ¶ 19, 
    982 P.2d 79
    . Vallejo also claims ineffective assistance of counsel arising
    from counsel’s failure to object sooner or more often to these
    references to “victim”—which we review under the same standards
    we have discussed above. State v. Hutchings, 
    2012 UT 50
    , ¶ 8, 
    285 P.3d 1183
    ; Menzies, 
    2014 UT 40
    , ¶ 29.
    ANALYSIS
    I. Ineffective Assistance of Counsel
    ¶ 36 To succeed on an ineffective assistance of counsel claim,
    Vallejo must demonstrate that his trial counsel’s performance was
    deficient and that he suffered prejudice as a result. Strickland v.
    Washington, 
    466 U.S. 668
    , 687 (1984).
    ¶ 37 Vallejo must first “show that counsel’s representation fell
    below an objective standard of reasonableness.” 
    Id. at 688
    . This
    inquiry focuses on “whether counsel’s assistance was reasonable
    considering all the circumstances.” 
    Id.
     “A fair assessment of attorney
    performance requires that every effort be made to eliminate the
    distorting effects of hindsight, to reconstruct the circumstances of
    counsel’s challenged conduct, and to evaluate the conduct from
    _____________________________________________________________
    7The other references to “victim” or “victims” occurred after the
    motion for mistrial and Vallejo did not renew the motion—which
    forms part of his claim for ineffective assistant of counsel.
    8
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    Opinion of the Court
    counsel’s perspective at the time.” Id. at 689. As a result, the analysis
    is highly fact-intensive and context-dependent.
    ¶ 38 Our “scrutiny of counsel’s performance must be highly
    deferential.” Id. “[A] court must indulge a strong presumption that
    counsel’s conduct falls within the wide range of reasonable
    professional assistance; that is, the defendant must overcome the
    presumption that, under the circumstances, the challenged action
    ‘might be considered sound trial strategy.’” Id. (citation omitted).
    ¶ 39 A deficient performance on its own is not enough,
    however, because the “purpose of the effective assistance guarantee
    of the Sixth Amendment is not to improve the quality of legal
    representation,” but rather “to ensure that criminal defendants
    receive a fair trial.” Id. Therefore, Vallejo must demonstrate prejudice
    by “show[ing] that there is a reasonable probability that, but for
    counsel’s unprofessional errors, the result of the proceeding would
    have been different.” Id. at 694. “A reasonable probability is a
    probability sufficient to undermine confidence in the outcome.” Id.
    ¶ 40 Vallejo must make a satisfactory showing of both deficient
    performance and prejudice to prevail. “[I]f the defendant makes an
    insufficient showing on one [prong],” there is no need for us “to
    address both components of the inquiry.” Id. at 697.
    A. Trial Counsel’s Performance Was Not Deficient
    Because the Decision to Not Move to Sever the Charges
    Was, in This Instance, Objectively Reasonable
    ¶ 41 Vallejo argues that his trial counsel should have moved to
    sever the charges arising from the conduct involving each victim. He
    contends that his trial counsel’s asserted reason for failing to file the
    motion—because he “did not think the court would grant the
    motion”—demonstrates that counsel lacked a tactical basis for
    declining to file the motion, which Vallejo offers as per se evidence
    of unreasonable conduct. Vallejo argues that the motion would have
    succeeded because he had a right to separate trials on the counts
    involving H.K. and those involving J.K. Vallejo alleges that counsel’s
    failure to sever the charges prejudiced him because the prosecution
    was able to “rely on testimony concerning [Vallejo’s] purported
    conduct with the other sister to obtain convictions regarding each
    sister” and that the prosecution would not have been able to use
    each sister’s testimony in separate trials because the Utah Rules of
    Evidence would have prevented the admission of the other sister’s
    testimony.
    9
    STATE v. VALLEJO
    Opinion of the Court
    ¶ 42 Vallejo must make several interrelated showings to succeed
    on appeal. First, he must demonstrate that under the circumstances
    of the case, counsel’s representation fell below an objective standard
    of reasonableness when he failed to file the motion to sever. See
    Strickland, 
    466 U.S. at 688
    . Vallejo must rebut the presumption that
    this constituted sound trial strategy. See 
    id. at 689
    . Vallejo must also
    demonstrate that the motion would likely have been granted had it
    been filed. See State v. Bond, 
    2015 UT 88
    , ¶ 63, 
    361 P.3d 104
     (“[T]he
    failure of counsel to make motions . . . [that] would be futile if raised
    does not constitute ineffective assistance.” (alterations in original)
    (citation omitted)). And to demonstrate prejudice, Vallejo must
    demonstrate that a reasonable probability exists that the outcomes of
    the trials would have been different had the motion to sever been
    filed and granted. See Strickland, 
    466 U.S. at 694
    . We need only
    address the first point because Vallejo fails to demonstrate that his
    attorney offered deficient performance by neglecting to move to
    sever the charges.
    ¶ 43 Vallejo argues it was unreasonable for his trial counsel to
    fail to file a motion to sever the charges. Vallejo points to his trial
    counsel’s affidavit in which his counsel asserts that he did not move
    to sever the charges because he “did not think the court would grant
    the motion.” Based on this affidavit, Vallejo contends that counsel
    lacked a “tactical basis” for failing to assert the motion to sever—and
    that therefore this constituted ineffective assistance of counsel.
    ¶ 44 As an initial matter, the ineffective assistance of counsel
    inquiry focuses on whether the counsel’s actions in question were
    objectively reasonable, not whether the counsel had a subjectively
    defensible reason for taking them. See Strickland, 
    466 U.S. at 688
    .
    “Strickland . . . calls for an inquiry into the objective reasonableness
    of counsel’s performance, not counsel’s subjective state of mind.”
    Harrington v. Richter, 
    562 U.S. 86
    , 110 (2011). Thus, it is not enough to
    simply say that Vallejo’s counsel didn’t have a tactical reason for not
    moving to sever the charges; rather, the question is whether a
    reasonable attorney could have made the same decision.
    ¶ 45 And again, Vallejo says no—that there would be no sound
    tactical basis for an attorney to decide not to move to sever the
    claims. Indeed, Vallejo argues that under the relevant statute, Utah
    Code sections 77-8a-1(1) and (4), and our case law, he had a right to
    separate trials. And he argues that in separate trials he could have
    admitted testimony that supported his argument that the sisters
    colluded, while excluding unfavorable testimony about Vallejo’s
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    Opinion of the Court
    conduct with the other sister. 8 Based on that, Vallejo maintains that
    no reasonable attorney would try the cases together.
    ¶ 46 In many cases, Vallejo might be right. There very well may
    be circumstances in which there is no reasonable basis for trying two
    cases together that could be tried separately. But this is not such a
    case. We can envision reasonable trial counsel opting for a single
    trial.
    ¶ 47 Vallejo’s trial strategy focused on casting doubt on H.K.’s
    and J.K.’s testimony. During J.K.’s cross-examination, Vallejo
    emphasized several points designed to undercut J.K.’s credibility.
