State v. Moore , 2021 UT App 75 ( 2021 )

2021 UT App 75THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JOSEPH MOORE,
Appellant.
Opinion
No. 20190360-CA
Filed July 9, 2021
Second District Court, Ogden Department
The Honorable Jennifer L. Valencia
No. 181900315
Cherise M. Bacalski and Emily Adams, Attorneys
for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN FORSTER and SENIOR JUDGE
KATE APPLEBY concurred. 1
POHLMAN, Judge:
¶1 A jury convicted Joseph Moore of human trafficking of a
child and other crimes. Moore appeals, claiming that his trial
counsel was constitutionally ineffective in not objecting to
certain expert witness testimony and in not seeking a mistrial.
Because Moore has not shown that he was prejudiced by his
counsel’s performance, we affirm.
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
State v. Moore
BACKGROUND 2
¶2 While participating in a program for troubled youth,
sixteen-year-old Mindy 3 met Moore’s twenty-two-year-old
daughter (Daughter). The two became friends, and Daughter
told Mindy about a website they could use to arrange sexual
encounters with men for money. Daughter explained that men
would pay more for an encounter with two girls and that
together they could each make $200 to $300 per appointment.
The proposal made Mindy nervous, but she liked the idea of
making money to help support her family and to support her
drug addiction.
¶3 Within a week, Daughter introduced Mindy to Moore.
Moore, who was aware of Daughter’s discussions with Mindy,
suggested that Mindy have her nipples pierced “because it
would attract more men.” He drove Mindy to a piercing and
tattoo parlor where he knew one of the employees. Because
Mindy was under eighteen, Moore signed paperwork falsely
stating that he was the one having his nipples pierced.
¶4 Moore also explained to Mindy that he would “partner”
with the young women in the sex-for-money enterprise and that
“[a]nything that [they] needed he would do.” For example, he
would “recommend [them] to his friends,” and he would help
them create online profiles and advertisements for their services
using language that would not be flagged for illegal activity. He
2. “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.” Layton City v. Carr, 2014 UT App 227, ¶ 2 n.2, 336 P.3d
587 (cleaned up).
3. A pseudonym.
20190360-CA 2 2021 UT App 75State v. Moore
also would drive them to appointments and wait outside so that
he could “protect” them “if anything went wrong.”
¶5 With Moore’s help, Mindy and Daughter posted their
online profiles and advertisements and started taking
appointments. When customers responded to an advertisement,
Mindy, Daughter, and Moore would discuss when and where
the encounter would occur. The three would also ensure that
Moore could arrange his work schedule so that he could drive
Mindy and Daughter to the appointments.
¶6 Over the next three months, Mindy and Daughter had at
least one appointment almost every day in which they engaged
in sex for money. In exchange for Moore’s assistance in setting
up the appointments, providing transportation, and acting as
their “muscle,” Mindy and Daughter paid him part of the
proceeds they earned. They also often paid for Moore’s meals
and gas. Overall, Mindy estimated that she paid Moore about
forty percent of her total earnings.
¶7 Moore’s involvement in the operation ran smoothly until
Mindy decided to end the arrangement because she felt that she
and Daughter were “being bossed around and [she] didn’t really
like that . . . [and] it became more like [Moore] was the boss.” He
decided which appointments the young women went to and
which ones they did not. Gradually, Mindy felt that they were
doing more of what Moore wanted and less of what Mindy and
Daughter wanted.
¶8 The enterprise eventually raised suspicion, and Mindy
and Daughter both confirmed to authorities that Moore had
helped them engage in a commercial sex operation for nearly
three months. The State charged Moore with one count of
human trafficking of a child, one count of aggravated
exploitation of a child prostitute, and one count of exploiting
20190360-CA 3 2021 UT App 75State v. Moore
prostitution. Moore pleaded not guilty, and the case was set for
trial.
¶9 At trial, the State called as its first witness a professor
(Expert) “to educate the jury on human trafficking” and to dispel
some “common misconceptions” about the subject. She
explained that human trafficking generally occurs when a
person “recruits, obtains, harbors, transports . . . or entices”
others through force or fraud “for the purpose of their sex or
labor.” She further explained that children engaged “in sexual
economies,” including prostitution and pornography, are
considered “sex trafficked” because children “cannot consent to
their own abuse.”
