State v. Salazar , 2022 UT App 38 ( 2022 )

2022 UT App 38THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
KEVIN SALAZAR,
Appellant.
Opinion
No. 20200561-CA
Filed March 31, 2022
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 151910846
Troy L. Booher, Beth E. Kennedy, and Pal A.
Lengyel-Leahu, Attorneys for Appellant
Sean D. Reyes and Marian Decker,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
ORME, Judge:
¶1 Kevin Salazar challenges his conviction for aggravated
sexual assault. Salazar primarily contends that his trial counsel
provided ineffective assistance, warranting a new trial. We agree
and reverse.
State v. Salazar
BACKGROUND 1
The Assault
¶2 One evening in October 2012, Salazar went to a hookah
lounge he often frequented. Also at the lounge that night were
the owner of the lounge (Owner), Shannon, 2 Shannon’s friend
(Friend), and Shannon’s coworker (Coworker). Shannon
considered both Salazar and Owner to be her friends.
¶3 After smoking in the lounge for a time, Salazar, who
looked to Shannon like he had been crying, asked to speak to
Shannon in a storage closet in the hallway that connected the
lounge to the front of the shop. After they entered the closet,
Salazar closed the door and began kissing Shannon’s neck.
Shannon told him to stop, stating that she “ha[d] a boyfriend.”
This did not deter Salazar, and soon Owner knocked on the
closet door and entered the closet. Shannon thought Owner was
going to help her, but instead Owner “bent [her] over,” “pulled
[her] pants down,” and began having “vaginal sex with [her].”
While this was occurring, Salazar removed his pants and
inserted his penis into Shannon’s mouth. Shannon did not
“agree[] to what was going on.”
¶4 Shannon next recalled “being on the floor and [Salazar]
was underneath [her] and [Owner] was behind her.” At this
point “[Salazar] was having sex vaginally” with Shannon while
Owner was penetrating her anally. The men then high-fived
each other, and Salazar said, “Double penetration.” While this
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
2. A pseudonym.
20200561-CA 2 2022 UT App 38State v. Salazar
was occurring, Shannon “heard [Friend] on the other side of the
door and . . . started crying.”
¶5 Friend heard Shannon say, “Help me,” and Friend began
banging on the door and trying to open it, but she was
unsuccessful because it was locked. At this point, as Shannon
continued crying, the men stopped. Shannon then pulled her
pants back on and ran out of the closet. Friend noticed that
Shannon “was really distraught,” crying, and “could barely
breathe when she was talking.” Shannon and Friend then left the
lounge. While leaving, Shannon ran into Coworker, who
described her as “barely able to form sentences because she was
crying so hard.” She was “hysterical, sobbing, telling us, ‘I have
to go. I have to go. I have to get out of here.’” She then told
Coworker, “We have to go. I was raped. These two guys took me
into a closet and raped me.”
¶6 While in the car heading home, Shannon told Friend what
happened in the closet. When Shannon got home, she called an
old friend (Friend 2) and, while crying, told him that Salazar and
Owner “had raped [her].” Shannon did not call the police
“[b]ecause [her] dad was dying of cancer and [she] didn’t want
to stress him out.” But Friend 2 did call the police, and a
detective then called Shannon. He noticed that her “speech
pattern was broken . . . [l]ike, she had been sad or crying or
upset.” The detective then met with Shannon at her home. While
telling the detective about the assault, “she was sad,” she
“wouldn’t look [the detective] in the eye,” and her body was
“slumped.” Shannon also told the detective that at some point
before the assault, a man had given her a soda and that she felt
“weird” after drinking it. The detective convinced Shannon to go
to the hospital for a sexual assault examination.
¶7 At the hospital, the nurse conducting the exam discovered
injuries to Shannon’s genitals and anus and later testified that
Shannon’s rectal injuries “stuck out” to her because they were
the “worst” she had “seen on a patient” and so she was able to
20200561-CA 3 2022 UT App 38State v. Salazar
remember them years later when testifying. But the nurse also
indicated that although severe, the injuries could be consistent
with consensual sex. Shannon also told the nurse about the soda.
¶8 Because Shannon did not want to further stress her father,
she did not “want to go forward with the prosecution of the
case.” The case sat idle until 2015—a year after Shannon’s father
had passed away—when a member of the production team of a
television show that investigated unsolved sex crimes contacted
Shannon. He told Shannon that “they pulled [her] case and
wanted to go through the story of what happened and wanted to
. . . help [her] get through with getting charges pressed.”
Shannon agreed to participate in the show and personally
appeared on the program. At some point during 2015, 3 police
interviewed Shannon, and after her interview, police
interviewed Salazar in July 2015.
¶9 During his interview, Salazar gave his version of events in
which Shannon “pulled my arm and we went into the [closet]”
where she “pull[ed] down my pants” and “suck[ed] my penis.”
Shannon then opened the door when Owner knocked on it and
pulled him in and “started jumping on him, making out [and]
pulling down his pants.” At this point, she began sucking
Salazar’s penis again while Owner penetrated her from behind.
According to Salazar, Shannon then said she wanted him so they
“switched.” Shannon then said she “wanted” Owner and “they
switched again,” this time with Shannon on top of Owner while
again giving Salazar oral sex. Salazar stated that at this point,
Shannon “started to cry.” He asked if she was “okay,” but “she
was just crying and crying and crying” and then left the closet.
3. It is not clear from the record if Shannon contacted the police
or if the police contacted Shannon about reopening the case in
response to the television show. It is also unclear whether
Shannon’s and Salazar’s police interviews were conducted
before or after the show aired on television.
20200561-CA 4 2022 UT App 38State v. Salazar
¶10 Salazar recounted that Shannon called him a few days
later and apologized for involving the police. She said her
friends threw her “under the bus” but that she and Salazar
“were cool again,” and they continued to be friends and hung
out multiple times. One of the interviewing officers stated that
“it sounds like she was pretty excited, like she wanted to have
sex,” and Salazar responded, “That’s what it seemed like, but
sitting here I don’t think so.” An officer later asked, “Any chance
you could have misinterpreted what [Shannon] may have
wanted?” Salazar answered, “I doubt it. Due to the fact that she
was the one pulling [our] pants down.” The officer then asked
whether he could have misinterpreted her pulling Owner into
the closet, suggesting she may have done that “to help her get
out of the situation she was in with you.” Salazar responded, “I
don’t know.” The officers again asked what happened, and
Salazar stated that “as far as I can remember,” Owner held “her
down for a bit” before she left. The officers stated that, from their
perspective, it seemed that Shannon did not want to be in the
closet. They asked Salazar whether he knew she did not want to
be in there, to which Salazar responded, “At the time probably
not, but probably at the time, probably.” The officers did not ask
him to clarify this confusing response. Salazar also denied
high-fiving Owner or saying anything to Owner, stating that
they instead were “just looking at each other.” The officers
continued to press Salazar, stating, “You know for a fact she
didn’t want to be there; right?” Salazar responded, “Honestly, at
the time probably not.” 4 The officers then asked whether
Shannon running away “look[ed] like a girl that just want[ed] to
have sex with the guys?” Salazar responded, “Now that it’s
4. Standing alone, it is unclear whether Salazar meant that, at the
time, Shannon probably did not want to be there or whether he
meant that, at the time, he did not realize that she did not want
to be there. His subsequent answer suggests he likely meant the
latter.