    Vallejo elicited that J.K. never said that she was “uncomfortable” to
    Vallejo while the abuse occurred. Vallejo explored J.K.’s asserted
    reasons for not reporting the abuse in an apparent attempt to
    undermine them. For example, even though J.K. had asserted that
    one of the reasons that she had never disclosed the abuse was
    because of fear that Vallejo might hurt her, she acknowledged that
    Vallejo had never threatened her. And J.K. testified that she did not
    disclose because she feared that no one would believe her, including
    her family and ecclesiastical leaders.
    ¶ 48 J.K. also asserted that she did not disclose because she was
    afraid of what would happen to her sister Kathleen. In addition, J.K.
    testified that she did not attempt to avoid the continued abuse by
    _____________________________________________________________
    8 We are not as confident as Vallejo that trial counsel would have
    necessarily prevailed on a series of evidentiary motions which the
    court would have had wide discretion to decide. Vallejo assumes
    that the district court would have repeatedly found in his favor in a
    number of rulings: that a motion to sever would have been granted;
    that each sister’s testimony would not have fallen under a rule 404(b)
    exception such that it could have been introduced in separate trials;
    or that, alternatively, the prejudicial value of each sister’s testimony
    would have outweighed its probative value in separate trials such
    that rule 403 would have prevented its admission. And again, even if
    we assume that Vallejo could have convinced a court to rule in his
    favor on each of these motions, it is quite another thing to say that a
    reasonable attorney would necessarily share that confidence and
    advise a client that they would be able to run the table.
    We note this without commenting on whether a motion to sever
    would have succeeded or on the outcomes of the series of
    evidentiary motions that would have allowed Vallejo to admit
    favorable testimony and exclude unfavorable testimony.
    11
    STATE v. VALLEJO
    Opinion of the Court
    going home early or by checking into a motel. And J.K. testified that
    she never told Vallejo that she did not want to see him again but
    rather later asked to go on a trip with Vallejo and his family. Vallejo
    used this testimony to argue to the jury that J.K.’s failure to report
    the alleged abuse—or to at least warn her sister H.K.—was illogical
    and that the jury should therefore discredit her allegations.
    ¶ 49 Vallejo also attempted to undermine H.K.’s credibility.
    During H.K.’s cross-examination, she testified that on only one
    occasion did she ask Vallejo to stop touching her. Counsel contrasted
    the instance where H.K. asked Vallejo to stop touching her “butt”
    with her decision to “fake[] being asleep” on the other instances
    when he touched her at night on the couch. Counsel insinuated that
    it was illogical or implausible that H.K. would verbally protest
    Vallejo’s conduct on one instance but not on others. Like J.K., H.K.
    testified that she did not leave the Vallejo home to evade the abuse.
    ¶ 50 H.K. also testified that she did not report the abuse to
    anyone other than J.J. Indeed, in response to questions, H.K. stated
    that she did not tell her parents of the abuse even though she had
    frequent conversations with her mother and spent time with her
    parents during their visits to Utah while the abuse was ongoing.
    Counsel argued that it was odd that despite being close to her
    mother, H.K. did not tell her about the abuse and solicited testimony
    to support that argument. For example, counsel asked H.K., “And
    you never, ever told your mother, who you loved, and who you’re
    close to, that you were being sexually abused during this time, did
    you?” H.K. responded, “No, I did not.” And during the closing
    argument, Vallejo’s counsel asserted H.K. “tells her mother
    everything. Everything. That’s the testimony in this case. She
    wouldn’t have left this out.”
    ¶ 51 Counsel elicited testimony about tension between H.K. and
    Kathleen. Vallejo emphasized H.K.’s fraught relationship with
    Kathleen to imply a motive to lie about the abuse. In his opening
    statement, Vallejo’s counsel asserted that “[i]t was well known that
    there w[ere] problems between Kathleen and [H.K.].” And in his
    closing statement Vallejo’s counsel characterized H.K. as “[t]his
    young lady, who was the youngest, who’s been characterized as the
    baby, the spoiled one . . . she didn’t like that the rules were being
    laid down.” Counsel continued,
    They want you to believe . . . that while she’s utterly
    capable of saying all sorts of things about Kathleen . . .
    somehow she couldn’t take the additional step to
    saying, oh, and by the way, Kathleen’s husband’s
    12
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    Opinion of the Court
    doing bad things to me that I don’t want. . . . She’s able
    to be combative with her sister every day, . . . and
    somehow she never mentions any of this stuff [to her
    mother].
    All of this sought to undermine H.K.’s credibility by insinuating that
    she had a motive to want to fabricate allegations against Vallejo—to
    get back at Kathleen.
    ¶ 52 Counsel also spun a narrative that H.K. and J.K. colluded to
    fabricate the allegations. When trial counsel addressed the message
    that H.K. sent to a friend in the middle of the night after the rape,
    counsel stated, “[t]his is her testing the waters. Let’s put this into
    context. Okay? This happens when she’s in trouble for [breaking
    curfew after] the prom.” During Vallejo’s closing argument, trial
    counsel posed the question of “how can it be that [J.K. and H.K.] got
    these details [about the abuse] exactly the same?” Counsel urged the
    jury to “remember what the testimony was about that[:] [i]n
    December, . . . [J.K. and H.K.] got together in the bedroom and talked
    to one another,” implying that they colluded to corroborate their
    allegations.
    ¶ 53 The challenge for Vallejo’s strategy, however, is that he
    lacked evidence to show that J.K. had any motive to fabricate
    testimony, other than to support H.K.’s plan. Thus, Vallejo’s
    appellate argument is premised on his belief that he had a strong
    defense against H.K.’s allegations but that defending against J.K.’s
    allegations would be more difficult.
    ¶ 54 For the purpose of this analysis, we assume Vallejo’s
    characterization that he possessed a stronger defense against the
    charges related to H.K., and a weaker defense against those
    involving J.K. 9 We also assume that if he had moved to sever the
    charges, he would have been successful and would have
    subsequently obtained an acquittal on the case with the stronger
    defense.
    _____________________________________________________________
    9 In so doing, we do not intend to indicate that we agree with
    Vallejo’s assessment of the strength of his defense against the
    allegations dealing with H.K. The evidence of motive to fabricate
    allegations of sexual abuse—H.K. was upset with Kathleen’s rules
    and discipline—perhaps only seems strong in comparison to the
    allegation that J.K. would fabricate to support H.K.
    13
    STATE v. VALLEJO
    Opinion of the Court
    ¶ 55 In this scenario, Vallejo would have been acquitted of five
    counts of forcible sexual abuse, each a second degree felony, and
    object rape, a first degree felony. And we assume that Vallejo would
    have faced a stronger risk of conviction in the case with the weaker
    defense. In this assumed universe, if convicted, Vallejo faced prison
    sentences for the five counts of forcible sexual abuse committed
    involving J.K. We agree with Vallejo that a reasonable attorney could
    have chosen a strategy that seeks to minimize prison time by trading
    the perceived advantages of having H.K. in J.K.’s case for the
    problems that having J.K. in H.K.’s trial might engender.