¶10 Expert then explained that individuals who are trafficked
vary by age, race, and class, and it “is not just an international
phenomenon”; it occurs in Utah and throughout the United
States. She also explained that a person does not have to be
kidnapped to be trafficked; rather, one can “be trafficked out of
their own home” and even by a parent. She further explained
that those who are trafficked are not always “locked up in
basements” or “hidden from sight,” and that while some will
report the trafficking almost immediately, others may stay in
“abusive conditions” for years and even decades. She stated that
a trafficker “might break a person’s will to leave” by debilitating
or “literally” exhausting that person.
¶11 Expert testified that traffickers employ a range of
recruitment methods. Some use force or violence to compel
someone to participate in a sex-for-money enterprise; others
establish a romantic relationship with an individual and then
appeal to that individual’s emotional needs to impel
participation. In other cases, a trafficker may employ a business
methodology whereby the trafficker appeals to an individual’s
need for money. Someone who is impoverished or has a drug
addiction may be particularly vulnerable to a trafficker’s
20190360-CA 4 2021 UT App 75State v. Moore
proposal. Expert also described “peer to peer recruitment,”
explaining that someone being trafficked may be used to recruit
others.
¶12 Expert also described the trauma one who has been
trafficked may experience. She explained that individuals may
be fearful, angry, and depressed and that the trauma associated
with being trafficked can impact a person’s memory. Expert also
identified some of the red flags that might indicate a minor is
being trafficked, including missing school, falling asleep
frequently, and suddenly having nice things.
¶13 Finally, Expert testified about the different ways sex
trafficking is advertised, including through websites and on
social media. She also explained that trafficking is a lucrative
business because a trafficker can “sell a person over and over
again.” And child trafficking can be especially lucrative in part
because of the “huge demand” for young girls known as “cherry
girls” who “just had their first period.”
¶14 Throughout Expert’s testimony, she used the word
“survivor” to refer to individuals who have been trafficked. She
(along with the prosecutor) also used the word “victim” a
handful of times. 4 But Expert never used either word in
reference to Mindy or Daughter, nor did she opine on whether
Moore had engaged in human trafficking. She acknowledged
that she knew nothing about the facts of the case and was
speaking only generally.
4. Early in her testimony, Expert contrasted the two words,
explaining that “survivor” refers to someone who “has survived
some sort of traumatic events,” while “victim” is often used to
refer to a “legal victim,” that is, someone who could “have had a
legal case.”
20190360-CA 5 2021 UT App 75State v. Moore
¶15 Moore’s trial counsel did not object to the relevance of
Expert’s testimony. But after Expert testified, the district court
noted outside the presence of the jury that it needed to find that
Expert’s “testimony was appropriately entered” under Rule 702
of the Utah Rules of Evidence, 5 and it expressed concern that
“various parts of her testimony . . . didn’t seem to have
applicability to the facts of this case.” The court observed that
Expert “essentially provide[d] a lecture to the jury on human
trafficking,” and that some of her testimony, including the
“comments about children being virgins,” were disconnected
from the actual facts. Still, the court noted that the lack of an
apparent “direct[]” connection to this case “could cut two
different ways,” and it invited the parties to submit briefing on
the testimony’s admissibility.
¶16 In response, the State filed a memorandum; Moore’s trial
counsel did not. The State argued that although some parts of
Expert’s testimony “did not readily apply to the facts of this
case,” other parts would be useful to the jury in understanding
Mindy’s “behaviors.” To address the testimony that “may not
have applied to the evidence [the jury] heard,” the State
suggested a cautionary instruction informing the jury that it
could disregard irrelevant testimony.
¶17 The district court raised the issue again while reviewing
the proposed jury instructions with counsel. Moore’s counsel
agreed that the jury should be cautioned “that some of what
5. Rule 702 of the Utah Rules of Evidence governs the
admissibility of expert testimony. Trial courts perform a
gatekeeping function relative to expert testimony and are tasked
with ensuring that the principles forming the basis of the
expert’s testimony are reliable, are based on sufficient facts or
data, and “have been reliably applied to the facts” of the case.
State v. Turner, 2012 UT App 189, ¶ 18, 283 P.3d 527 (cleaned up).
20190360-CA 6 2021 UT App 75State v. Moore
[Expert] said is not applicable to this case,” but counsel was
wary about overemphasizing any particular aspect of the
testimony. After additional discussion with both attorneys, the
court ultimately instructed the jury, “Some portions of the expert
testimony may not apply to the evidence you heard. You may
choose not to consider any portions of the expert testimony
about human trafficking that are not applicable to the evidence
presented.”