20200561-CA 5 2022 UT App 38State v. Salazar
more clear, probably not” but at the time it seemed like “she
wanted to have sex.”
Preliminary Hearing and Trial
¶11 Nearly seven years after the incident, and four years after
the interviews, the State charged Salazar and Owner with
aggravated sexual assault in August 2019. 5 They were tried
together. Salazar retained counsel (Trial Counsel) to represent
him. Owner had his own counsel.
¶12 At the preliminary hearing, Shannon testified about the
assault and her later contact with Salazar. She stated that she
received “a few messages” from Salazar in the days immediately
after the incident, but she “block[ed] him after that and . . .
reported it to the police.” She also testified that she did not
“hang out with him after [the assault]” and “never had any
direct contact with Mr. Salazar.” She further testified that,
following the assault, she never texted, called, or left Salazar any
voicemails. Shannon also testified that she remembered being
given a soda at some point before the assault by an unidentified
male but stated that she did not remember whether she told the
detective she “felt funny or strange after drinking [it].” She then
stated that she did not “feel that [the soda] affected [her] in any
way.” Salazar and Owner were bound over on the charged
counts, and the case then proceeded to trial.
¶13 At trial, the State called Shannon, Friend, Friend 2,
Coworker, the nurse, and the detective to testify. Except for
Shannon, their testimony was consistent with the facts laid out
previously.
5. It is unclear from the record why it took nearly four years
from the time police interviewed Shannon and Salazar for
charges to be filed.
20200561-CA 6 2022 UT App 38State v. Salazar
¶14 During her testimony, Shannon had significant trouble
remembering specifics, even stating at one point that she did not
“remember where it happened.” She could not remember
whether she or the defendants said anything after Owner
entered the closet. She could not remember how they ended up
on the floor. Overall, in response to questions regarding specifics
of the incident, she stated more than 40 times that she could not
remember. To help refresh her recollection, the prosecutor gave
her copies of her police interview, the nurse’s sexual assault
exam, and the preliminary hearing transcript. After reading
these documents, many of which included highlights or sticky
notes, she stated that her memory was refreshed, but the trial
court had to caution her at one point to put the documents down
when thereafter responding to questions. Throughout her
testimony, she had to rely on those documents to remember
what occurred, and she admitted that she had reviewed the
documents before trial and would not have been “able to relate
the details that are in [the documents] without having read
[them] again.”
¶15 On cross-examination, the following exchange took place:
[Trial Counsel]: [T]he things that you’ve said are
that you couldn’t remember anything after
[Salazar] was in the closet with you up until the
very end; is that right?
[Shannon]: Correct.
[Trial Counsel]: So that’s the truth; right? Those are
the things that you can’t remember; right?
[Shannon]: Correct.
[Trial Counsel]: Okay. The things you can
remember are simply this: That you were in a
closet with [Salazar] and that sometime later you
20200561-CA 7 2022 UT App 38State v. Salazar
can recall being on the floor with him and someone
else; right?
[Shannon]: Him and [Owner], yes.
[Trial Counsel]: And you have no recollection, even
after you read that thing, which was before today,
you had no recollection of any of the things that
were in that document, right?
[Shannon]: Can you rephrase the question?
[Trial Counsel]: Sure. You looked at the interview
that was typed up on July 31 . . . and you read it at
your leisure, you saw all the things that you said
back then; right?
[Shannon]: Right.
[Trial Counsel]: But when you came in here today
and you took an oath to testify in front of these
people, you already could not remember any of
that until you were shown it again right in front of
the jury, right?
[Shannon]: Correct.
¶16 Additionally, Shannon stated that she did not remember
telling the detective or the nurse that she felt strange after
drinking the soda. But when presented with the detective’s and
the nurse’s reports, Shannon did not “contest” that she told them
she felt strange after drinking the soda. And when presented
with a transcript of the preliminary hearing, she agreed that she
testified that she “felt fine” after drinking the soda.
¶17 Despite her troubles remembering the details of the
incident, Shannon did testify that she “always remembered the
20200561-CA 8 2022 UT App 38State v. Salazar
end of what happened to [her] in the storage room,” with Friend
at the door while Owner “had his penis in my rectum and
[Salazar] was vaginally.”
¶18 Regarding her interactions with Salazar after the assault,
Shannon stated that she did not recall having contact or
socializing with Salazar after the incident but that she “was told
that I reported something before to the cops, but I don’t
remember.” Shannon also stated that it was “correct” that “at the
preliminary hearing under oath [she] said that [she] would never
have had contact with [Salazar] after the fact” and that if she
inadvertently ran into him, “it probably wouldn’t have been a
big deal” because she was “just trying to put it all behind [her].”
¶19 At the close of the State’s case, Trial Counsel moved for a
directed verdict on the ground that because Shannon had no
independent memory of the events, there was insufficient
evidence from which the jury could conclude beyond a
reasonable doubt that a crime had been committed. The court
denied the motion.
¶20 On the advice of Trial Counsel, Salazar did not testify in
his defense. Trial Counsel explained that he advised Salazar not
to testify because he believed it to be “in his best interest” due to
“some uncounseled statements he gave during an interview to
the police department.” Owner also did not testify but called his
brother and a friend, who both testified that Shannon did not
appear to be crying or upset when she left the lounge on the
evening in question. The jury convicted both defendants of
aggravated sexual assault.
Post-trial Motion
¶21 Through new counsel, Salazar moved for a new trial on
four grounds relevant to his appeal. First, he asserted that Trial
Counsel was ineffective for advising Salazar not to testify
because he was the only one who could have contradicted
20200561-CA 9 2022 UT App 38State v. Salazar
Shannon’s testimony. Second, he contended that Trial Counsel
was ineffective for failing to call two witnesses, Junior and Tim,
who Salazar informed Trial Counsel would have testified that
Shannon “acted comfortable—even flirtatious—around [him],
only a few months after [Shannon] said [Salazar] raped her.”