    ¶ 56 Counsel could have also considered an all-eggs-in-one-
    basket strategy: try the case with the stronger defense and the case
    with the weaker defense together. There, counsel hopes that the case
    with the “strong” defense (H.K. had a motive to fabricate) will
    pollute the other case—by impugning the credibility of the victim
    with no strong motive to fabricate—and lead to an acquittal on all
    charges. In this hypothetical, Vallejo potentially walks away from the
    trial without any prison time and without any criminal conviction at
    all.
    ¶ 57 Vallejo asserts that reasonable trial counsel could only
    select the former scenario. That is, he argues that “[r]easonable
    counsel would not have allowed charges involving JK to be put
    before the jury in a trial on the charges involving HK.” He states that
    “[t]his is particularly true where the stakes involving HK were
    significantly higher”—as the charges involving H.K. included a first
    degree felony charge for object rape, whereas the other charges
    involving H.K. and all of the charges involving J.K. were second
    degree felonies. 10
    ¶ 58 We take Vallejo’s point. But Vallejo assumes that only
    strategies aimed at minimizing prison time could be reasonable. If
    Vallejo’s goal was to avoid prison time altogether, reasonable trial
    counsel could have decided to pursue an all or nothing strategy. And
    it is logical to conclude that an attorney charged with representing a
    man in his forties, with no criminal history, and a position of relative
    _____________________________________________________________
    10 It bears noting that the district court instructed the jury about
    their obligation when considering multiple charges. The instruction
    directed the jury that it had a “duty to consider each charge
    separately”; that for “each crime charged” it should “consider all of
    the evidence relating to that charge”; and that their “verdict on one
    charge does not determine [their] verdict on any other charge.”
    14
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    esteem in his ecclesiastical community, might prefer a strategy that is
    designed to avoid any conviction and prison time.
    ¶ 59 Vallejo anticipates this line of thinking and contends that in
    separate trials he could have excluded certain unfavorable evidence
    and “still introduced HK’s claims in JK’s case to show JK’s
    motivation for falsely accusing him.” At the same time, Vallejo
    contends that the prosecution could not have “rel[ied] on testimony
    concerning [his] purported conduct with the other sister to obtain
    convictions regarding each sister” because the testimony would have
    been inadmissible in the trial based on the other sister. Vallejo
    describes this as the “best of both worlds:” the exclusion of J.K.’s
    testimony that Vallejo abused her in H.K.’s trial but the inclusion of
    evidence of the tension between H.K. and Kathleen in J.K.’s trial that
    would suggest a motive for J.K. to lie.
    ¶ 60 To make this argument, Vallejo focuses on the evidence
    concerning motive. But motive was not the only issue counsel could
    have considered. If the jury did not buy Vallejo’s argument that H.K.
    fabricated the allegations to get back at Kathleen, reasonable counsel
    could have concluded that Vallejo needed something else to argue.
    J.K.’s presence at the trial gave him another witness who he could
    argue should not be believed because of the delay in reporting and
    because she did not leave a home where she alleged she was
    suffering abuse.
    ¶ 61 Reasonable counsel could, as Vallejo’s counsel did, point to
    the fact that J.K. did not warn H.K. about Vallejo’s abuse when she
    learned H.K. would move into the Vallejo home. This gave Vallejo
    another set of arguments to try and cast doubt on H.K.’s—and
    J.K.’s—testimony. As such, even though there were reasons to
    believe that J.K.’s testimony would bolster H.K.’s, reasonable trial
    counsel could also conclude that J.K.’s testimony could be used to
    reinforce arguments about why the jury should discredit H.K.’s
    account and, in the process, throw doubts on J.K.’s account. And trial
    counsel may have legitimately reasoned that there was value in
    having both sisters sit in the courtroom for the jury to observe as
    they heard evidence and argument about the sisters’ plan to fabricate
    testimony. Although reasonable trial counsel might have weighed all
    of this and moved to sever, reasonable trial counsel could also decide
    to try the cases together. 11
    _____________________________________________________________
    11  Other courts have similarly recognized that counsel can
    strategically decide to forgo a motion to sever. For example, the New
    (continued . . .)
    15
    STATE v. VALLEJO
    Opinion of the Court
    ¶ 62 This leads us to agree with the district court that on these
    facts, trial counsel could have reasonably decided to not sever
    charges. This falls within the “wide range of reasonable professional
    assistance” that meets the constitutional standard of adequate
    representation. See Menzies v. State, 
    2014 UT 40
    , ¶ 76, 
    344 P.3d 581
    (citation omitted) (internal quotation marks omitted). Because
    reasonable trial counsel could elect to try these cases together,
    Vallejo has failed to demonstrate that trial counsel’s election to not
    file a motion to sever charges constituted ineffective assistance of
    counsel.
    B. Trial Counsel’s Failure to Object to
    J.J.’s Testimony Was Not Unreasonable
    ¶ 63 Vallejo next claims that his trial counsel was ineffective for
    failing to object to testimony that J.J., H.K.’s friend, provided.
    According to Vallejo, J.J.’s testimony included impermissible hearsay
    that offered “no conceivable beneficial value to the defendant.”
    Based upon his dim view of the testimony’s value, Vallejo contends
    that his counsel rendered ineffective assistance by not objecting to its
    admission.
    ¶ 64 Specifically, J.J. testified that H.K. told her that “at night
    when she was asleep, . . . her sister’s . . . husband would come in
    when he thought she was asleep, and would start to touch her when
    he thought she was asleep.” J.J. testified that H.K. “said that he put
    like his hands down her pants.”
    Mexico Court of Appeals considered a claim of ineffective assistance
    after an attorney failed to sever charges relating to his client’s alleged
    sexual abuse of two minors. State v. Carabajal, 
    2009 WL 6763560
    , at
    *1-2 (N.M. Ct. App. Feb. 23, 2009). That court noted that a severance
    motion would have likely been granted, but that it could not
    “conclude that it was irrational to attempt to undermine the more
    numerous and serious counts involving C.C. by including the
    allegations involving M.D. and her involvement in the alleged
    conspiracy” to fabricate allegations against the defendant. 
    Id.
     at *2–3;
    see also In re Gensitskiy, 
    2018 WL 1730176
    , at *6–7 (Wash. Ct. App.
    Apr. 10, 2018) (rejecting claim that counsel provided ineffective
    assistance by failing to seek separate trials where there was a
    legitimate trial tactic to try the cases together—allowing the jury to
    hear some of the alleged victims recant and express doubt about
    their testimony).
    16
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    ¶ 65 The pretrial discussion about J.J. illuminates how both the
    State and Vallejo viewed the testimony. In advance of trial, the State
    notified Vallejo and the district court that J.J. would testify that “H.K.
    told her toward the end of J.J.’s freshman year, in 2014, that someone
    in her house was abusing her and she moved upstairs to avoid him.”