¶18 After Expert testified, Mindy took the stand. She
explained how she came to be involved in a commercial sex
enterprise with Daughter and Moore, and she described the
specifics of Moore’s involvement. She admitted that as the result
of trauma and drug use, “[t]here [were] bits and pieces” of the
relevant period that she could not recall, but she remembered
“the majority of what happened.” And when asked whether she
might have lied because she was angry with Moore, she stated
that she was “not mad at [him]” and did not “wish bad things
upon [him].”
¶19 Although Daughter did not testify at trial, another of
Moore’s daughters (Second Daughter) did. Second Daughter
testified that on several occasions, Moore told her that he had
taken Daughter and Mindy “to Salt Lake to meet a guy to have
sex and then they would pay him for driving them out there and
to drive them back to Ogden.” She further testified that Moore
had described how he helped Daughter create a profile on a
website used to advertise prostitution.
¶20 Moore’s stepdaughter (Stepdaughter) also testified. She
stated that “a few times” Moore told her “that [Daughter] was
behind on rent [she owed Moore for the house they shared] and
she ha[d] to have sex with people for money in order to help pay
the rent.” When asked whether she would lie to get Moore
convicted, Stepdaughter said “no” and that she wanted only “to
have justice served on [Moore] for the things that he’s done.”
20190360-CA 7 2021 UT App 75State v. Moore
¶21 In addition to Moore’s family members, Mindy’s sister
testified. She described receiving an expensive makeup palette
as a surprise gift from Mindy while they were eating lunch with
Daughter and Moore. She further explained that during the
lunch, Moore told her he was “really struggling” and he
“need[ed] to find some girls to pimp out.” At first, she thought
Moore must have been joking. But when she realized he was
serious, she made it clear that she was not interested. She left the
lunch concerned that Mindy was involved in prostitution.
¶22 In his defense, Moore called four character witnesses.
First, he called the operator (Bus Driver) of the UTA bus that
Moore rode with his wife and school-aged daughter two to three
times per week over a five-year period. Bus Driver testified that
during that time he never overheard Moore mention
prostitution. But Bus Driver also testified that Moore had once
shown him a picture of Daughter that appeared to be an online
solicitation for prostitution and that Moore was “[u]pset” by it.
And when Bus Driver was asked if he recalled talking to a
detective about Bus Driver “paying [Daughter] for sex,” he
invoked his right under the Fifth Amendment to not answer the
question. 6
¶23 Next, Moore elicited testimony from his neighbor and his
neighbor’s daughter, each of whom had known Moore for years.
Each denied any knowledge of a prostitution business, and the
neighbor’s daughter testified that Moore had never been
inappropriate with her. Similarly, Moore’s former coworker
testified that during the many years she had known him, she
had never heard him talk about prostitution and had never seen
him act inappropriately around young women.
6. The detective subsequently testified that Bus Driver told the
detective that he had paid Daughter for sex and that he had
made the arrangements “one on one with her.”
20190360-CA 8 2021 UT App 75State v. Moore
¶24 The jury found Moore guilty as charged. He now appeals.
ISSUES AND STANDARD OF REVIEW
¶25 Moore contends that his trial counsel was constitutionally
ineffective for not objecting to irrelevant portions of Expert’s
testimony and for not objecting to Expert’s use of the words
“victim” and “survivor.” He also contends that trial counsel was
constitutionally ineffective for not seeking a mistrial after the
district court raised concerns about the relevancy of Expert’s
testimony. “An ineffective assistance of counsel claim raised for
the first time on appeal presents a question of law.” State v. Ott,
2010 UT 1, ¶ 16, 247 P.3d 344 (cleaned up).
ANALYSIS
¶26 “The Sixth Amendment to the United States Constitution
guarantees a criminal defendant the assistance of counsel for his
defense, meaning that he has the right to effective assistance of
counsel.” State v. Bond, 2015 UT 88, ¶ 59, 361 P.3d 104 (cleaned
up). To prevail on an ineffective assistance of counsel claim, a
defendant must make two showings: (1) that “counsel’s
performance was deficient” and (2) that the “deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984). Under the first element, a defendant
must show that counsel’s performance “fell below an objective
standard of reasonableness.” Id. at 688. Under the second, a
defendant must show “that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.” Id. at 687.
¶27 To satisfy the second element of the inquiry, “[i]t is not
enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id. at 693.
