State v. Wilson , 2020 UT App 30 ( 2020 )


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    2020 UT App 30
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Appellee,
    v.
    JACQUAN DAVID WILSON,
    Appellant.
    Opinion
    No. 20171011-CA
    Filed February 27, 2020
    Second District Court, Farmington Department
    The Honorable Robert J. Dale
    No. 151702212
    Scott L. Wiggins, Attorney for Appellant
    Sean D. Reyes and Marian Decker, Attorneys
    for Appellee
    JUDGE RYAN M. HARRIS authored this Opinion, in which
    JUDGES MICHELE M. CHRISTIANSEN FORSTER
    and JILL M. POHLMAN concurred.
    HARRIS, Judge:
    ¶1      In an attempt to prevent his friend (Friend) from showing
    his pregnant girlfriend (Girlfriend) photographic proof of his
    infidelity, Jacquan David Wilson stabbed Friend six times with a
    serrated kitchen knife. A jury convicted Wilson of attempted
    murder, and Wilson appeals that conviction, claiming that his
    trial attorney rendered ineffective assistance. We affirm.
    State v. Wilson
    BACKGROUND 1
    ¶2      Wilson and Friend got to know each other at work,
    and the two of them soon became fast friends. They
    bonded “immediately,” and began spending time “talk[ing],
    text[ing], work[ing] out, hit[ting] the mall, [and] chas[ing]
    women.” At the time, Wilson did not have a permanent
    residence, but instead spent time “bouncing” between different
    places; at one point, for about a month, Wilson moved into
    and lived at Friend’s home with Friend and his parents. After
    living at Friend’s house, Wilson moved on to other
    accommodations, which sometimes included living with
    Girlfriend. Throughout their friendship, and even while he was
    living with Girlfriend, Wilson would periodically send Friend
    photographs of himself having sex with “different women,”
    apparently in an effort to show that “his game was stronger than
    [Friend’s].”
    ¶3     While Wilson was living at Friend’s house, Friend lent
    Wilson some of his clothes, including a pair of True Religion
    jeans (the Jeans). Friend had purchased the Jeans upon receiving
    a promotion at work, and to him, they were not just a pair of
    pants, but were a symbolic “validation” of his professional
    success. Much to Friend’s displeasure, however, when Wilson
    moved out of Friend’s house, he took Friend’s Jeans with him. In
    the weeks that followed, Friend repeatedly asked Wilson to
    return the Jeans, but the two were apparently unable to
    effectuate the transfer.
    ¶4      A couple of months after he moved out, Wilson returned
    to Friend’s house for a visit, and told Friend that he had gotten
    Girlfriend pregnant, which he was excited about because he
    1. “We recite the facts in the light most favorable to the verdict,
    presenting conflicting evidence only as necessary to understand
    the issues on appeal.” State v. Salgado, 
    2018 UT App 139
    , ¶ 2 n.1,
    
    427 P.3d 1228
    .
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    State v. Wilson
    would now have somewhere more permanent “to lay his head
    for nine months.” Meanwhile, Wilson was also seeing another
    woman (Girlfriend Two), who Friend knew was waiting for
    Wilson in the car. Unimpressed with Wilson’s behavior, Friend
    told Wilson he was “irresponsible” and called him “an ass,” and
    then reiterated his request for Wilson to return the Jeans. In
    response, Wilson deflected, stating simply that he would return
    the Jeans later.
    ¶5     Over the course of the next few days, Friend made
    several attempts to retrieve the Jeans. Because Wilson had
    blocked Friend on Facebook after their arguments about
    Wilson’s attitude toward women, Friend began communicating
    through Girlfriend about the return of the Jeans, and at one point
    Friend even visited Girlfriend’s apartment to discuss the matter
    with her. Wilson even began to suspect some romantic
    involvement between Friend and Girlfriend, although no
    evidence of any such relationship is in the record. During the
    course of his communication with Girlfriend, Friend told her
    that he knew she was pregnant, and cautioned her that Wilson
    “may not be the person [Girlfriend] think[s] he is.” He also
    stated that, if he didn’t get his Jeans back soon, he would be
    “[h]otter than hell’s flames.” Eventually, Girlfriend told Friend
    that she and Wilson would swing by Friend’s house to drop off
    the Jeans.
    ¶6      That evening, Wilson came to Friend’s front door,
    knocked, and—when Friend opened the door—handed Friend a
    plastic bag containing the Jeans. The two began arguing, and
    Friend became angry with Wilson, and told Wilson that he was
    going to show Girlfriend—who was waiting in the car—all of the
    pictures Wilson had sent him of Wilson’s sexual exploits. Wilson
    responded by saying that Friend “wasn’t gonna do nothing,”
    and tried to stop Friend from walking to the car. Friend then
    “kind of like pushed [Wilson] out of the way,” not “hard,” “just
    enough to like move him,” and proceeded toward the car where
    Girlfriend was waiting. Friend then began to open the car door,
    calling Girlfriend’s name.