    At a pretrial hearing, Vallejo’s trial counsel requested a continuance
    so that he could speak with J.J. and investigate her testimony. Trial
    counsel explained that J.J. was “the only person who’s not a family
    member that’s going to provide any sort of corroboration.” Vallejo’s
    trial counsel explained to the court: “[W]e want to know about how,
    what sort of communication was going on between H.K. and J.J., you
    know, why it didn’t come to light for so long. She tips the balance in
    this case. She’s very important to us.”
    ¶ 66 Vallejo’s cross-examination reveals how he tried to
    illustrate that J.J.’s testimony changed over time in a manner
    beneficial to H.K.’s claims to bolster his broader argument that H.K.
    (and by extension J.K.) fabricated their accounts.
    Q. . . . [Y]ou were first asked to talk about this in a
    telephone conversation you had with [the prosecutor]
    . . . last year. Remember that?
    A. Yeah.
    ...
    Q. Okay, and do you remember what you told him at
    the time?
    A. I think I told him what I just said [in the direct
    examination], yeah.
    ...
    Q. I’m going to show you something that’s been
    provided to us by the prosecutor’s office, and I’m just
    going to ask you to read it to yourself, not out loud, but
    just read it to yourself.
    A. Okay.
    ...
    Q. Okay. So now I want to talk to you about the phone
    conversation that you had with [the prosecutor]. . . .
    Q. . . . [W]hat you told him was, at that time, what you
    told the prosecutor was that [H.K.] said she was
    staying at her sister’s house and a man was sexually
    abusing her, right?
    A. Yes.
    17
    STATE v. VALLEJO
    Opinion of the Court
    Q. Okay. And you said you didn’t recall if [H.K.] told
    [you] who the man was. Right?
    A. Yes.
    Q. Okay. So, back in August, you didn’t tell him
    anything about it being her brother-in-law, or anything
    else, you said it was just some man, and you didn’t
    remember who it was. Right?
    A. Yes.
    Q. And today you’re telling us, oh, it’s the brother-in-
    law. Right?
    A. Mm-hmm.
    Through cross-examination, Vallejo’s trial counsel revealed that J.J.’s
    testimony had changed and become more incriminating by trial. In
    his closing statement, Vallejo’s counsel used this testimony to assert
    that J.J. “made her story better for the trial.”
    ¶ 67 In a motion for new trial, Vallejo argued that J.J.’s
    testimony constituted inadmissible hearsay and that his trial counsel
    was ineffective for not objecting to its admission. The district court
    found that J.J.’s testimony regarding H.K.’s statements was properly
    admissible as a prior consistent statement. 12
    ¶ 68 The district court concluded that “[t]he fact that HK’s
    statement to [J.J.], in April of 2014, was before HK’s meeting with JK
    was relevant and helpful to rebut the express or implied charge that
    HK collaborated with JK during the December 2014 meeting.” The
    court continued, “Therefore, [J.J.]’s testimony regarding HK’s April
    disclosure was properly admissible as a prior consistent statement
    under Utah Rule of Evidence 801(d)(1)(B).” Vallejo disagrees with
    the district court’s conclusion that this was admissible testimony,
    and he claims that his trial counsel was ineffective for failing to
    object to the testimony.
    _____________________________________________________________
    12 A statement is admissible as a prior consistent statement if
    “[t]he declarant testifies and is subject to cross-examination about a
    prior statement, and the statement . . . is consistent with the
    declarant’s testimony and is offered to rebut an express or implied
    charge that the declarant recently fabricated it or acted from a recent
    improper influence or motive in so testifying.” UTAH R. EVID.
    801(d)(1). Rule 801(d)(1)(b) only allows the admission of “premotive,
    consistent, out-of-court statements.” State v. Bujan, 
    2008 UT 47
    , ¶ 11,
    
    190 P.3d 1255
    .
    18
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    Opinion of the Court
    ¶ 69 As explained above, to prevail on a claim of ineffective
    assistance of counsel, Vallejo “must show, first, that his counsel
    rendered a deficient performance in some demonstrable manner,
    which performance fell below an objective standard of reasonable
    professional judgment and, second, that counsel’s performance
    prejudiced the defendant.” Archuleta v. Galetka, 
    2011 UT 73
    , ¶ 38, 
    267 P.3d 232
     (citation omitted) (internal quotation marks omitted). 13
    ¶ 70 Leaving aside the question of whether the statements
    violated the rule against hearsay, Vallejo’s trial counsel had a
    reasonable tactical reason for not objecting to the testimony. J.J.’s
    testimony opened up the opportunity for Vallejo’s counsel to reveal
    further inconsistencies in her story that aligned with his theory that
    the sisters had colluded to bring the charges—which is exactly the
    approach that Vallejo’s trial counsel adopted during cross-
    examination and the closing argument. As described above, Vallejo’s
    defense centered on questioning the credibility of Vallejo’s accusers,
    and J.J.’s testimony helped him do that. Vallejo has not overcome the
    presumption that the challenged action—failure to object to J.J.’s
    testimony—was reasonable. See Met v. State, 
    2016 UT 51
    , ¶ 113, 
    388 P.3d 447
    . He has therefore failed to establish deficient performance.
    C. Trial Counsel’s Failure to Object to H.K. and Mother’s
    Testimony About Mother’s Alleged Spiritual Impression
    Did Not Constitute Ineffective Assistance
    ¶ 71 Vallejo next claims that testimony Mother and H.K. gave
    about Mother’s “spiritual impression” was inadmissible and that his
    trial counsel was ineffective for failing to object to it. He argues that
    this testimony “enabled the jurors to base their decision on their
    religious beliefs,” in violation of rules 403 and 610 of the Utah Rules
    of Evidence, rather than on the evidence in the case. He asserts that
    “counsel had a duty to object to this inadmissible and prejudicial
    evidence and rendered deficient performance in failing to object.”
    ¶ 72 During direct examination, the prosecutor questioned H.K.
    about the circumstances that led her to disclose the abuse to her
    _____________________________________________________________
    13   “[T]he failure of counsel to make motions,” or objections, that
    “would be futile if raised does not constitute ineffective assistance.”
    See State v. Bond, 
    2015 UT 88
    , ¶ 63, 
    361 P.3d 104
     (citation omitted)
    (internal quotation marks omitted). Here, we focus on the
    reasonableness of Vallejo’s trial counsel’s decision to not object to
    J.J.’s testimony. And we do not address whether an objection to the
    testimony would have prevailed had he made one.
    19
    STATE v. VALLEJO
    Opinion of the Court
    family. As background, H.K. testified that “I was going to school,
    and . . . I was very sick, and my mother had texted me that . . . she
    had an overwhelming feeling like I needed a blessing. And she
    thought that it was related to the fact that I had pneumonia. And I
    told her that I had cried myself to sleep that night, which I did many
    nights . . . .”