Specifically, Junior and Tim would have testified about an
evening where Shannon came over to Junior’s house with
Salazar. That evening, they smoked hookah and played video
games, and at the end of the night, Shannon fell asleep on
Junior’s king-size bed with both Salazar and Junior. Junior also
would have testified that he witnessed Salazar socialize with
Shannon on two other occasions. Salazar explained that this
testimony would have “undermined [Shannon’s] account of
what happened inside the closet” because Junior and Tim “saw
how [Shannon] later acted around [Salazar], and a reasonable
jury could have concluded that her actions were inconsistent
with someone who had been raped by [Salazar].” Third, he
argued that, although many more text messages between him
and Shannon were lost when he got a new phone, there were
still messages between the two on an app called Voxer. 6 These
messages were readily available on an iPod he gave Trial
Counsel, and the messages were at odds with Shannon’s denials
of subsequent contact with Salazar. New counsel argued that
Trial Counsel was ineffective for not obtaining and using those
messages to “undermine” Shannon’s testimony. Finally, he
asserted that Shannon’s testimony was inadmissible because, at
the end of her testimony, she admitted she had no independent
memory of the assault and had “testifie[d] from documents
beyond what she actually remember[ed].”
6. Voxer is an app that allows users to exchange “voice, text,
photo, and video messages.” About Us, Voxer, voxer.com/about
[https://perma.cc/7ALW-BPFN]. Its primary service is to
“deliver[] voice live—so it can be listened to immediately” while
also “simultaneously record[ing] the message—so it can be
listened to later.” Id.20200561-CA 10 2022 UT App 38State v. Salazar
¶22 In support of his motion, Salazar submitted a number of
affidavits, including one from his sister in which she averred
that she had logged into Salazar’s Voxer account and was able to
access numerous voice messages, along with a single text
message, 7 which Shannon sent to Salazar in the months
following the incident. As part of her affidavit, Salazar’s sister
provided screen shots from the app showing that Shannon sent
twenty voice messages 8 and one text message to Salazar in
January 2013. 9 For his part, Salazar sent Shannon sixteen
messages. Apparently not all the voice messages were accessible
when Salazar’s sister tried to open them, but she was able to
provide a partial transcription as follows: 10
7. This text message was in addition to an initial message that
was generated by the Voxer app, letting Salazar know that
Shannon was now using Voxer.
8. Salazar’s sister’s transcription of the messages indicates that
Shannon sent nineteen voice messages. But after reviewing the
screen shots of the messages, it is clear that Shannon sent twenty
voice messages, one of which was omitted from the
transcription.
9. All that can be seen from these screen shots is a message
exchange between Shannon and Salazar, with indications when
the voice messages were sent along with the length of each
message. The exchange begins with a voice message from
Shannon and includes a text message in which Shannon
complains of neck pain in response to an audio message from
Salazar in which he inquired about how she was fairing
following an auto accident. Shannon’s twenty audio messages
ranged in length from one second to fifty-nine seconds.
10. Aside from altering names with bracketed substitutes, we
have reproduced the transcription exactly as it is found in the
(continued…)
20200561-CA 11 2022 UT App 38State v. Salazar
1/23/13 (0.9) [Shannon]: [Sounds only – no
speaking]
1/24/13 (0:01) [Salazar]: Message uploaded partially
1/24/13 (0:02) [Shannon]: “I’ve been good, how are
you? Come to Babylon tonight.”
1/24/13 (0:06) [Salazar]: Message uploaded partially
1/24/13 (0:08) [Shannon]: “Well we’re going to the
warehouse party first and that starts at nine, and
we’ll only go for like an hour so I’ll probably be at
the Babylon around ten, ten-thirty.”
1/24/13 (0:12) [Shannon]: “Yeah you should for sure
try to come and I’m good, I’m just donating plasma
right now but umm . . . my dad, we just found out
he has brain cancer too so yeah, it’s been kind of
rough.”
1/24/13 (0:16) [Salazar]: Message uploaded partially
1/24/13 (0:25) [Shannon]: “Yeah pretty much, I’m
donating bone marrow then maybe in the next like
two weeks or so—you get like a thousand bucks
for that. But um, Babylon, [John] is going, I think
you know him. [John] or whatever, he’s my boy
and then me, um, [Shelly], and [Brent] and I don’t
know there’s lots of people.”
(…continued)
record, and all the other alterations are from Salazar’s sister’s
original transcription.
20200561-CA 12 2022 UT App 38State v. Salazar
1/24/13 (0:04) [Shannon]: Message uploaded partially
1/24/13 (0:05) [Salazar]: Message uploaded partially
1/24/13 (0:11) [Shannon]: Message uploaded partially
1/24/13 (0:10) [Salazar]: Message uploaded partially
1/24/13 (0:10) [Salazar]: “Yeah you do. Uh—yeah so
how’s school? How’s uh—what, what are you
gonna do? Like, are you gonna like, go back to
school? Or what? What are your plans?”
1/24/13 (0:02) [Shannon]: “I’m actually joining the
Airforce.”
1/24/13 (0:10) [Salazar]: Message uploaded partially
1/24/13 (0:29) [Shannon]: Message uploaded partially
1/24/13 (0:13) [Salazar]: “Man that sounds crazy.
Um—well that’s good, you’re gonna be getting a
lot of dick so I mean that good for you cause I
know you like to fuck a lot but, that's good. Uh—
but about the car accident; that sucks to be you
guys but are you guys alright?”
1/24/13 [Shannon] (typed): “No . . . Ugh my neck
fuckin kills”
1/24/13 (0:05) [Salazar]: Message uploaded partially
1/24/13 (0:03) [Shannon]: Message uploaded partially
1/24/13 (0:02) [Salazar]: Message uploaded partially
20200561-CA 13 2022 UT App 38State v. Salazar
1/26/13 (0:03) [Shannon]: Message uploaded partially
1/26/13 (0:16) [Salazar]: Message uploaded partially
1/28/13 (0:01) [Shannon]: Message uploaded partially
1/28/13 (0:01) [Salazar]: Message uploaded partially
1/28/13 (0.6) [Shannon]: “Why not?”
1/29/13 (0:01) [Salazar]: “What are you doing?”
1/29/13 (0:02) [Shannon]: Message uploaded partially
1/29/13 (0:01) [Shannon]: Message uploaded partially
1/29/13 (0:59) [Shannon]: [background noise—
speaking with someone else]
1/29/13 (0:01) [Salazar]: Message uploaded partially
1/29/13 (0:10) [Salazar]: Message uploaded partially
1/29/13 (0:01) [Shannon]: Message uploaded partially
1/29/13 (0:15) [Salazar]: Message uploaded partially
1/29/13 (0:02) [Shannon]: “I almost got in a fistfight
in Babylon today.”