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    State v. Wilson
    ¶7     Suddenly, Friend felt what he thought was a punch in his
    left shoulder, followed by a number of other quick blows to his
    back, upper arm, and face. Although Friend did not immediately
    realize it, Wilson was stabbing him with a serrated kitchen knife
    whose blade was between six and ten inches long. When all was
    said and done, Wilson had stabbed Friend six times, with the last
    blow essentially “fillet[ing] [Friend’s] cheek off like [he] was
    some fish.” Girlfriend heard Friend yell, “He stabbed me,” as
    Wilson jumped in the car and commanded Girlfriend to drive
    away.
    ¶8     After Wilson and Girlfriend drove off, Friend lay bleeding
    in the street, calling for help, until his father heard him and
    drove him to the hospital. Friend had lost a “lot of blood,”
    perhaps as much as “half of his blood volume,” and one of his
    lungs had collapsed, putting him at risk for heart failure. Doctors
    also discovered that one of the stab wounds had resulted in a
    broken rib, an injury that requires “a lot of force” and is usually
    seen in “high velocity injuries” like car accidents. In addition,
    another of the stab wounds severed the cephalic vein in Friend’s
    right arm, and the stab to Friend’s face ran from his right eye to
    his right earlobe and was deep enough to create an open “flap”
    of skin and muscle.
    ¶9      As she drove Wilson away from the scene of the stabbing,
    Girlfriend was so frightened that she hit a curb as she was
    making a U-turn, and popped one of the car’s tires. Wilson
    became “upset, like [Girlfriend] had done it on purpose,” and
    Girlfriend was “crying and hyperventilating” as she drove away.
    She ultimately stopped the car on the side of the freeway
    because the car could not go any further on the popped tire.
    Wilson called another friend (Driver) to come pick him up and,
    later that evening, he “adamant[ly]” told Girlfriend not to “talk[]
    to the police.”
    ¶10 In part due to Wilson’s admonition, Girlfriend waited
    until the next day to call police and give a statement, and she
    later admitted that her initial statement was incomplete. For
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    State v. Wilson
    example, Girlfriend did not tell police that she had seen Wilson
    with a knife, and that, when Wilson jumped in her car after the
    stabbing, she recognized the knife he was holding as one of her
    roommate’s serrated kitchen knives. Girlfriend testified at trial
    that she regretted giving an incomplete statement to police, but
    that she had been scared to say anything against Wilson at the
    time because she was pregnant with his child, still in love with
    him, and afraid to anger him. Although her statement was
    incomplete, she affirmed at trial that the statement, as far as it
    went, had been accurate, including her statement that Friend
    “jumped in the car with me as if [he] was going to hurt me.”
    Indeed, she testified that, when she saw Friend run toward her
    car and open the door, she was “freaking out” because she did
    not know what Friend was going to do, and thought he might be
    “reaching for [her], like he was going to hurt [her].” But in
    response to the State’s questioning, she acknowledged that
    Friend did not actually threaten her or do anything inconsistent
    with simply wanting to get in the car to speak to her.
    ¶11 After he walked away from Girlfriend’s car on the night
    of the stabbing, Wilson called Driver to ask for a ride. Driver had
    given Wilson rides before, so he didn’t think Wilson’s call was
    “terribly out of line,” but when he arrived to pick Wilson up, he
    found Wilson “upset and disheveled,” carrying a knife wrapped
    in a piece of cloth, and demanding a ride from Davis County to
    Salt Lake County. Driver first drove Wilson to pick up some
    clothing, and then headed to Wilson’s desired destination,
    stopping on the way to buy bandages and ointment to treat a cut
    on Wilson’s hand. Wilson told Driver about the stabbing,
    explaining that he had stabbed Friend because Friend had
    threatened Girlfriend. Eventually, Driver took Wilson to a
    church parking lot, where Wilson threw the knife in a dumpster,
    before dropping him off.
    ¶12 The next day, Wilson texted Girlfriend Two and asked her
    to come pick him up. Girlfriend Two, who was unaware of the
    stabbing, took Wilson to her apartment, where the two of them
    spent time with her kids. Then, Wilson texted Driver, who
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    State v. Wilson
    picked him up from Girlfriend Two’s apartment and
    unsuccessfully tried to convince Wilson to turn himself in. While
    Wilson was out, Girlfriend Two saw on Twitter that the local
    police had issued a felony warrant for Wilson’s arrest, and asked
    Wilson about it when he returned. Wilson explained to
    Girlfriend Two that, yes, he was wanted by the police, but that
    Friend had pushed him and that he had acted in self-defense.