    ¶ 73 The prosecutor then asked H.K.,
    Q. . . . What happened next that made you decide to
    disclose to your family?
    A. I just felt like I should’ve told her the truth as to why
    I was crying, or why she felt like I needed a blessing,
    because that night I did need [a] blessing . . . .
    H.K. then read the relevant text messages aloud:
    A. [Mother], . . . ‘I woke up in the middle of the night
    and had a strong impression that you needed a
    blessing. Can you ask [friend] and one of his
    roommates today?’
    Q. Okay. Your response?
    A. . . . I cried myself to sleep last night, Mom.’ She said,
    ‘[W]hy?’ I didn’t [respond]—she called me, I didn’t
    answer. [Mother], ‘I tried to call you. Please call me.’ I
    said, ‘I don’t want to talk about it, but it involves
    Kathleen and Keith.’ . . .
    ¶ 74 The prosecutor later questioned Mother about the same text
    messages:
    Q. You said [H.K.] was out at college at that time?
    Okay. Was there something that caused you concern
    with [her]? . . .
    A. During that semester, I noticed her having maybe
    some difficulty focusing on her school work, and . . .
    she’d had pneumonia the first part of December, so she
    had been sick, and I was concerned about that. But I
    just kept feeling like there was something else that was
    weighing on her, something else that was not right.
    Q. . . . could you read that [text message], please? . . .
    A. The first text is from me, and it says, ‘I woke up in
    the middle of the night and had a strong impression
    that you need a blessing. Can you ask [friend] and one
    of his roommates today?’ Because I‘d been telling her
    20
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    Opinion of the Court
    she needed a blessing because of the pneumonia. And
    then—
    Q. What was her response?
    A. She responded and said, ‘I cried myself to sleep last
    night, Mom’. And I texted her back and said, ‘[W]hy’?
    And she didn’t answer me for a while. . . . [Then] she
    texted me back and said, ‘I don’t want to talk about it,
    but it involves Kathleen and Keith.’
    Mother then testified that a few weeks later when H.K. was home on
    a break from school, she said to H.K. that “at some point, you need
    to tell me what it was that upset you so badly that has to do with
    Keith and Kathleen,” which eventually led to the disclosure of the
    abuse.
    ¶ 75 Vallejo characterizes this testimony as evidence of Mother’s
    “spiritual manifestation” and contends that its admission violated
    Utah Rules of Evidence 403 and 610. Vallejo argues that “[t]here is a
    strong likelihood that Utah County jurors,” where the trial occurred,
    “would consider Mother’s feelings about something weighing on
    HK and her waking with [a] ‘strong impression’ that HK needed a
    ‘blessing’ on a night where HK cried herself to sleep over Keith and
    Kathleen to be a manifestation from God confirming the veracity of
    HK’s allegations.”
    ¶ 76 Vallejo asserts that the testimony “caused unfair prejudice
    by allowing jurors to base their decision on their beliefs about divine
    manifestations rather than established factual propositions of the
    case,” and therefore violated rule 403. Utah Rule of Evidence 403
    provides that a “court may exclude relevant evidence if its probative
    value is substantially outweighed by a danger of one or more of the
    following: unfair prejudice, confusing the issues, misleading the jury,
    undue delay, wasting time, or needlessly presenting cumulative
    evidence.” Vallejo also argues that the testimony violated rule 610,
    which prohibits the admission of “[e]vidence of a witness’s religious
    beliefs or opinions . . . to attack or support the witness’s credibility.”
    UTAH R. EVID. 610. 14
    _____________________________________________________________
    14 Rule 610 of the Utah Rules of Evidence “is the federal rule,
    verbatim,” UTAH R. EVID. 610 advisory committee note, therefore we
    look to federal cases interpreting the federal rule for guidance. See
    Robinson v. Taylor, 
    2015 UT 69
    , ¶ 10, 
    356 P.3d 1230
    . And, where a
    state court has interpreted a rule of evidence determined to be in
    (continued . . .)
    21
    STATE v. VALLEJO
    Opinion of the Court
    ¶ 77 We do not address whether the religious testimony was
    properly admitted, because it was reasonable for competent counsel
    to not object for a variety of reasons. Vallejo’s trial counsel could
    have reasonably decided not to object because he made frequent
    references to Vallejo’s own religion and role as a religious leader.
    During the opening statement, Vallejo’s trial counsel commented
    that Vallejo “had received his church calling and was his ward’s
    bishop.” Vallejo also introduced evidence of his own religious
    conduct, testifying that he “went on a mission for a couple years”
    and that later he “was a bishop,” which he “loved.” He testified that
    his responsibilities as a bishop took “fifteen to twenty hours of [his]
    week.” Vallejo thus made significant references throughout the trial
    to his own membership and leadership within the Church of Jesus
    Christ of Latter-day Saints. 15 Vallejo’s counsel therefore could
    lockstep with the respective federal rule, we may consider such state
    cases as well.
    Federal and state cases illustrate the narrow scope of rule 610. See
    Gov’t of the Virgin Islands v. Petersen, 
    553 F.2d 324
    , 328 (3d Cir. 1977)
    (“[Federal Rule of Evidence] 610[] clearly prohibits such testimony
    [of religious affiliation and beliefs] when it is used to enhance the
    witness’[s] credibility . . . .”); State v. Marvin, 
    606 P.2d 406
    , 409 (Ariz.
    1980) (“Appellant complains that testimony concerning his Mormon
    beliefs was improperly excluded by the trial judge. We do not
    agree. . . . The testimony concerning religious beliefs was intended to
    bolster appellant’s credibility . . . . [A] witness [may not] seek to
    enhance his testimony in reliance [on religious beliefs].”). Rule 610
    does not prohibit references to religion wholesale, however. United
    States v. Davis, 
    779 F.3d 1305
    , 1308–09 (11th Cir. 2015) (“Evidence of
    religious beliefs or opinions may be admitted for another purpose”
    than “to attack or support the witness’s credibility.” (internal
    quotation marks omitted)); State v. Stone, 
    728 P.2d 674
    , 677 (Ariz. Ct.
    App. 1986) (“[I]f such information is probative of something other
    than veracity, it is not inadmissible simply because it may also
    involve a religious subject as well.”); 28 CHARLES ALAN WRIGHT ET.
    AL., FEDERAL PRACTICE AND PROCEDURE § 6152 (2d ed. 2018) (“[A] . . .
    policy assumption underlying [r]ule 610 is compelling for the very
    reason that many people presume a strong connection between
    religious belief and moral character; evidence of religious belief or
    lack thereof may be highly prejudicial.”).
    15Vallejo contends that testimony concerning his work as the
    bishop of his local congregation was “presented only to show he was
    (continued . . .)
    22
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    Opinion of the Court
    reasonably have thought that an objection to the testimony about a
    spiritual prompting could make it more difficult to argue that he
    should be permitted to introduce evidence about Vallejo’s own
    church service.