20190360-CA 9 2021 UT App 75State v. Moore
Rather, “consider[ing] the totality of the evidence before the
judge or jury,” id. at 695, a defendant must “demonstrate a
reasonable probability that the outcome of his or her case would
have been different absent counsel’s error,” State v. Scott, 2020
UT 13, ¶ 43, 462 P.3d 350; see also Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. This “is a relatively high hurdle
to overcome.” State v. Garcia, 2017 UT 53, ¶ 44, 424 P.3d 171.
¶28 If we determine that Moore has made an insufficient
showing on either element of the ineffective assistance inquiry,
we “need not address the other.” State v. Nelson, 2015 UT 62,
¶ 12, 355 P.3d 1031. For the reasons explained below, we
conclude that Moore’s ineffective assistance claims fail because
he has not established prejudice with respect to either claim.
A
¶29 Moore contends that his trial counsel was ineffective
because he did not object to Expert’s “irrelevant and
inflammatory testimony.” He argues that Expert’s testimony
regarding “child trafficking scenarios that had nothing to do
with” the charges against him “inflamed the jury and prevented
[him] from having a fair trial.” Similarly, Moore argues that
Expert’s use of the words “survivor” and “victim” “were
emotionally charged” and “colored the way” the jury viewed
Mindy and Daughter from the trial’s outset. He further posits
that “had the jury not heard the inflammatory information it
heard in the beginning, it might have been able to remain neutral
and consider the strength of . . . Moore’s evidence when
compared to the State’s evidence.”
¶30 Even if we assume that trial counsel performed deficiently
in not objecting to certain aspects of Expert’s testimony, we
disagree with Moore’s assessment of the impact that testimony
had on the jury. For a combination of reasons, we do not view it
20190360-CA 10 2021 UT App 75State v. Moore
as reasonably likely that the jury would have reached a different
verdict if portions of Expert’s testimony, including her use of the
words “victim” and “survivor,” had been excluded.
¶31 First, we reject the premise of Moore’s argument that
Expert’s testimony inflamed the jury. Moore describes Expert’s
testimony as a “litany of graphic, disgusting, horrific images of
children trafficked into the sex trade in truly horrific ways.” We
view the testimony differently. To be sure, the subject of human
trafficking is disturbing and some of the details Expert
mentioned are undoubtedly alarming. But Expert did not paint
graphic and horrific images for the jury; she offered few
examples and testified in a clinical fashion.
¶32 Second, Moore surmises that Expert’s testimony “roused
the jury to fear or vengeance toward [him],” reasoning that the
jury “could not regulate its emotional response” to the evidence
because the testimony lacked context. But before Expert testified,
the jury did know something of the circumstances of the case. It
heard in opening statements that this was a prostitution case
involving a sixteen-year-old who was introduced to Moore by
Moore’s twenty-two-year-old daughter. It also understood that
the State would try to prove that the three discussed “the girls
engaging in commercial sex” and that Moore assisted them by
helping to create advertisements and by providing them
transportation and security. Thus, although Expert mentioned
various human trafficking scenarios, including children being
kidnapped and others being held against their will, there was
little risk that the jury would have understood every scenario to
apply in this case.
¶33 Further, Expert affirmed that she knew nothing of the
relevant facts. She spoke in generalities and offered no opinion
on whether Moore had engaged in any of the forms of human
trafficking. She also never referred to Mindy or Daughter, and
she used the word “survivor” to refer generally to individuals
20190360-CA 11 2021 UT App 75State v. Moore
who have been exploited. We “recognize the gravity of referring
to witnesses as victims during a trial,” State v. Vallejo, 2019 UT
38, ¶ 102, 449 P.3d 39, but “statements referring to the particular
complaining witness in the case as a ‘victim’ often are more
concerning than general statements referring to victims of crime
across a particular population,” State v. Juarez, 2021 UT App 53,
¶ 36. And here, where Expert referred to a range of individuals
and made no reference to Mindy or Daughter, it is less likely that
the jury was unduly influenced by the use of either word.
¶34 Third, the prosecutor’s limited use of Expert’s testimony
in closing argument, and the court’s cautionary instruction that
the jury could disregard any expert testimony it deemed
irrelevant, further tempered the testimony’s effect. Consistent
with the court’s instruction, the prosecutor conceded that
Expert’s testimony was “broad” and “general” and that some of
the scenarios she described were not applicable “because she
hadn’t reviewed the evidence” in Moore’s case. Plus, the
prosecutor referred only to relevant portions of Expert’s
testimony (for example, peer-to-peer recruitment, red flags, and
a minor’s inability to consent) and omitted any discussion of the
portions Moore argues were inflammatory (kidnapping,
trafficking by parents, and trafficking young virgins).