    ¶13 The next day was Thanksgiving, and Wilson spent it with
    Girlfriend Two, who testified that Wilson was “paranoid” that
    he would be arrested. Growing increasingly frightened and
    worried, Girlfriend Two texted “the crime stoppers tip line” to
    report that Wilson was with her, and police soon arrived at her
    apartment. Girlfriend Two was so afraid Wilson would see that
    she had been texting the police that she threw her phone behind
    the refrigerator. The police began knocking on the door, shining
    flashlights through windows, and asking to be let in, but for over
    three hours Wilson refused to open the door and would not let
    anyone else do so either. Finally, a police hostage negotiator
    called Wilson’s cell phone and, with Girlfriend Two’s help,
    convinced Wilson to let the police in. Police then arrested Wilson
    and took him to the station for questioning.
    ¶14 During his interview, Wilson intimated that he personally
    felt threatened by Friend and that he may have acted in self-
    defense, although he admitted that Friend had not directly
    threatened him and that he did not see Friend with a weapon. At
    no point in his police interview did Wilson mention attempting
    to protect Girlfriend (rather than himself) from Friend.
    ¶15 While Wilson awaited trial in jail, he continued to
    correspond with both Girlfriend and Girlfriend Two. In addition,
    Wilson discussed the stabbing in a number of recorded jailhouse
    phone calls with yet another woman (Girlfriend Three).
    Recordings of certain edited portions of these calls (Audio Clips)
    were played for the jury at trial, with the text of the
    conversations sometimes (but not always) displayed on a screen.
    In the Audio Clips, Wilson can be heard acknowledging to
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    State v. Wilson
    Girlfriend Three that the police were “recording these
    conversations” and that the conversations were “going to be
    used against [him].” And yet Wilson engaged in lengthy
    discussions in which he described to Girlfriend Three his version
    of the events that led to the stabbing, and specifically made the
    following statements:
    •   “I gotta think of a good reason as to why my
    life was in danger” “because, obviously, my
    story, me telling the truth doesn’t sound
    believable.”
    •   “I eliminate” people who “f*** with me” “real
    quick,” and that “I am not [Friend]” because “I
    don’t call the cops” and instead “handle shit on
    my own.”
    •   “I really put n*****s down, y’all. I really—I
    really have the capacity to kill somebody, you
    understand? And think nothing of it.”
    •   “[I]f [Friend] tries something, I’m going to put
    this n****r in the hospital, I don’t care.”
    •   In a possible reference to Friend attempting to
    tell Girlfriend about his infidelities: “So I’m
    already, in my mind, like, okay, well, don’t
    think you about to, like, f*** me up because I
    ain’t going to let that happen.”
    •   In reference to going to Friend’s house to drop
    off the Jeans: “I’m hoping that I can just drop
    off the shit because I know—I already know
    how I am. If he touch me, I’m going to try to kill
    him.”
    •   “If somebody stabbed me, I’d kill them. That’s
    it. Serious. All [Friend] did was push me and I
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    State v. Wilson
    stabbed him up. . . . All he did was push me
    and hit me and he got stabbed the f*** up.”
    •   “I do feel as though I used a little too much
    force.”
    •   “[Friend] got handled, dog, straight East Coast
    style. He thought I was one of these Utah
    motherf***ers that I was going to tell the cops,
    or get bitch slapped or some shit like that, and
    he got stabbed the f*** up. What do—what do
    you want me to say?”
    At no point in any of the Audio Clips did Wilson state or imply
    that he acted in order to protect Girlfriend or their unborn child
    from Friend’s perceived aggression. In between these
    statements, Wilson can be heard on the Audio Clips using racial
    slurs and repeated foul language, and using demeaning and
    derogatory language about and toward Girlfriend Three, who
    was on the other end of the telephone.
    ¶16 Soon after arresting him, the State charged Wilson with
    attempted murder, a first-degree felony, and obstruction of
    justice, a second-degree felony. 2 Eventually, the case proceeded
    to a jury trial, where Wilson’s attorney advanced a defense-of-
    others theory: that is, he framed the stabbing of Friend as an act
    Wilson took to protect Girlfriend and their unborn baby from
    Friend’s threatening behavior, and argued that Wilson had never
    intended to murder Friend. In his opening statement, counsel
    addressed the Audio Clips that he knew would soon be
    presented to the jury, and expressed his “hope” that the jury
    would understand that these conversations were merely
    Wilson’s attempt “to puff himself up” because he was in jail, and
    stated that they depict him saying “things that are absolutely not
    2. The State asserted that Wilson had obstructed justice by
    throwing the knife in the church dumpster.