    ¶ 78 Moreover, to prevail, Vallejo needs to show that reasonably
    competent trial counsel necessarily would have objected to the
    testimony. And that means that reasonably competent counsel
    would have believed that the jury would react to the testimony in
    the way that Vallejo predicts. Vallejo assumes that there is a “strong
    likelihood that Utah County jurors” would have considered
    Mother’s intuition to be “a manifestation from God confirming the
    veracity of HK’s allegations.” But that is an assumption we are
    unwilling to make based on the sole fact that the jury was selected
    from Utah County. Certainly, a juror might draw the conclusion
    Vallejo fears, and had counsel objected and the judge sustained the
    objection, we would be hard-pressed to call that an abuse of the
    district court’s discretion. But it is entirely another matter to assume
    that a member of the jury would inevitably react in the way Vallejo
    describes such that we would conclude that his trial counsel was
    deficient for failing to object.
    ¶ 79 In other words, Vallejo’s assumption about how a “Utah
    County” juror must have responded to the testimony does not
    convince us that trial counsel’s failure to object was the product of
    deficient performance. After all, trial counsel sat through voir dire
    and observed the jurors’ responses to evidence as it was presented.
    Counsel was therefore in a much better position to gauge how these
    particular “Utah County” jurors might respond to this evidence than
    we are. We are therefore reticent to conclude that Vallejo’s counsel
    had no tactical reason to not object to the testimony and that the
    provision of objectively reasonable legal representation required an
    objection.
    II. Attorney-Client Privilege
    ¶ 80 Vallejo next argues that the admission of Rocky Steele’s
    testimony, in which he attested to statements Vallejo made to him at
    the farmhouse, was improper because the statements were protected
    juggling work, school, and church duties.” Even if we were to credit
    that assertion, it does not require much imagination to see that
    Vallejo might have been hoping for some of the same testimony
    bolstering that he argues Mother’s testimony enjoyed.
    23
    STATE v. VALLEJO
    Opinion of the Court
    by the attorney-client privilege under Utah Rule of Evidence 504(b).
    At trial, Vallejo bore the burden of establishing that an attorney-
    client relationship existed, the communication of confidential
    information, and that the purpose was to obtain legal advice. UTAH
    R. EVID. 504(b); 16 S. Utah Wilderness All. v. Automated Geographic
    Reference Ctr., 
    2008 UT 88
    , ¶ 33, 
    200 P.3d 643
    . The district court
    concluded that Vallejo did not meet his burden of establishing that
    the statements were privileged.
    ¶ 81 The day prior to the farmhouse meeting, Kathleen visited
    with Steele and his wife and shared with them that she had learned
    of the allegations. Vallejo and Kathleen discussed the allegations
    with Steele the next day while they drove to the farmhouse and
    waited there for Vallejo’s Brother—an attorney—to arrive. Steele
    described that Vallejo talked about “the accusations and the stress of
    it, and the emotion of it.” “Emotions were on the surface, were very
    raw,” Steele described. Vallejo also talked with Steele about “things
    that had happened that weren’t the accusations, but things that . . .
    happened that weren’t appropriate.”
    ¶ 82 Vallejo contends that three statements that he made to
    Steele at the farmhouse should have been excluded. First, Steele
    testified that Vallejo said “he would lay on the couch with [H.K. and
    J.K.], . . . that he would be very close with them physically
    sometimes . . . on the couch at night.” Second, Steel testified that
    while Vallejo “insinuat[ed]” that he did not engage in the alleged
    conduct, Vallejo never expressly denied the allegations—“he never
    said, ‘I did not do it.’” And third, Steele testified that Vallejo told
    him about an instance when J.K. sat on top of Vallejo’s foot on the
    couch. Steele testified that Vallejo told him that he then “started to
    move his foot in a way to arouse her, to stimulate her” and “that he
    _____________________________________________________________
    16 Under rule 504(b), “confidential communications made for the
    purpose of facilitating the rendition of professional legal services to
    the client” are privileged. UTAH R. EVID. 504(b) (2014). Rule 504(b)
    requires that communications were between “the client and the
    client’s representative and [or] the lawyer[] [or] lawyer’s
    representative,” or meet other criteria not relevant here. Id. 504(b)
    (2014).
    We quote the version of the rule in effect at the time that the
    communications were made in 2014, which was the same version in
    effect at the time that the privilege was asserted in 2017.
    24
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    Opinion of the Court
    was sorry about that, and . . . that it was just dumb. He didn’t know
    why he did it.”
    ¶ 83 The district court made extensive factual findings and
    conclusions of law. The district court found:
    Defendant picked up Mr. Steele . . . and drove him to
    [Vallejo’s brother’s] nearby farmhouse. Kathleen was
    present. During the drive and after arriving there,
    Defendant and Kathleen spoke to Mr. Steele about the
    allegations, about how difficult Christmas had been,
    about Defendant’s and Kathleen’s own private
    discussions on the matter, about Defendant’s
    conversation with the [church leader] where he was
    told of these allegations, about the emotions they’ve
    had since then, and about the effect the allegations are
    having on their family . . .
    Later, . . . Defendant’s brother and a criminal defense
    attorney [Brother] []arrived. [Brother] wanted to
    discuss legal strategies with Defendant, so [Brother]
    asked Kathleen and Mr. Steele to leave the room. They
    both did, and neither of them heard anything in
    Defendant’s private conversation with [Brother]. . . .
    In the months ensuing the disclosure of the
    allegations, Defendant continued to discuss things with
    Mr. Steele. . . . Defendant told Mr. Steele how stressful
    things were. At one point . . . Defendant suggested that
    maybe [Brother] and Mr. Steele could represent him.
    Mr. Steele replied that he was not a practicing attorney
    and that Defendant needed to hire a criminal defense
    attorney. This was the first time—in the context of
    these criminal accusations—that Defendant mentioned
    anything about Mr. Steele’s legal background or
    suggested anything about Mr. Steele’s possible
    provision of legal services . . . The trial court also found
    that Vallejo continued to talk to Steele after he had told
    Vallejo that he could not provide him with any legal
    assistance, again requested that Steele represent him,
    and was again told by Steele that he was not a
    practicing attorney.
    ¶ 84 The district court then concluded that Vallejo failed to carry
    his burden of establishing the existence of an attorney-client
    privilege under rule 504 of the Utah Rules of Evidence. The district
    court concluded that “[n]o evidence indicates that the[] statements
    25
    STATE v. VALLEJO
    Opinion of the Court
    [made at the farmhouse] were made for the purpose of facilitating
    Mr. Steele’s rendition of professional legal services,” as required
    under rule 504(b)(1). Rather, “all the evidence indicates that, at least
    until [Brother] arrived, it was a conversation among good friends
    about a traumatic circumstance in the lives of Defendant and his
    wife.” The district court noted that “Mr. Steele offered no legal
    advice—ever—and he was never asked for any. He just listened as
    Defendant and his wife unburdened their cares, worries, and fears.”