1/30/13 (0:03) [Salazar]: “[Shannon] what are you
doing? We should chill right now. You down?”
1/31/13 (0.6) [Shannon]: Message uploaded partially
20200561-CA 14 2022 UT App 38State v. Salazar
¶23 Salazar averred that he told Trial Counsel that he “still
had access to some of the messages [Shannon] and I sent each
other in early 2013” located “on an app called Voxer.” He stated
that he gave Trial Counsel “an iPod with the Voxer app installed
on it,” along with the login information and “asked him to
review the messages to and from [Shannon] and to use them at
trial.”
¶24 In response to Salazar’s motion, the State contended that
Trial Counsel’s advice to Salazar not to testify was objectively
reasonable due to Salazar’s inculpatory statements made during
his police interview. The State also argued that neither Junior
nor Tim were present at the lounge the night of the assault, and
therefore their testimony regarding the later purported
“interactions” between Salazar and Shannon would “not address
the issue of consent.” The State explained that Salazar wanted
the
court to buy into the idea that a “victim” should
respond to their rapist in some standardized
manner, but research shows this simply is not true.
How an individual reacts or interacts with others is
complex. In fact, there was discussion between the
parties about the potential of the State calling a
“Rape Myth” expert which did not occur based
upon many factors. Ultimately, [Trial Counsel]
made the decision not to pursue this theory of the
case and no expert was “noticed.”
Given the prospect that an expert would have been called to
undermine the significance of the post-rape interaction, the State
argued it was “a perfectly reasonable trial strategy not to attack a
‘Victim’ for their post assaultive behavior.”
¶25 Regarding the Voxer messages, the State argued that
“there is nothing in the record to indicate that” Trial Counsel
“had it or even knew about it” or that he “was aware of these
20200561-CA 15 2022 UT App 38State v. Salazar
conversations.” The prosecutor explained that before trial, Trial
Counsel had turned over Salazar’s “phone” 11 and passwords,
and “no messages were located” by investigators. The State
further asserted that even if Trial Counsel did have the
messages, there was “no way to authenticate [Shannon’s] voice
to show that these messages even came from her.” At oral
argument on the matter, the prosecutor argued that “this is
newly discoverable evidence.” The prosecutor claimed that Trial
Counsel came to him and “said there’s messages on this phone,”
and the prosecutor responded that “instead of you paying for it,
let the State do it. . . . And he gave me the phone, so we . . . could
save, quite frankly, Mr. Salazar some money. And we did the
download on the phone” but did not find the messages. The
prosecutor explained that if Trial Counsel did have the
messages, a reasonable explanation for Trial Counsel not using
the messages was that “he knew that [the prosecutor] would
have called the counter-intuitive expert. He knew that. We’d had
. . . conversations on that.”
¶26 Finally, the State argued that Shannon’s testimony was
admissible because her “memory was properly refreshed under
Utah Rule of Evidence 612 which permits a witness’s recollection
to be refreshed by a writing.” The State contended that “[m]ost
of [Shannon’s] testimony was from memory without necessity
for refreshment” and “[t]he testimony that was made after
refreshing her recollection was properly admitted.”
¶27 The court denied Salazar’s motion. It ruled that Trial
Counsel’s advice to Salazar not to testify was reasonable because
during Salazar’s interview with police, he “agreed with
detectives on three different occasions that [Shannon] probably
did not want to have sex.” It explained that “[t]hese are highly
11. There is no indication in the record that both a phone and an
iPod are in play. The prosecutor apparently misspoke in
referring to a “phone.”
20200561-CA 16 2022 UT App 38State v. Salazar
impugning statements, and it was reasonable for trial counsel to
prevent the jury from hearing them.”
¶28 The court then ruled that Trial Counsel did not perform
deficiently by not calling Junior and Tim to testify. It determined
that “it was reasonable for defense counsel to weigh the danger
that the jury may consider the testimonies of [Junior and Tim as]
‘victim-blaming’” that would have hurt Salazar’s case, especially
“in the milieu of contemporary American Politics, where the
‘#MeToo’ and other movements have brought awareness and
initiated discussion of counterintuitive post-assaultive
behavior.”
¶29 Regarding the Voxer messages, the court noted that there
was disagreement on whether this was newly discovered
evidence or whether it was evidence that might support an
ineffective assistance of counsel claim. The court noted that it
was “doubtful this is newly-discovered evidence as the Voxer
messages could have been discovered and produced at trial in
the exercise of reasonable diligence.” And at oral argument on
the matter, the court stated, “There’s evidence before me that
[Trial Counsel] had them and elected not to use them.” But it
determined that regardless of whether it was newly discovered
evidence or constituted an ineffective assistance of counsel
claim, Salazar’s claim was unavailing because he could not show
prejudice. The court noted that the Voxer messages showed that
Shannon and Salazar had contact after the assault and that
Shannon invited Salazar to Babylon, a hookah lounge, and
talked about Shannon’s future plans and her father’s illness. The
court then ruled that although Shannon testified at the
preliminary hearing that she had no contact with Salazar after
the assault,
she also testified at the preliminary hearing and at
trial that she had forgotten she exchanged
messages with [Salazar] and reported the messages
to the police. . . . Thus, presenting the Voxer
20200561-CA 17 2022 UT App 38State v. Salazar
messages to the jury would have confirmed
[Shannon’s] testimony as much as it would have
impeached it.[12]
Furthermore, even if the jury found [that
Shannon] lied during the preliminary hearing
based on the Voxer messages, the jury could still
[have] found her credible about the sexual assault.
[Shannon’s] testimony was corroborated by
[Friend’s] testimony and was consistent with
statements she made to [the nurse] and
[Coworker].
¶30 Finally, the court rejected Salazar’s claim that Shannon’s
testimony was inadmissible in its entirety because it was
“convinced” by Shannon’s “demeanor and her ability to
acknowledge when her testimony was not refreshed that her
testimony was reliable enough to be admissible.” The court then
denied Salazar’s new trial motion. Salazar appeals this denial.
ISSUES AND STANDARDS OF REVIEW
¶31 Salazar claims that the trial court erred in denying his
motion for a new trial on the ground that Trial Counsel provided
constitutionally ineffective assistance for failing to investigate or
12. This characterization overlooks that Shannon testified that
she and Salazar exchanged texts only within a few days of the
incident, whereupon she blocked him and so advised the police.
Thus, evidence that she had exchanged voice and text messages
with Salazar some three months after the incident would not
have confirmed her testimony in this regard. If credited by the
jury, it would have refuted her testimony.