    20171011-CA                     8               
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    State v. Wilson
    true in order to make himself seem tougher and better and
    bigger than what he really is.”
    ¶17 After opening statements, defense counsel learned that
    the State was not, after all, going to call Girlfriend Three as a
    witness at trial. Upon receiving this information, counsel
    objected to the State’s use of the Audio Clips, reasoning that,
    without Girlfriend Three’s testimony to put the conversations in
    context, the Audio Clips would be unfairly prejudicial to Wilson
    because of how poorly they reflected on his character. Counsel
    lodged no other objection to the Audio Clips. The trial court did
    not immediately make a ruling on counsel’s objection, and in the
    meantime, Wilson’s counsel located Girlfriend Three and
    secured her commitment to testify for the defense. At that point,
    knowing that Girlfriend Three would in fact testify, counsel
    withdrew his objection to the Audio Clips.
    ¶18 In its case-in-chief, the State called twelve witnesses,
    including Friend, Girlfriend, Girlfriend Two, Friend’s father,
    Driver, and various law enforcement and medical witnesses. The
    Defense called just one witness, Girlfriend Three, who testified
    to her impressions of the Audio Clips. Wilson did not testify.
    ¶19 During the course of the trial, many of the witnesses
    testified using raw, coarse, and profane language, including use
    of the f-word and several variants of the n-word. Friend, for
    example, explained to the jury the difference between the use of
    the terms “n****r” and “n***a,” and testified that those words
    had particular meaning to himself and Wilson, who are both
    black men. Additionally, Friend testified that, during the verbal
    altercation leading up to the stabbing, both he and Wilson used
    the same type of coarse and profane language that the jury heard
    Wilson use in the Audio Clips.
    ¶20 At defense counsel’s request, the trial court instructed the
    jury on both perfect and imperfect defense of others, and gave
    the jury a verdict form with four options on the attempted
    murder count: (1) not guilty; (2) guilty of attempted murder; (3)
    20171011-CA                    9                
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    State v. Wilson
    guilty of aggravated assault, a lesser-included offense; and (4)
    guilty of attempted manslaughter, a verdict that would be
    appropriate if the jury agreed that Wilson had acted in imperfect
    self-defense. Counsel ultimately decided not to request a
    separate instruction on the lesser-included offense of attempted
    manslaughter, a verdict that might have been appropriate had
    Wilson argued, for instance, that he had acted with the outrage
    of a jealous lover. Counsel ultimately chose to mount a defense-
    of-others defense, rather than a jealous-lover defense, and
    reasoned (as the verdict form showed) that the jury would
    already have the option of convicting Wilson of attempted
    manslaughter, if it wished, through the imperfect defense-of-
    others part of counsel’s defense.
    ¶21 After hearing the evidence and deliberating, the jury
    found Wilson guilty of both attempted murder (with a
    dangerous-weapon enhancement) and obstruction of justice, and
    the trial court sentenced Wilson to a prison term of four-years-
    to-life for attempted murder, and a consecutive term of one-to-
    fifteen years for obstruction of justice.
    ISSUE AND STANDARD OF REVIEW
    ¶22 Wilson now appeals his attempted murder conviction, 3
    arguing that his trial attorney provided constitutionally
    ineffective assistance. 4 “When a claim of ineffective assistance of
    3. At oral argument before this court, Wilson clarified that he is
    not appealing his conviction for obstruction of justice.
    4. During oral argument, Wilson also requested that we
    reconsider our denial of a motion he had filed pursuant to rule
    23B of the Utah Rules of Appellate Procedure. But this request
    was made for the first time at oral argument, without previous
    notice to the State; that is, Wilson did not file a written motion
    seeking reconsideration of our previous decision, and did not
    (continued…)
    20171011-CA                     10                
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    State v. Wilson
    counsel is raised for the first time on appeal, there is no lower
    court ruling to review and we must decide whether the
    defendant was deprived of the effective assistance of counsel as
    a matter of law.” Layton City v. Carr, 
    2014 UT App 227
    , ¶ 6, 
    336 P.3d 587
     (quotation simplified).
    ANALYSIS
    ¶23 Wilson argues that his trial counsel provided
    ineffective assistance in three respects: first, by choosing to
    (…continued)
    make any such request in his appellate briefs. Utah appellate
    courts “do not address issues raised for the first time during oral
    argument.” See Porenta v. Porenta, 
    2017 UT 78
    , ¶ 33, 
    416 P.3d 487
    .
    Accordingly, we decline to consider Wilson’s request to
    reconsider our denial of his rule 23B motion.