¶35 Finally, in assessing prejudice based on trial counsel’s
alleged deficient performance, our “analysis is counterfactual.”
State v. Ring, 2018 UT 19, ¶ 36, 424 P.3d 845. “To decide whether
a trial affected by error is reasonably likely to have turned out
differently we have to consider a hypothetical—an alternative
universe in which the trial went off without the error.” Id.(cleaned up). Here, Moore invites us to assess the likely outcome
of a hypothetical trial in which Expert did not use the words
“survivor” or “victim” or testify about human trafficking
scenarios untethered to the facts of the case. We consider that
alternative universe and conclude that it is not reasonably likely
that the jury would have reached a different result.
20190360-CA 12 2021 UT App 75State v. Moore
¶36 The State’s case against Moore was strong. Mindy
testified consistently and unequivocally about Moore’s active
participation in her and Daughter’s prostitution. She described
her first meeting with Moore, his encouragement and facilitation
of her body piercing, and his assistance in creating
advertisements, setting up appointments, providing
transportation, and providing security. Her testimony
demonstrated that Moore was well aware she was a minor and
that, at the very least, he knowingly or recklessly transported
Mindy and Daughter for the purpose of promoting their
engagement in prostitution and that he shared in the proceeds of
their enterprise. 7 And although Mindy admitted to having some
memory loss due to trauma and drug use, her testimony
included considerable detail and Moore has not suggested that
her memory was so poor that she could not accurately recall that
Moore transported her and Daughter to their appointments
nearly every day for three months. Further, other than pointing
7. The jury could find Moore guilty of human trafficking of a
child if it found that he had intentionally, knowingly, or
recklessly transported Mindy, a person younger than eighteen,
“for sexual exploitation.” See Utah Code Ann. § 76-5-308.5(2)
(LexisNexis 2017); id. § 76-5-307(1) (defining child as “a person
younger than 18 years of age”); id. § 76-2-102 (identifying
applicable mental states). Similarly, the jury could find Moore
guilty of aggravated exploitation of a child prostitute if it found
that he had intentionally, knowingly, or recklessly encouraged
Mindy “to become or remain a prostitute,” transported her
within the state “with a purpose to promote [her] engaging in
prostitution,” or “share[d] the proceeds of prostitution with
[Mindy].” See id. §§ 76-10-1305(1)(b)–(c), -1306(1)(b); id. § 76-2-
102. Finally, the jury could find Moore guilty of exploiting
prostitution if it found that he had done any of the same with
Daughter. See id. § 76-10-1305(1)(b)–(c); id. § 76-2-102.
20190360-CA 13 2021 UT App 75State v. Moore
to Mindy’s inability to recall “bits and pieces” of the relevant
period, Moore has identified no reason for the jury to disbelieve
her. In fact, Mindy testified that she was not angry with Moore
and did not wish him harm.
¶37 Moreover, Mindy’s testimony did not stand alone.
Mindy’s sister provided incriminating evidence, testifying that
Moore had told her during the relevant period that he “need[ed]
to find some girls to pimp out.” And Moore’s own family
members testified that he had repeatedly admitted to facilitating
the prostitution enterprise. Second Daughter testified that Moore
admitted to her that he helped Mindy and Daughter with their
online advertisements and drove them to their appointments;
Stepdaughter testified that Moore stated more than once that
Daughter needed to prostitute herself to help pay their rent. 8
¶38 Further, although Moore contends that he “mounted a
strong defense,” we share the State’s view that it was “anything
but ‘strong.’” Neighbors and a coworker testified that they were
unaware of Moore’s prostitution scheme, but it proves little that
select acquaintances were unaware of Moore’s criminal activity.
And although Bus Driver testified that he was surprised to hear
that Moore was accused of facilitating prostitution, Bus Driver’s
testimony likely caused more harm than good when he admitted
that Moore shared Daughter’s online advertisement with him
8. Moore offered no reason to doubt the testimony of Mindy’s
sister but contends that Stepdaughter was biased against him
and the credibility of Second Daughter’s testimony “was up for
debate.” Stepdaughter did admit that she would not speak to
Moore’s defense investigator and she testified that she only
wanted to see Moore receive justice “for the things that he’s
done.” Second Daughter testified that her relationship with
Moore was “rocky,” but she stated that she had no reason to lie
about what Moore told her, and her testimony matched Mindy’s.
20190360-CA 14 2021 UT App 75State v. Moore
and independent evidence was introduced that Bus Driver had
paid Daughter for sex.