    And the district court concluded that “other than testifying that he
    always thought Mr. Steele was an attorney, Defendant offers no
    evidence that his farmhouse communications were made for the
    purpose of facilitating Mr. Steele’s rendition of professional legal
    services to him.”
    ¶ 85 Vallejo largely ignores these factual findings and focuses on
    Vallejo’s characterization of the events. At the hearing, Vallejo
    testified that the purpose of the farmhouse meeting was “[t]o get
    counsel” with regard to H.K.’s and J.K.’s allegations and that he
    sought legal counsel from Steele.
    ¶ 86 But on cross-examination, Vallejo acknowledged that he
    knew that Steele was not a criminal defense attorney and stated that
    he knew “[f]rom the get go” that he was not going to hire Steele as
    an attorney.
    ¶ 87 On re-direct, Vallejo’s counsel attempted to salvage
    Vallejo’s testimony:
    Q. [At] the meeting where your brother was present,
    did you seek [Steele] out to give you advice about this
    case?
    A. Initially, no. I did not want to, but my wife had
    already gone to him and talked a little bit, and then
    yes, I did want him—I did want his help.
    Q. Okay. And we’re talking about at the meeting itself,
    were you seeking legal advice from him at that time?
    A. Yes. Yes.
    In addition, Vallejo gave conflicting testimony as to whether he
    continued to seek legal counsel from Steele after the farmhouse
    meeting. 17
    _____________________________________________________________
    17 At the same hearing, Steele testified about the farmhouse
    meeting. He testified that he understood the purpose of the meeting
    (continued . . .)
    26
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    Opinion of the Court
    ¶ 88 In other words, the district court’s legal conclusion rests on
    unchallenged factual findings. Specifically, the district court found
    that when they met in the farmhouse, Vallejo was not seeking legal
    advice from Steele. The district court noted that Vallejo had offered
    “no evidence that his farmhouse communications were made for the
    purpose of facilitating Mr. Steele’s rendition of professional legal
    services.”
    ¶ 89 Although Vallejo does not couch his argument in terms of a
    challenge to the district court’s factual findings, he does take aim at
    them, arguing that Vallejo was engaged in “a conversation with a
    view toward obtaining legal services.” But Vallejo has not pointed us
    to evidence that would cause us to second-guess the district court’s
    finding that Vallejo was unburdening his soul to a friend, and that
    he was not looking to Steele for legal advice. The most compelling
    testimony pointing the other direction is Vallejo’s own assertion that
    he sought legal advice from Steele. But, in light of the other evidence
    in front of the district court, and Vallejo’s concession on cross-
    examination that he was not looking to retain Steele, we are
    unwilling to say that the district court’s factual findings were clearly
    erroneous or that the court otherwise erred in concluding that
    Vallejo failed to establish the existence of a privilege.
    III. Prejudicial Effect of the Use of the Word “Victim”
    ¶ 90 Finally, Vallejo raises several claims based on a handful of
    references to H.K. and J.K. as a “victim” or “victims” during trial.
    Vallejo argues that “[w]ithout the inappropriate references to HK
    and JK as victims, it is reasonably likely the outcome of the trial
    would have been different.” And Vallejo views these inappropriate
    references as more problematic because the word “victim” was also
    used throughout the trial to refer generally to individuals that are
    dealing with or disclosing sexual abuse.
    was for Vallejo, who he described as “one of my best friends,” to
    “just talk to me and tell me, this was what’s going on.” Steele
    testified that there was no discussion at that meeting of him
    providing legal representation to Vallejo. Specifically, Steele stated
    that Vallejo never said anything about a legal strategy in their
    conversation, and that the only discussion of legal strategy came
    from Vallejo’s Brother—the criminal defense attorney—at the end of
    the meeting.
    27
    STATE v. VALLEJO
    Opinion of the Court
    ¶ 91 On the second day of trial, Vallejo’s trial counsel objected to
    a question the State posed to H.K. on direct examination. During the
    discussion that ensued over the admissibility of the testimony, the
    judge stated, “it sounds like it’s just contextual for how the victim
    responded, so overruled.” Vallejo’s trial counsel then asked for the
    jury to be excused from the room and moved for a mistrial. Vallejo’s
    counsel asked for a mistrial because the “[c]ourt looked at the
    witness just now and referred to her . . . as the victim.” The court
    denied the motion for a mistrial noting that the court believed the
    “jury [didn’t] pick[] up on” the comment. The court gave a curative
    instruction based on the model jury instruction regarding the judge’s
    neutrality.
    ¶ 92 Later in the trial, a police officer used the term “victim” or
    “victims” three times while testifying. First, the police officer
    engaged in the following exchange on direct examination:
    Q. What initial information did you obtain about [the
    Vallejo] case when it was assigned?
    A. The initial information was that two sisters had been
    molested by Keith Vallejo.
    Q. Okay. How did you proceed with your investigation
    at that point?
    A. Because it was a third-party report, I was waiting
    until I received the initial reporting information from
    the actual victims.
    ¶ 93 The prosecutor then asked questions about the typical
    collection of sexual assault evidence. The officer explained that if an
    individual reports a sexual assault within a limited timeframe, a
    clinic will “collect evidence from the victim of the crime that’s
    reporting this.”
    ¶ 94 Later, the prosecutor asked questions about the typical use
    of a sexual assault evidence collection kit and why he did not use
    one in his investigation. The officer stated,
    A. Because by the time I had this reported to me . . . I
    would not expect in that case to get any kind of
    evidence from anybody, whether it be the suspect or
    the victim in that typical case like that . . . .
    ¶ 95 At that point, Vallejo’s counsel objected and stated, “That’s
    the third time that [the officer has] used the word victim in referring
    to [H.K.] and [J.K.].” The district court responded that he did not
    “hear [the officer] talking about [H.K.] and [J.K.] that way.” Vallejo’s
    counsel conceded that the second and third references were more
    28
    Cite as: 
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    Opinion of the Court
    general but that the first reference was to H.K. and J.K. directly. The
    prosecutor agreed to instruct the officer to not use the term victim.
    ¶ 96 Earlier that day, the State’s expert witness—a clinical social
    worker—used the term “victim” three times while testifying about
    misconceptions about sexual abuse before Vallejo’s counsel asked for
    her to use different language. While explaining general
    misconceptions about individuals who have been sexually assaulted,
    the expert witness stated that there is often a belief that “a victim
    will go right in and report what happened to them,” and “that a
    victim will fight in a situation where they’re being sexually
    assaulted.” The expert also stated that as a “rape crisis coordinator,
    one of the things we did [wa]s [go] to the hospital right when a
    victim reported.”
    ¶ 97 At that point, the State requested a sidebar to address the
    issue that the expert witness referred to her “patients as victims.”