    Moreover, even if we were inclined to revisit our denial of
    Wilson’s rule 23B motion, we would not reverse our decision
    because we remain convinced of its correctness. We denied
    Wilson’s rule 23B motion because the evidence he sought to add
    to the record—a transcript of his interview with police—was
    already contained in the record. Wilson has not demonstrated
    that this conclusion was erroneous. We also note that, in his rule
    23B motion, Wilson intimated that his Miranda rights may have
    been violated in that interview; our denial of his rule 23B motion
    was not a commentary on the merits of his potential Miranda
    claim. However, perhaps under the impression that our denial of
    his rule 23B motion was an indication that we did not think
    much of his Miranda claim, Wilson did not raise a Miranda
    argument in his appellate brief, even though he still could have.
    A denial of a rule 23B motion is not necessarily—and was not
    here—a rejection of the legal argument underlying the motion.
    Given that Wilson makes no Miranda argument in his brief, we
    may not consider that argument under the guise of
    reconsidering the denial of his rule 23B motion.
    20171011-CA                    11                
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    State v. Wilson
    withdraw his objection (and not make another) to the
    admission of the Audio Clips; second, by failing to deliver on a
    “promise” made in opening statement that he would
    demonstrate that the statements Wilson made in the Audio Clips
    were untrue; and third, by failing to request a separate jury
    instruction on attempted manslaughter as a lesser-included
    offense.
    ¶24 In order to demonstrate that his trial attorney
    rendered constitutionally ineffective assistance, Wilson must
    make a two-part showing: (1) that counsel’s “performance was
    deficient in that it fell below an objective standard of
    reasonableness,” and (2) that counsel’s deficient performance
    was “prejudicial.” See State v. Miller, 
    2012 UT App 172
    , ¶ 9, 
    281 P.3d 282
     (quotation simplified). Wilson must satisfy both parts of
    the test in order to show ineffective assistance. See Archuleta v.
    Galetka, 
    2011 UT 73
    , ¶ 41, 
    267 P.3d 232
    . Accordingly, we “need
    not determine whether counsel’s performance was deficient
    before examining the prejudice suffered by the defendant as a
    result of the alleged deficiencies.” Strickland v. Washington, 
    466 U.S. 668
    , 697 (1984).
    ¶25 Both parts of the test—deficient performance and
    prejudice—require substantial showings. An attorney’s
    performance is deficient if it falls “below an objective standard of
    reasonable professional judgment,” State v. Sessions, 
    2014 UT 44
    ,
    ¶ 17, 
    342 P.3d 738
    , and in order to make the necessary showing,
    Wilson must demonstrate that his trial counsel acted in manner
    that was “objectively unreasonable,” see Lee v. United States, 
    137 S. Ct. 1958
    , 1962 (2017); see also Sessions, 
    2014 UT 44
    , ¶¶ 21–29,
    (discussing whether counsel’s actions were “objectively
    unreasonable”). This is a difficult showing to make. Because
    “[t]here are countless ways to provide effective assistance in any
    given case,” and “[e]ven the best criminal defense attorneys
    would not defend a particular client in the same way,” “a court
    must indulge a strong presumption that counsel’s conduct falls
    within the wide range of reasonable professional assistance.”
    Strickland, 
    466 U.S. at 689
    .
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    State v. Wilson
    ¶26 In order to establish prejudice, Wilson must demonstrate
    that “there is a reasonable probability that but for counsel’s
    unprofessional errors, the result of the proceeding would have
    been different.” See Miller, 
    2012 UT App 172
    , ¶ 9 (quotation
    simplified). “A reasonable probability is a probability sufficient
    to undermine confidence in the outcome.” Strickland, 
    466 U.S. at 694
    . In weighing whether the result of the proceeding may have
    been different absent counsel’s deficient performance, a court
    must “consider the totality of the evidence before the judge or
    jury and then ask if the defendant has met the burden of
    showing that the decision reached would reasonably likely have
    been different absent the errors.” State v. Garcia, 
    2017 UT 53
    ,
    ¶ 28, 
    424 P.3d 171
     (quotation simplified). That is, to establish
    prejudice, Wilson must show that the overall outcome of the
    trial—the verdict itself—is reasonably likely to have been
    different if his trial counsel had not performed deficiently.
    A
    ¶27 Wilson’s first complaint about his trial counsel’s
    performance centers around counsel’s failure to lodge and
    maintain an objection to the admission of the Audio Clips.
    Specifically, Wilson asserts that his attorney should have moved
    for exclusion of the Audio Clips pursuant to rule 403 of the Utah
    Rules of Evidence. But on this point, Wilson cannot establish that
    his attorney rendered ineffective assistance.