20200561-CA 18 2022 UT App 38State v. Salazar
use the Voxer messages. 13 Generally, we review a trial court’s
ruling on a motion for a new trial for an abuse of discretion. State
v. J.A.L., 2011 UT 27, ¶ 20, 262 P.3d 1. “But when a defendant
moves for a new trial on ineffective assistance of counsel
grounds, we apply the standard of review set forth in Strickland
v. Washington, 466 U.S. 668 (1984).” State v. Torres-Orellana, 2021
UT App 74, ¶ 26, 493 P.3d 711, cert. granted, 502 P.3d 268 (Utah
2021). That standard presents a mixed question of fact and law.
Strickland, 466 U.S. at 698. We thus “review a trial court’s
13. Salazar also contends that Trial Counsel was ineffective in
two additional respects. First, he asserts that Trial Counsel was
ineffective for advising him not to testify. Given our reversal, it
is unnecessary to definitively weigh in on this. But we do view
this decision as “a quintessential question of judgment and
strategy.” See State v. Fleming, 2019 UT App 181, ¶ 12, 454 P.3d
862. And here, even though Salazar did at times state during his
interview that Shannon initiated the sexual contact, he also
offered statements that could have been damaging to his case.
For example, when asked if it seemed like Shannon wanted to
have sex at the time, Salazar responded, “That’s what it seemed
like, but sitting here I don’t think so.” Considering that the
interview contained both potentially beneficial and potentially
harmful statements, it is doubtful we would conclude that Trial
Counsel acted unreasonably in advising Salazar not to testify.
See State v. Franco, 2012 UT App 200, ¶ 10, 283 P.3d 1004 (“A
decision by counsel that reasonably weighs the risks and benefits
of available strategic approaches before choosing one as
preferable to others cannot support a claim that counsel was
deficient in either strategy or performance, even if the approach
did not lead to the desired result.”).
Second, Salazar asserts that Trial Counsel was ineffective for
not calling Junior and Tim to testify in an effort to undermine
Shannon’s credibility. But due to our reversal on Trial Counsel’s
failure to introduce the Voxer messages to undermine Shannon’s
credibility, we have no need to address this claim either.
20200561-CA 19 2022 UT App 38State v. Salazar
application of the law to the facts for correctness and, if
applicable, we review the court’s findings of fact for clear error.”
Torres-Orellana, 2021 UT App 74, ¶ 26. 14
¶32 Salazar also argues that the trial court “erred when it
allowed the jury to consider Shannon’s testimony even though
she admitted that she had no independent memory of the
events.” It is not entirely clear, however, whether Salazar is
appealing from the trial court’s denial of his directed verdict
motion or from the court’s denial of his motion for a new trial,
both of which raised the same claim. And the directed verdict
motion implicates a different remedy. See State v. Emmett, 839
P.2d 781, 784 (Utah 1992) (“When a motion for a directed verdict
is made at the close of the State’s case, the trial court should dismiss
the charge if the State did not establish a prima facie case against
the defendant by producing believable evidence of all the
14. The concurring opinion in State v. Torres-Orellana, 2021 UT
App 74, 493 P.3d 711, cert. granted, 502 P.3d 268 (Utah 2021),
noted that this standard of review is problematic. Specifically,
the concurrence suggested that when reviewing a trial court’s
ruling on an ineffective assistance of counsel claim raised in a
motion for a new trial, appellate courts should review the court’s
prejudice ruling for abuse of discretion instead of for correctness
because “there is simply no jurist better positioned to assess
whether the interest of justice requires a new trial, and whether a
trial error or impropriety has caused a substantial adverse effect
on the defendant’s rights.” Id. ¶ 47 (Harris, J., concurring)
(quotation simplified). Our Supreme Court has granted certiorari
to review our holding in that case, perhaps to consider the
concurring opinion’s noteworthy observations, but pending an
opinion from the Court on that issue, we remain bound by
precedent and apply a nondeferential standard of review in
evaluating both the trial court’s deficient performance and
prejudice analyses.
20200561-CA 20 2022 UT App 38State v. Salazar
elements of the crime charged.”) (emphasis added) (quotation
otherwise simplified).
¶33 Salazar first asserts that “the district court erred in
admitting Shannon’s testimony and in declining to strike it even
after she admitted that she had no independent memory of most
of the events.” But he later asserts that “[t]his court should
reverse the conviction” and that Trial Counsel “sought this
remedy when he made a motion for directed verdict based on
the fact that Shannon did not remember what happened.”
Salazar then takes another turn in his actual analysis and
proceeds to quote exclusively from the trial court’s order
denying his motion for a new trial on this issue and does not cite
or quote the court’s statements in denying his directed verdict
motion.
¶34 In essence, Salazar is presenting three avenues for review:
(1) evaluation of the court’s decision to admit evidence;
(2) evaluation of the court’s decision to deny his motion for
directed verdict; and (3) evaluation of the court’s decision to
deny his motion for a new trial. These three avenues, however,
do not give rise to the same standard of review. See State v.
Lowther, 2017 UT 34, ¶ 17, 398 P.3d 1032 (“The appropriate
standard of review for a district court’s decision to admit or
exclude evidence is abuse of discretion.”) (quotation simplified);
State v. Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d 1168 (“We review a
trial court’s ruling on a motion for directed verdict for
correctness.”); State v. Colwell, 2000 UT 8, ¶ 12, 994 P.2d 177(“When reviewing a trial court’s denial of a motion for a new
trial, we will not reverse absent a clear abuse of discretion by the
trial court.”) (quotation simplified). But because Salazar’s
analysis focuses all but exclusively on the trial court’s order
denying his motion for a new trial, this would be the avenue we
would consider. Given that, we decline to address this issue
because, due to our determination that Salazar is entitled to a
new trial as a result of Trial Counsel’s ineffectiveness, Salazar
gets the remedy he is asking for anyway, i.e., a new trial.
20200561-CA 21 2022 UT App 38State v. Salazar
ANALYSIS
¶35 Salazar contends that Trial Counsel was ineffective for not
using the Voxer messages at trial. Specifically, he asserts that
Trial Counsel could not have acted reasonably, and that he was
prejudiced as a result, because the messages would have
“showed that Shannon lied when she repeatedly and
unequivocally testified at the preliminary hearing that she never
again contacted [Salazar].” 15
¶36 An ineffective assistance claim requires a defendant to
prove both that (1) “counsel’s performance was deficient” and
15. There is some disagreement on appeal regarding Salazar’s
claim that Trial Counsel performed deficiently in not
investigating the Voxer messages. The State argues that Salazar
has failed to rebut the presumption that Trial Counsel acted
appropriately and investigated the messages because Salazar
provides no further information regarding Trial Counsel’s
efforts beyond stating that he gave the iPod to Trial Counsel. See
State v. Wright, 2021 UT App 7, ¶ 57, 481 P.3d 479 (stating that if
the defendant cannot “point to anything in the record to
substantiate what Counsel failed to do,” courts “presume that
they did what they should have done”) (quotation simplified).