¶39 In sum, we are not persuaded that if Moore’s trial counsel
had objected to portions of Expert’s testimony and her use of the
words “victim” and “survivor” that the outcome of the case
would have been any different. Her testimony was clinical in
nature and we are confident that the jury was not so inflamed by
the general scenarios she described that it could not remain
neutral and fairly evaluate the evidence presented. Further, the
State’s case against Moore was strong, and it is not reasonably
likely that the jury would have reached a different verdict had
Expert avoided the allegedly off-limits testimony.
B
¶40 Moore next contends that his trial counsel was ineffective
“when he failed to move for a mistrial once the trial court invited
him to weigh in on the irrelevant expert testimony.” Mirroring
the arguments made above, Moore reasons that “[a]nother trial
was necessary” because Expert’s testimony so incited “the jury’s
sympathies” against him that he “never had a chance.”
¶41 To prevail on this claim, Moore must once again show a
reasonable probability that the outcome of his case would have
been different absent counsel’s error. See State v. Scott, 2020 UT
13, ¶ 43, 462 P.3d 350. In other words, Moore must demonstrate
that it is reasonably likely the court would have granted a
motion for a mistrial had one been made. If the motion would
have been futile, his claim necessarily fails. See State v. Makaya,
2020 UT App 152, ¶ 9, 476 P.3d 1025 (“A futile motion
necessarily fails both the deficiency and prejudice prongs of the
Strickland analysis because it is not unreasonable for counsel to
choose not to make a motion that would not have been granted,
and forgoing such a motion does not prejudice the outcome.”).
20190360-CA 15 2021 UT App 75State v. Moore
¶42 We conclude that Moore’s claim fails because he has not
shown a reasonable probability that the district court would
have granted a motion for mistrial based on Expert’s testimony.
In fact, the record strongly suggests that the court would have
denied such a motion.
¶43 “A mistrial is strong medicine.” State v. Whytock, 2020 UT
App 107, ¶ 16, 469 P.3d 1150. Our supreme court has stated that
a “trial court should not grant a mistrial except where the
circumstances are such as to reasonably indicate that a fair trial
cannot be had and that a mistrial is necessary to avoid injustice.”
State v. Butterfield, 2001 UT 59, ¶ 46, 27 P.3d 1133 (cleaned up); see
also State v. Roberts, 2019 UT App 9, ¶ 15, 438 P.3d 885(“Declaring a mistrial is a particularly drastic remedy that is
warranted only when no reasonable alternatives exist.” (cleaned
up)).
¶44 Given that standard, it is not reasonably likely that the
court would have granted a mistrial had one been requested. As
explained above, Expert’s testimony did not deprive Moore of a
fair trial. See supra ¶¶ 30–36. Although portions of the testimony
were admittedly unrelated to the facts of the case, Expert’s
testimony did not inflame the jury against Moore such that a
mistrial was “necessary to avoid injustice.” See Butterfield, 2001
UT 59, ¶ 46.
¶45 Further, we acknowledge that the district court voiced
concern about the scope of Expert’s testimony. But its concern
was not that Expert’s testimony unfairly prejudiced Moore. In
fact, the court observed that the testimony “could cut two
different ways.” The court was instead concerned that it could
not properly admit some of the testimony under Rule 702 of the
Utah Rules of Evidence because it was disconnected from the
facts.
20190360-CA 16 2021 UT App 75State v. Moore
¶46 The court ultimately resolved its concern by cautioning
the jury that it could disregard any irrelevant portions of
Expert’s testimony. Moore has not pointed to anything in the
court’s statements or reasoning to lead us to believe that the
court would have abandoned that approach in favor of declaring
a mistrial. Thus, Moore’s trial counsel did not render ineffective
assistance by not moving for a mistrial.
CONCLUSION
¶47 We conclude that even assuming trial counsel acted
deficiently by not objecting to Expert’s testimony or by not
moving for a mistrial, Moore was not prejudiced as a result. The
irrelevant portions of Expert’s testimony and her use of the
words “victim” and “survivor” were not so inflammatory that
Moore was deprived of a fair trial. Further, Moore has not
persuaded us that there is a reasonable probability that the jury
would have reached a different verdict had these portions of
Expert’s testimony been eliminated. Finally, we are not
persuaded that even if Moore’s trial counsel had moved for a
mistrial that the court would have granted it. For these reasons,
we affirm.
20190360-CA 17 2021 UT App 75