    ¶28 To show that counsel’s failure to object constituted
    deficient performance, Wilson must establish that counsel’s
    conduct fell outside of the “wide range of reasonable
    professional assistance.” Strickland v. Washington, 
    466 U.S. 668
    ,
    689 (1984). It is well-settled that failure to raise an objection that
    would have almost certainly been overruled does not constitute
    ineffective assistance. State v. Kelley, 
    2000 UT 41
    , ¶ 26, 
    1 P.3d 546
    (“Failure to raise futile objections does not constitute ineffective
    assistance of counsel.”). Had counsel lodged a timely rule 403
    objection, the trial court would have been required to balance the
    probative value of the Audio Clips against their potential for
    20171011-CA                      13                
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    State v. Wilson
    unfair prejudice, with the evidence being excluded only “if its
    probative value is substantially outweighed by a danger” of
    “unfair prejudice.” See Utah R. Evid. 403. And we think that
    balance would have come out in favor of admission of at least a
    substantial portion of the Audio Clips.
    ¶29 Wilson’s chief argument is that his attorney should have
    objected to the admission of the Audio Clips in their entirety.
    But at least certain portions of the Audio Clips—for instance, the
    excerpts set forth above in our bullet-point list, supra ¶ 15—have
    significant probative value, because they shed light on Wilson’s
    state of mind at the time of the stabbing, and tend to
    demonstrate that Wilson acted out of neither self-defense nor a
    concern for Girlfriend’s well-being. Indeed, even Wilson admits
    that portions of the Audio Clips “were in direct conflict with
    [Wilson’s] primary defense theory that the stabbing occurred in
    the defense of others,” and that they “directly undermined
    [Wilson’s] primary defense theory at trial.” There is no question,
    then, that portions of the Audio Clips were highly probative.
    ¶30 Wilson argues, however, that, because these portions of
    the Audio Clips were so harmful to his case, he must have
    suffered prejudice as a result of their admission. To the extent
    that “prejudice” is defined simply as making a difference to the
    outcome, Wilson is undoubtedly correct, because all probative
    evidence, to some degree, tends to affect the outcome. That’s
    why it’s considered probative. But if that is the only manner in
    which a piece of evidence can be considered “prejudicial,” its
    prejudice is by definition not unfair. See State v. Maurer, 
    770 P.2d 981
    , 984 (Utah 1989) (stating that “all effective evidence is
    prejudicial in the sense of being damaging to the party against
    whom it is offered,” and that “prejudice which calls for exclusion
    is given a more specialized meaning” (quotations simplified));
    see also United States v. Adames, 
    56 F.3d 737
    , 742 (7th Cir. 1995)
    (stating that “all probative evidence is prejudicial to the party
    against whom it is introduced,” but noting that such prejudice is
    not necessarily “unfair”); State v. Fenley, 
    646 P.2d 441
    , 445 (Idaho
    Ct. App. 1982) (“Probative evidence is always prejudicial to
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    State v. Wilson
    someone. Unless the prejudice is unfair, it affords no basis to
    exclude the evidence.”). Thus, the core statements contained in
    the Audio Clips were not unfairly prejudicial merely because
    they helped the State’s case and hindered Wilson’s.
    ¶31 Wilson also points out that some of the statements
    contained in the Audio Clips—including some of the core
    probative statements—demonstrate that he used foul language
    and racial slurs and had a poor attitude toward women, and
    therefore show him in a bad light, and he argues that jurors,
    after hearing him speak in these terms, might have determined
    to convict him simply because they considered him a bad
    person. Unlike the type of “prejudice” referred to in the
    preceding paragraph, this sort of prejudice is precisely the kind
    of thing with which rule 403 is properly concerned. As our
    supreme court stated in Maurer, prejudice starts to become
    “unfair” when it creates a “tendency to suggest decision on an
    improper basis, commonly but not necessarily an emotional one,
    such as bias, sympathy, hatred, contempt, retribution, or
    horror.” See Maurer, 770 P.2d at 984 (quotation simplified). 5 But
    5. Wilson relies heavily on our supreme court’s holding in State
    v. Maurer, 
    770 P.2d 981
     (Utah 1989). In that case, the trial court
    allowed the State to introduce a letter the defendant had written
    to the murder victim’s father, in which the defendant taunted
    the father with statements like, “[y]ou might have prevented [the
    murder]. I hope you feel guilt over it,” and “[i]t was a great
    feeling to watch her die.” Id. at 982. On appeal, our supreme
    court concluded that admission of the letter was erroneous
    because the letter’s probative value was substantially
    outweighed by the danger of unfair prejudice. Id. at 984. But that
    case presents a situation quite different from the facts at hand:
    the letter at issue in Maurer was both less probative and more
    prejudicial than Wilson’s statements contained in the Audio
    Clips. Unlike the Audio Clips, the Maurer letter did not speak
    directly to the defendant’s state of mind at the time of the crime.