This is ultimately unimportant to our analysis because even if
we accept the State’s argument that Trial Counsel is presumed to
have investigated the messages, it does not change our
conclusion that Trial Counsel was ineffective for not using them
at trial. Furthermore, the trial court stated, “There’s evidence
before me that [Trial Counsel] had them and elected not to use
them.” Thus, we do not conclude that Trial Counsel failed to
investigate the existence of the messages, because he actually
had the messages, even though it is suggested by Salazar that
Trial Counsel did not have the technical expertise to access and
review them. Instead, our analysis focuses on his decision not to
use them at trial.
20200561-CA 22 2022 UT App 38State v. Salazar
(2) “the deficient performance prejudiced the defense.” Strickland
v. Washington, 466 U.S. 668, 687 (1984).
¶37 To establish deficient performance, i.e., that counsel’s
actions “fell below an objective standard of reasonableness,” the
defendant must overcome the “strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 688–89. Indeed, “even if an
omission is inadvertent and not due to a purposeful strategy,
relief is not automatic.” State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d
871 (quotation simplified). Instead, “the ultimate question is
always whether, considering all the circumstances, counsel’s acts
or omissions were objectively unreasonable.” State v. Scott, 2020
UT 13, ¶ 36, 462 P.3d 350.
¶38 To establish prejudice, “a defendant must present
sufficient evidence to support a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Archuleta v. Galetka, 2011 UT 73,
¶ 40, 267 P.3d 232 (quotation simplified). “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Strickland, 466 U.S. at 694.
I. Deficient Performance
¶39 Salazar asserts that because this case hinged on Shannon’s
credibility, Trial Counsel performed deficiently in not
introducing the Voxer messages to undermine her credibility.
We agree.
¶40 Here, Shannon was the lead witness for the State, and the
testimony of the other witnesses called by the State was intended
to support her testimony. It may be that the case could have
been ably tried a different way, but it was not, and we must
analyze Trial Counsel’s actions in light of the legal landscape he
confronted at the time. See Strickland v. Washington, 466 U.S. 668,
690 (1984) (“[A] court deciding an actual ineffectiveness claim
20200561-CA 23 2022 UT App 38State v. Salazar
must judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of
counsel’s conduct.”) (emphasis added). Against this background,
we conclude that, with Shannon as the State’s lead and most
critical witness, any reasonable counsel would have presented
the Voxer messages to undermine her credibility.
¶41 This case is similar to Gregg v. State, 2012 UT 32, 279 P.3d
396. In that case, “Ms. S.” alleged that Gregg, whom she had met
on a dating website, raped her after they met in person. Id. ¶¶ 4,
6. There were no witnesses to the incident, but Ms. S.’s friends
came to her apartment soon after the alleged rape and witnessed
Ms. S. crying. Id. ¶¶ 8–9. Her friends convinced her to go to the
hospital for a sexual assault examination, and eventually she
contacted the police and charges were filed. Id. ¶¶ 9–11. With no
physical evidence of or witnesses to the rape, the case hinged
largely on Ms. S.’s credibility. Id. ¶ 30.
¶42 At trial, Ms. S. testified that she logged onto the dating
website “after the alleged rape to aid the police investigation.”
Id. ¶ 23. Gregg was convicted. On appeal, he argued that his trial
counsel was ineffective because counsel failed to investigate
emails Ms. S. sent to other men on the dating website two days
after the alleged rape, which would have undermined her
credibility. Id.
¶43 Our Supreme Court agreed and reversed. Id. ¶¶ 23, 49. It
held that because the case hinged on Ms. S.’s credibility, counsel
acted unreasonably in not investigating or presenting the emails
that would have “directly rebutted” Ms. S.’s claim that she
accessed her online dating account only to aid the police.
Id. ¶ 29. It explained that, “although it is undisputed that a
person can be convicted of rape solely on the testimony of the
victim, we have nevertheless held that where the conviction is
not strongly supported by the record and trial counsel fails to
investigate and present evidence impacting the victim’s
credibility, Strickland is met.” Id. ¶ 30 (quotation simplified).
20200561-CA 24 2022 UT App 38State v. Salazar
¶44 Here, much like the situation in Gregg, Shannon was the
only witness to the event—aside from Salazar and Owner—and
her credibility was central to Salazar’s conviction. And
Shannon’s credibility was already in some doubt, more so than
was that of Ms. S. in Gregg. While Shannon was on the stand, she
stated approximately 40 times that she did not remember
specifics about the incident. And the jury had to watch, time and
again, a recurring exercise through almost the entirety of
Shannon’s testimony in which the prosecutor showed her
documents with highlights and sticky notes in an attempt to
refresh her recollection and aid her testimony. Shannon was also
not able to keep her story about the soda straight. When first
talking to the detective, Shannon stated that she had a soda that
made her feel strange before the assault. She repeated that claim
to the nurse. But at the preliminary hearing, Shannon testified
that the soda did not affect her in any way. And at trial, she
testified that she did not remember telling the detective or the
nurse about the soda. Thus, there were already cracks in
Shannon’s credibility.
¶45 Given this backdrop, see State v. Scott, 2020 UT 13, ¶ 36,
462 P.3d 350 (noting that when analyzing whether trial counsel’s
performance was unreasonable courts must consider “all the
circumstances”), just as it was unreasonable for counsel in Gregg
not to present the emails to undercut Ms. S.’s credibility, it was
likewise unreasonable for Trial Counsel in this case not to use
the Voxer messages to undercut Shannon’s already problematic
credibility. At the preliminary hearing, Shannon categorically
stated that, following a few messages sent soon after the assault
that she reported to the police, she blocked Salazar and had no
further contact with him. Then, at trial, she testified that she did
not “recall having contact or socializing with . . . Salazar after the
[incident]” but simply stated, “I was told that I reported
something before to the cops, but I don’t remember.” And
Shannon did state that it was “correct” that “at the preliminary
hearing under oath [she] said that [she] would never have had
contact with [Salazar] after the fact” and that if she ran into him,
20200561-CA 25 2022 UT App 38State v. Salazar
“it probably wouldn’t have been a big deal” because she was
“just trying to put it all behind [her].” The Voxer messages,
therefore, would have directly contradicted Shannon’s
statements at the preliminary hearing and at trial, and would
likely have undermined her credibility in the eyes of the jury, in
conjunction with her inability to remember most of the specifics
of the assault without the prosecutor’s direction and her
changing story about the soda. Thus, just as in Gregg, because
“the conviction is not strongly supported by the record and trial
counsel fail[ed] to . . . present evidence impacting the victim’s
credibility,” Trial Counsel’s failure to present the Voxer
messages at trial was objectively unreasonable. See 2012 UT 32,
¶ 30.