    Vallejo’s counsel asked for the expert to use “clients or patients”
    instead and the court and prosecutor agreed. After the sidebar, the
    expert used the word “victim” six more times, although she usually
    corrected herself.
    ¶ 98     Vallejo argues that the district court erred in denying the
    motion for mistrial. As noted above, “[w]e will not reverse a trial
    court’s denial of a motion for mistrial absent an abuse of discretion.”
    State v. Cardall, 
    1999 UT 51
    , ¶ 19, 
    982 P.2d 79
     (citation omitted).
    “[U]nless a review of the record shows . . . that the incident so likely
    influenced the jury that the defendant cannot be said to have had a
    fair trial, we will not find that the court’s decision was an abuse of
    discretion.” 
    Id.
     (alterations in original) (citation omitted).
    ¶ 99 Vallejo’s motion for mistrial was based on the court’s
    apparently inadvertent use of the word “victim” to refer to H.K.
    While improper statements made by the court are serious, the court
    gave a curative instruction and crafted it so as to attempt to not
    further bring the jury’s attention to his improper comment. 18
    _____________________________________________________________
    18 We agree with Vallejo that curative instructions are not a “cure-
    all.” See State v. Harmon, 
    956 P.2d 262
    , 273 (Utah 1998) (plurality
    opinion). And we take seriously any remark or conduct that a judge
    may make that could give a jury an impression of partiality. But
    here, given the inadvertent and solitary incident of the judge’s use of
    “victim” to refer to H.K., we conclude that the curative instruction
    was sufficient, especially because the judge gave a general curative
    (continued . . .)
    29
    STATE v. VALLEJO
    Opinion of the Court
    ¶ 100 We agree that the judge’s remark was ill-advised and
    unfortunate. But given the context of the single statement and the
    judge’s efforts to correct it, the district court did not abuse its
    discretion by denying the motion for a new trial.
    ¶ 101 Vallejo next argues that his counsel was ineffective for
    failing to continue to object to the officer’s and expert’s use of the
    word “victim.” Vallejo states that “[t]o the extent counsel should
    have objected sooner or more frequently, counsel was ineffective.
    Counsel was aware of the error and had made a previous motion for
    mistrial. Thus, no conceivable strategy supports failure to object each
    time the reference was made . . . .” In his reply brief, Vallejo phrases
    this as “counsel was ineffective for failing to immediately object and
    make another motion for mistrial when [the police officer] referred
    to HK and JK as ‘victims.’”
    ¶ 102 We again recognize the gravity of referring to witnesses
    as victims during a trial. And we will assume, without deciding, that
    counsel’s failure to object resulted in ineffective assistance. This
    requires us to focus our inquiry on whether this prejudiced Vallejo.
    Under Strickland, Vallejo must “show that there is a reasonable
    probability that, but for counsel’s unprofessional errors, the result of
    the proceeding would have been different.” Strickland v. Washington,
    
    466 U.S. 668
    , 694 (1984). “A reasonable probability is a probability
    sufficient to undermine confidence in the outcome.” 
    Id.
    ¶ 103 As described above, the police officer made one reference
    to H.K. and J.K. as victims. This happened when he explained that
    “[he] wait[ed] until [he] received the initial reporting information
    from the actual victims” before investigating the Vallejo case. His
    other use of the term referred to victims in general and not to H.K. or
    J.K. specifically. The expert similarly spoke in terms of her
    instruction to avoid drawing further attention to the improper
    comment.
    We heed the critiques that Justice Durham thoughtfully leveled at
    curative instructions. See 
    id.
     at 277–79 (Durham, J., concurring). And
    we should be careful before concluding that a curative instruction
    undid the harm that could potentially flow from a judge seeming to
    comment on the merits of a matter. With that caveat well in mind,
    here the curative instruction did not reinforce the judge’s mistake,
    and the judge’s comment was isolated and fleeting. Taken together,
    we are convinced that the comment did not taint the proceeding and
    does not demand a mistrial.
    30
    Cite as: 
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    Opinion of the Court
    generalized experience working with victims of sexual assault. So it
    is unlikely that the jury would have understood the expert to be
    opining that H.K. and J.K. were victims.
    ¶ 104 Vallejo argues that the references “implied that the jury
    should consider HK and JK to be victims because they had made
    allegations against [Vallejo].” And he asserts that the stakes were
    high because the “case hinged on credibility.” “The impermissible
    references to HK and JK as victims went to the ultimate issue and
    unfairly and improperly bolstered their credibility.” We understand
    his concerns. But we cannot agree with Vallejo’s conclusion that
    “[w]ithout the inappropriate references to HK and JK as victims, it is
    reasonably likely the outcome of the trial would have been
    different.”
    ¶ 105 The jury heard extensive and detailed testimony from J.K.
    and H.K. about the abuse. The jury heard testimony from J.J. about
    H.K.’s disclosure of the abuse the day after Vallejo digitally
    penetrated her vagina. An expert witness testified about common
    reactions of individuals that experience sexual abuse—including
    reasons for delayed disclosure—which provided context for H.K.’s
    and J.K.’s behavior. And Vallejo’s own friend, Rocky Steele, testified
    to statements Vallejo had made to him about laying on the couch
    closely with H.K. and J.K. at night and that Vallejo once “move[d]
    his foot in a way to arouse [J.K.], to stimulate her” when she sat on
    his foot.
    ¶ 106 Given this evidence, we conclude that the reference to
    H.K. and J.K. as victims—and the other references to victims
    generally—did not prejudice Vallejo. 19
    CONCLUSION
    ¶ 107 Vallejo has failed to demonstrate that his trial counsel’s
    actions fell below an objective standard of reasonableness with
    regard to the failure to move to sever the charges as well as failure to
    _____________________________________________________________
    19  Vallejo also argues that the references to H.K. and J.K. as
    victims prejudiced him by violating his “constitutional right to the
    presumption of innocence.” See, e.g., State v. Devey, 
    2006 UT App 219
    ,
    ¶¶ 9, 17, 19, 
    138 P.3d 90
    . Vallejo contends that the district court’s
    statement, along with those from the officer and the expert,
    prejudiced his ability to receive a fair trial. For the reasons
    articulated above, we are unconvinced that these references
    impacted the jury’s verdict.
    31
    STATE v. VALLEJO
    Opinion of the Court
    object to the testimony in question provided by J.J., H.K., and
    Mother. We conclude that Vallejo did not demonstrate that the
    district court erred in finding that he did not seek legal advice from
    Steele and using that finding to conclude that no attorney-client
    privilege attached to their conversation. We also conclude that the
    district court’s denial of Vallejo’s motion for mistrial was not an
    abuse of the district court’s discretion and that Vallejo did not suffer
    prejudice from the references to H.K. and J.K. as “victims.” We
    affirm Vallejo’s convictions.
    32
    

Document Info

Docket Number: Case No. 20180041

Citation Numbers: 2019 UT 38

Filed Date: 7/29/2019

Precedential Status: Precedential

Modified Date: 3/18/2020