    And the Maurer letter was much more incendiary and
    (continued…)
    20171011-CA                    15                
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    State v. Wilson
    in this case, jurors had already heard other witnesses, including
    Friend, testify using similar language, and were thereby already
    aware of the ways in which some of the people involved in this
    case often conversed with one another. Moreover, as we have
    recently recognized, foul language has “lost much of [its] shock
    value in contemporary culture.” See State v. Johnson, 
    2016 UT App 223
    , ¶ 38, 
    387 P.3d 1048
     (quotation simplified). We simply
    do not think that the sort of language Wilson used in the Audio
    Clips would have caused the jury to convict him for improper
    emotional reasons. Stated another way, the probative value of
    the most probative part of the Audio Clips, see supra ¶ 15, was
    not substantially outweighed by the danger of unfair prejudice,
    and any objection that Wilson’s attorney might have lodged to
    exclude the Audio Clips in their entirety would have certainly
    been overruled. At minimum, the court would have admitted
    the relevant and most probative portions of the Audio Clips.
    Accordingly, counsel did not perform deficiently by failing to
    lodge a futile blanket objection. See Kelley, 
    2000 UT 41
    , ¶ 26.
    ¶32 And a more limited objection, even had it been granted,
    would not have made a difference to the outcome of the trial.
    Instead of lodging a blanket objection to the admission of any
    portion of the jailhouse phone calls, Wilson’s attorney could
    have asked the court to limit admission to only a few statements,
    the ones with the highest probative value, including the ones
    quoted above. While such a limited objection might well have
    been sustained, it is not reasonably likely that elimination of
    (…continued)
    potentially prejudicial than the Audio Clips, and much more
    likely to have led the jury to convict for improper reasons. See
    State v. Alzaga, 
    2015 UT App 133
    , ¶ 51, 
    352 P.3d 107
    (distinguishing Maurer for similar reasons, and stating that “the
    core concern with the letter in Maurer was not so much the
    letter’s language but what it revealed about the defendant’s
    character: he wrote it to inflict additional emotional pain upon
    the victim’s father, literally to add insult to injury”).
    20171011-CA                   16                
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    State v. Wilson
    only the less-probative statements would have made a difference
    to the outcome of the case, and we therefore conclude that
    Wilson cannot have been prejudiced by his attorney’s failure to
    lodge such an objection. The State’s evidence against Wilson was
    strong. Wilson did not deny stabbing Friend, and both Friend
    and Girlfriend testified that Friend did not threaten Girlfriend.
    Even Wilson himself, when interviewed by the police, made no
    statements indicating that he stabbed Friend to protect
    Girlfriend. And under our present hypothetical, the jury would
    also have heard those portions of the Audio Clips in which
    Wilson admits that his story is not credible, that he was prepared
    to “kill” Friend if he so much as “touch[ed]” him, and that he
    used “too much force” on Friend, who merely pushed him.
    In sum, we do not view it as reasonably likely that a paring-
    down of the Audio Clips would have resulted in a different
    outcome.
    ¶33 Accordingly, Wilson has not carried his burden of
    demonstrating that his attorney rendered constitutionally
    ineffective assistance by failing to raise a rule 403 objection to all
    or part of the Audio Clips. Any such objection aimed at the
    Audio Clips in their entirety would have been denied, and a
    more limited objection, even if granted, would not have changed
    the outcome.
    B
    ¶34 Next, Wilson argues that his attorney provided ineffective
    assistance when he “essentially promised” the jury, during
    opening statements, that he would demonstrate that the
    statements made in the Audio Clips were “absolutely not true,”
    and then failed to deliver on that promise. This claim is infirm,
    because Wilson misinterprets trial counsel’s statements, and fails
    to demonstrate that counsel performed deficiently.
    ¶35 When the trial began, Wilson’s attorney was operating on
    the assumption that the Audio Clips would be introduced to the
    jury during the State’s case-in-chief, and he decided to address
    20171011-CA                      17                
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    State v. Wilson
    the issue head-on during his opening statement. In that
    statement, counsel expressed his hope that the jury would come
    to understand the Audio Clips as a reflection of jailhouse
    bravado, which he believed Wilson had adopted as a way to
    “puff himself up.” In addition, counsel described Wilson as
    saying things in the Audio Clips “that are absolutely not true in
    order to make himself seem tougher and better and bigger than
    what he really is.” On appeal, Wilson construes these statements
    as a “promise” on the part of counsel to introduce evidence
    debunking Wilson’s jailhouse statements, and concludes that
    counsel performed deficiently by failing to do so.