¶46 The State argues that Gregg is distinguishable from this
case. It contends that in Gregg, there was no “independent
physical evidence that supported or contradicted the victim’s
testimony” whereas here, the nurse testified that Shannon’s
injuries were the worst she had ever seen. We disagree. While
the nurse did, in fact, testify that the injuries were the worst she
had seen, she still conceded that they could have come from
consensual sex, so the exam did not categorically establish that a
non-consensual encounter occurred.16 This is not such
compelling “physical evidence” of a rape that it shifts the
16. In State v. Torres-Orellana, 2021 UT App 74, 493 P.3d 711, cert.
granted, 502 P.3d 268 (Utah 2021), we held that the degree of the
injuries the victim sustained to her genitals was indicative of
non-consensual sex. See id. ¶ 35. But in that case, the severity of
the injuries was also accompanied by the examining nurse’s
testimony that “the number and seriousness of the injuries [the
victim] suffered to her genital area . . . were caused by ‘several
different motions,’ which was highly indicative of
non-consensual sex.” Id. ¶ 39. See id. ¶ 35. Torres-Orellana is
therefore distinguishable from the case now before us because
no such testimony appears in our record.
20200561-CA 26 2022 UT App 38State v. Salazar
evidentiary picture from solely relying on Shannon’s credibility
and distinguishes our case from Gregg. The case still primarily
hinged on Shannon’s testimony just as it did on Ms. S.’s
testimony in Gregg. And the nurse’s testimony did not so alter
the evidentiary landscape as to change that.
¶47 The State also argues that this case is distinguishable
because there is no indication that the prosecutor in Gregg “was
poised to rebut the unpresented emails . . . with a rape-myth
expert.” As we discuss later, see infra ¶¶ 49–50, the threat of a
rape-myth expert was overblown in the context of the Voxer
messages and does not significantly distinguish this case from
Gregg. The messages would properly have been used only to
attack Shannon’s credibility and would not have been used to
suggest that Shannon’s behavior after the alleged assault was
indicative of someone who had not been raped. Thus,
there would have been no logical connection between the
rape-myth expert’s testimony and whether Shannon was a
credible witness.
¶48 Finally, the State argues that “unlike the unpresented
impeachment evidence in Gregg . . . , the Voxer evidence would
have been relevant only to a side issue, not the central issues in
the case.” This argument is equally unpersuasive. In Gregg, the
unpresented emails went only to the issue of Ms. S.’s credibility
because she testified at trial that she did not use her online
dating account after the rape except to help police, when in fact
she continued to use it to send messages to other men. Here, the
evidence was on the same footing, as Shannon said she never
contacted Salazar after the assault while the Voxer messages
show that she did. We cannot see how the Voxer messages are
simply “a side issue” in this case while the messages in Gregg
went to “the central issues in the case.” In both cases, the
impeachment evidence showed that the complaining witnesses
were not completely credible in their testimony, and in both
cases the underlying inconsistencies were unrelated to the
alleged assault.
20200561-CA 27 2022 UT App 38State v. Salazar
¶49 Here, the trial court did not analyze the reasonableness of
Trial Counsel’s performance but instead dismissed Salazar’s
claim because it ruled that Salazar could not show prejudice. The
State, however, provides three reasons on appeal why Trial
Counsel could have reasonably decided not to use the Voxer
messages.
¶50 First, the State asserts that Trial Counsel could have been
“reasonably concerned that the jury would still believe
Shannon’s testimony . . . even if counsel used the Voxer
messages, because the Voxer evidence said nothing about
whether Shannon consented to a threesome in the closet that
night.” This argument misses the point. Properly viewed, the
Voxer messages had nothing to do with the claimed assault and
dealt only with Shannon’s credibility. She had testified that she
did not have contact with Salazar after the rape, except right
after the incident, following which she blocked him and reported
the contact to the police. But the Voxer messages show that she
did have further contact with Salazar. A decision by Trial
Counsel not to use the messages as impeachment evidence
because he feared that the jury might nonetheless find Shannon
credible and still believe her account of the assault would not be
reasonable and would be an abdication of counsel’s “duty” to
make “the trial a reliable adversarial testing process.” See
Strickland v. Washington, 466 U.S. 668, 688 (1984). Credibility is
ultimately the jury’s call, to be sure, but when a case turns on
credibility, competent representation will include giving the jury
relevant information to help it gauge the credibility of a critical
adverse witness.
¶51 Second, the State posits that Trial Counsel also had to
consider “whether he could lay foundation for or authenticate
the Voxer messages.” This argument is also unpersuasive. With
the exception of a single text message, the Voxer messages were
voice messages sent from Shannon, and almost any of the
witnesses at trial could have authenticated them based on their
familiarity with her voice. See Utah R. Evid. 901(a), (b)(5) (stating
20200561-CA 28 2022 UT App 38State v. Salazar
that “[a]n opinion identifying a person’s voice—whether heard
firsthand or through mechanical or electronic transmission or
recording—based on hearing the voice at any time under
circumstances that connect it with the alleged speaker” is
“evidence that satisfies” “the requirement of authenticating or
identifying an item of evidence”). Indeed, Shannon herself could
presumably have authenticated them. Thus, Trial Counsel could
have easily authenticated the messages, and this minimal hurdle
would not have deterred reasonable counsel from presenting
them.
¶52 Third, the State asserts that Trial Counsel acted
reasonably because he “knew from his discussions with the
prosecutor that if he introduced the Voxer evidence for any
purpose, including attempting to impeach Shannon’s testimony
. . . , the prosecutor would call a rape-myth expert to explain her
counterintuitive behavior.” The State reads too much into this
possibility. The prosecutor did not inform Trial Counsel that if
he presented the Voxer messages for any purpose, such as to
attack Shannon’s credibility, the prosecutor would call a
rape-myth expert. In fact, when responding to Salazar’s claim
about Trial Counsel not calling Junior and Tim, the prosecutor
argued that Salazar “wants this court to buy into the idea that a
‘victim’ should respond to their rapist in some standardized
manner, but research shows this simply is not true.” The
prosecutor explained, with our emphasis, that “there was
discussion between the parties about the potential of the State
calling a ‘Rape Myth’ expert which did not occur” because Trial
Counsel “made the decision not to pursue this theory of the case.”