    ¶36 We disagree. As an initial matter, Wilson overreads
    counsel’s opening statement. By attempting to explain away the
    Audio Clips, counsel was not making any sort of binding
    “promise” to the jury that he would present any particular
    evidence. Rather, we think counsel’s statement is best
    understood as an attempt to convey to the jury his belief that the
    man they were going to hear on the Audio Clips was not a fair or
    complete depiction of who Wilson really was, and an attempt to
    explain away, as best he could, some relatively damning
    statements made by Wilson himself.
    ¶37 Moreover, and more substantively, we think counsel’s
    actions during opening statement fall squarely within the
    bounds of “sound trial strategy,” as Strickland allows, and
    Wilson has not carried his burden of demonstrating that
    counsel’s actions were unreasonable. See Strickland v. Washington,
    
    466 U.S. 668
    , 689 (1984) (quotation simplified). A reasonable
    attorney could—and here, did—anticipate that the Audio Clips
    would reflect poorly on Wilson, and therefore could choose to
    characterize them as mere puffery rather than as realistic
    reflections of the situation.
    ¶38 Thus, Wilson has failed to demonstrate that his attorney
    performed deficiently in the manner in which he discussed the
    Audio Clips in his opening statement, and Wilson’s second claim
    for ineffective assistance of counsel fails on this basis.
    20171011-CA                    18               
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    State v. Wilson
    C
    ¶39 Finally, Wilson argues that trial counsel rendered
    ineffective assistance by failing to request a separate and
    additional instruction on attempted manslaughter as a lesser-
    included offense. Under the circumstances, we disagree.
    ¶40 In this case, counsel decided to center Wilson’s defense
    strategy around a defense-of-others theory: that Wilson had
    stabbed Friend in an effort to protect Girlfriend and their unborn
    child from Friend’s perceived aggression, and that Wilson never
    intended to murder Friend. Counsel had other options—he
    could have, for instance, also advanced a jealous-lover theory in
    which Wilson stabbed Friend because he thought there was
    something romantic going on between Friend and Girlfriend, or
    he could have focused more on a self-defense theory given that
    Friend pushed Wilson in the moments before the stabbing.
    ¶41 The choice of which primary defense theory to advance is
    a strategic decision that will not often be second-guessed on
    appeal. See State v. Pascual, 
    804 P.2d 553
    , 556 (Utah Ct. App.
    1991) (stating that “any election between inconsistent defenses
    was a legitimate exercise of trial strategy rather than ineffective
    assistance of counsel”); State v. Wight, 
    765 P.2d 12
    , 15 (Utah Ct.
    App. 1988) (stating that we “will not second-guess a trial
    attorney’s legitimate use of judgment as to trial tactics or
    strategy”). In this case, Wilson’s attorney had to choose which
    defenses (among several less-than-optimal options) to advance,
    and he elected to advance primarily a defense-of-others theory.
    While the evidence in support of this theory was by no means
    overwhelming, it was arguably better supported than a jealous-
    lover theory or a self-defense theory. Indeed, the evidence
    showed that Friend walked quickly toward the car in which
    Girlfriend was waiting, and Girlfriend testified that she was
    “freaking out” because she did not know what Friend was going
    to do. The evidence supporting a “jealous lover” defense was
    nothing more than speculation, and—as Wilson himself
    recognized in the Audio Clips—the “self-defense” theory was
    20171011-CA                    19                
    2020 UT App 30
    State v. Wilson
    weak because Friend’s only act of physical aggression was a
    light push. On the facts of this case, we cannot conclude that
    counsel’s choice of defense was unreasonable.
    ¶42 And given counsel’s choice of defenses, his actions with
    regard to jury instructions and the verdict form were entirely
    appropriate. His chosen theory—defense of others—allowed him
    to request and obtain jury instructions on both perfect and
    imperfect self-defense, and allowed him to obtain an option on
    the verdict form for both attempted manslaughter as well as
    aggravated assault. 6 Wilson has not demonstrated that these
    choices were unreasonable, and therefore has fallen short of
    showing that his trial counsel performed deficiently. His third
    claim for ineffective assistance of counsel fails on this basis.
    CONCLUSION
    ¶43 Wilson’s trial counsel did not provide ineffective
    assistance in any of the three respects Wilson argues on appeal.
    Accordingly, we affirm.
    6. On appeal, Wilson is critical of trial counsel for not affording
    the jury a “third option—the choice of conviction of a lesser
    offense rather than conviction of the greater or acquittal.” But
    Wilson overlooks that the verdict form that counsel obtained
    actually had four options: guilty, not guilty, guilty of aggravated
    assault, and guilty of attempted manslaughter.
    20171011-CA                    20                
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