Then, when responding directly to Salazar’s Voxer arguments,
the prosecutor noted that when the messages “were located, the
State would need to evaluate them and determine whether a . . .
rape myth expert would have been required.” Thus, it is clear
the prosecutor’s threat to call such an expert hinged primarily on
the notion that if Trial Counsel used the Voxer messages to
suggest that Shannon’s behavior after the incident was
counterintuitive, the prosecutor would call the expert to put that
20200561-CA 29 2022 UT App 38State v. Salazar
evidence into proper context. The State understandably said
nothing about calling the expert if the messages were used only
to undermine Shannon’s credibility. Thus, this threat of calling
an expert witness is not a basis on which to conclude that Trial
Counsel acted reasonably. Trial Counsel could have made clear
to the court and the jury that the defense did not in any way
contend that the Voxer messages showed that Shannon
consented to the sexual encounter with Salazar and Owner,
foreclosing any relevance of a rape-myth expert, while
hammering home the argument that the messages showed
Shannon was not a credible witness.
¶53 But even if a rape-myth expert had been called to
testify, notwithstanding Trial Counsel’s position, the jury would
have recognized that there was no logical connection
between the expert’s testimony and the reason the evidence
was being presented. Thus, reasonable counsel would have
pressed forward and presented this critical credibility
evidence. Ultimately, we agree with Salazar that “Shannon’s
friendly behavior after the incident had little if any probative
value” as concerns consent. “But her lying about [the
post-rape contact] had enormous probative value . . . . So it
would not have mattered if the prosecution called a rape-myth
expert.”
II. Prejudice
¶54 Having concluded that Trial Counsel performed
deficiently in not introducing the Voxer messages at trial, we
must now determine whether Salazar was prejudiced as a result.
Salazar contends that Trial Counsel’s deficient performance
prejudiced him because Shannon’s “testimony was the only
direct evidence of guilt” and thus “[t]here is a reasonable
probability that the outcome would have changed if the jury
heard that Shannon had perjured herself.” Without embracing
Salazar’s perjury characterization, we agree with Salazar’s basic
point.
20200561-CA 30 2022 UT App 38State v. Salazar
¶55 Here, the trial court ruled that Salazar had not been
prejudiced by Trial Counsel’s failure to use the Voxer messages.
It found that while Shannon did testify that she had no contact
with Salazar after the assault, she did state “that she had
forgotten she exchanged messages with [Salazar] and reported
the messages to the police.” Thus, the trial court determined,
“presenting the Voxer messages to the jury would have
confirmed [Shannon’s] testimony as much as it would have
impeached it.” This is incorrect.
¶56 Although Shannon did say she had forgotten about the
messages that she reported to the police, those messages were
ones she earlier said had been received in the days immediately
after the alleged assault. The Voxer messages, on the other hand,
were exchanged approximately three months after the incident,
at a point in time when Shannon had been adamant that she had
no deliberate contact with Salazar. Thus, the Voxer messages
would not have confirmed Shannon’s testimony. On the
contrary, they would have demonstrated, at a minimum, that
Shannon had yet more memory gaps regarding her
communication with Salazar and, potentially, that she had lied
about having contact with Salazar later. 17 Thus, the Voxer
17. While Shannon was obviously not a stellar witness, the jury
might have been inclined to cut her some slack because of the
traumatic event she described, perhaps concluding that it would
be reasonable for her to have blocked some details from her
memory during the seven-year gap between the incident and
trial. But the exchanges shown by the Voxer messages are not the
kind of incidental communication one would somehow forget.
Over a period of roughly eight days, Shannon sent twenty voice
messages and one text message to Salazar in which she invited
Salazar to come hang out with her, discussed joining the Air
Force, talked about a car accident she was in, and spoke of her
father’s cancer diagnosis.
20200561-CA 31 2022 UT App 38State v. Salazar
messages would have further undercut Shannon’s credibility,
not strengthened it.
¶57 The trial court also ruled that even if the jury had
reasoned that the Voxer messages indicated Shannon lied at the
preliminary hearing, the jury could still have found her credible
at trial. While this is true in the abstract—the jury could
conclude she lied before but was truthful at trial or even that
while lying about her later encounters with Salazar she was
nonetheless truthful about her claims of rape—it is not
dispositive. The court based its reasoning primarily on the fact
that Shannon’s “testimony was corroborated by [Friend’s]
testimony and was consistent with statements she made to [the
nurse] and [Coworker].” We disagree that this “corroborating”
testimony was so strong as to overcome any likely change in the
result at trial had the jury been presented with the Voxer
messages.
¶58 Shannon was the lead witness in the case, and the State’s
prospects for a conviction primarily rested on her testimony.
Thus, every sound challenge to her credibility, which was
already on shaky ground, significantly increased the chances
that the jury would find her incredible as a witness,
undercutting the State’s ability to demonstrate Salazar’s guilt
beyond a reasonable doubt. True, there was testimony from
individuals about Shannon’s emotional state that evening, just as
there was in Gregg, along with testimony from the nurse that
Shannon’s injuries were the worst she had ever seen. But the
nurse conceded that the injuries did not prove lack of consent.
And there “was no independent physical evidence that
supported or contradicted [Shannon’s] testimony, and therefore,
the conviction is not strongly supported by the record.” See
Gregg v. State, 2012 UT 32, ¶ 30, 279 P.3d 396.
¶59 Accordingly, we are persuaded that the jury’s view of
Shannon’s credibility would likely have been materially different
if the Voxer messages had been presented to it. Given Shannon’s
20200561-CA 32 2022 UT App 38State v. Salazar
problematic testimony and the lack of necessarily inculpatory
physical evidence, the Voxer messages would have “affected the
overall evidentiary picture,” see id., and the jury may well have
found Shannon less credible, regardless of the other testimony.
Thus, had Trial Counsel further undercut Shannon’s credibility
by introducing the Voxer messages, “there is a reasonable
probability that . . . the result of the proceeding would have been
different.” See Strickland v. Washington, 466 U.S. 668, 694 (1984).
See also State v. Larrabee, 2013 UT 70, ¶¶ 35–37, 321 P.3d 1136(holding that counsel’s deficient performance prejudiced the
defendant when there was little physical evidence and the case
turned on the victim’s credibility); Gregg, 2012 UT 32, ¶¶ 26–28
(same); State v. Templin, 805 P.2d 182, 188 (Utah 1990) (same);
State v. Bujan, 2006 UT App 322, ¶ 32, 142 P.3d 581 (same), aff'd,
2008 UT 47, 190 P.3d 1255.
CONCLUSION
¶60 Trial Counsel performed deficiently in not introducing
the Voxer messages at trial, and this failure prejudiced Salazar.
We therefore reverse Salazar’s conviction and remand for a new
trial.
20200561-CA 33 2022 UT App 38