State v. Zimpfer ( 2024 )

2024 UT App 136THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
BRANDON MACKINNON ZIMPFER,
Appellant.
Opinion
No. 20210841-CA
Filed September 19, 2024
Third District Court, Salt Lake Department
The Honorable L. Douglas Hogan
No. 201901951
Emily Adams, Hannah Leavitt-Howell, and Melissa
Jo Townsend, Attorneys for Appellant
Sean D. Reyes, Christopher A. Bates, and Andrew F.
Peterson, Attorneys for Appellee
JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
LUTHY, Judge:
¶1 Brandon Mackinnon Zimpfer appeals from his conviction
on charges of forcible sexual abuse and voyeurism. He argues that
the trial court abused its discretion by admitting certain
testimonial and documentary evidence and that his trial counsel
(Counsel) rendered ineffective assistance by failing to seek the
exclusion of certain video evidence and in not presenting expert
testimony. We see no reversible error relating to the issues
Zimpfer raises, and we therefore affirm.
State v. Zimpfer
BACKGROUND 1
¶2 Zimpfer and Girlfriend first met toward the end of 2019,
and they started dating in January 2020. At the time, Girlfriend
was renting a room in a basement apartment in West Jordan, with
her landlord (Landlord) living upstairs. Zimpfer soon started
spending the night at Girlfriend’s apartment, sometimes
engaging in consensual sex with Girlfriend while there.
¶3 At one point in this timeframe, Zimpfer borrowed
Girlfriend’s car and got into “a fender bender.” According to
Zimpfer, Girlfriend was very upset about the damage to her car
and frequently pestered Zimpfer about fixing the car.
¶4 Zimpfer stayed the night at Girlfriend’s apartment on
January 20, 2020. That evening, Girlfriend, who was about two
months pregnant and struggling with sleep disorders, had trouble
falling asleep, and Zimpfer gave her a pill to help her sleep,
assuring her it was safe to take while pregnant. In the early
morning hours of January 21, Zimpfer used Girlfriend’s phone to
take fourteen pictures, most of which showed Girlfriend lying in
bed, fully clothed, and with her eyes closed.
¶5 Zimpfer also used the phone to record a nearly four-
minute video of himself and Girlfriend. At the start of the video,
Girlfriend appears to be sleeping, with Zimpfer’s head resting on
her stomach. At about twenty seconds into the video, Zimpfer
moves Girlfriend’s shirt to expose her breast and touches her
nipple with his thumb. Girlfriend then rolls over and mumbles
something inaudible. Zimpfer then asks her a question, to which
1. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly. We present
conflicting evidence only when necessary to understand issues
raised on appeal.” State v. Cruz, 2020 UT App 157, n.1, 478 P.3d
631 (cleaned up), cert. denied, 481 P.3d 1040 (Utah 2021).
20210841-CA 2 2024 UT App 136State v. Zimpfer
she mumbles a response. A few seconds later, Girlfriend begins
snoring, and Zimpfer laughs and says she sounds “like a cricket.”
¶6 Zimpfer can then be seen shaking his crotch and briefly
exposing his partially erect penis. He then stands, repositions
himself, and exposes his erect penis, putting it near and on
Girlfriend’s face. Girlfriend ultimately pushes Zimpfer away and
mumbles something. Girlfriend continues snoring but also has
another mumbled exchange with Zimpfer.
¶7 Zimpfer again lies down with his head on Girlfriend, and
she resumes snoring. In the last thirty seconds of the video,
Zimpfer pulls down Girlfriend’s blanket, to which she responds
by asking what he is doing. He answers that he is making a
“homemade video.” In response, Girlfriend mumbles something
about her sleep schedule. The video then ends with Zimpfer
commenting that he cannot figure out the password to
Girlfriend’s phone.
¶8 The following morning, Girlfriend left for an appointment
and Zimpfer remained alone in her bedroom. At some point, he
left the room to use the restroom and encountered Landlord.
Landlord asked Zimpfer what he was doing at the apartment, and
Zimpfer explained that he was “the boyfriend” and was “staying
over.” Landlord responded that Girlfriend was not allowed to
have people staying overnight and that Zimpfer needed to pack
his things and leave, which Zimpfer then did. Shortly thereafter,
Girlfriend picked Zimpfer up and gave him a ride to his parents’
house, where she and Zimpfer stayed that evening and overnight.
¶9 After returning to her apartment at some point the next
day, January 22, Girlfriend broke up with Zimpfer. That same
day, Zimpfer discovered that he could not find his anxiety
medication and texted Girlfriend, asking her about the pills’
disappearance, telling her, among other things, that he might
have to “look at the camera photos” taken at his parents’ house to
figure out where the pills had gone, and stating, “If I can’t find
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them, . . . I have to file a police report to get my medication. You
know how bad I am without it.” Girlfriend responded that she
had “absolutely no idea where[]” the pills were and said, “I
encourage you to watch the videos, file a police report, and also
find out.”
¶10 It was not until the following day, January 23, that
Girlfriend discovered the photos and the video on her phone that
Zimpfer had taken on January 21. She contacted the West Jordan
Police Department that day and filed a report. The report was
forwarded to a detective in the special victims unit (Detective) to
continue investigating. After an investigation, the State charged
Zimpfer with forcible sexual abuse and voyeurism, and the case
proceeded to trial.
Opening Statements
¶11 During her opening statement, the prosecutor told the jury
that this was, “from the State’s perspective, . . . a fairly simple
case,” and she described the video taken by Zimpfer,
characterizing it as “the central piece of evidence” in the case. The
prosecutor then briefly discussed other testimony the State would
present and ended by reiterating the charges—specifying that the
forcible sexual abuse charge was “for the touching of
[Girlfriend’s] breast while she was unconscious.”
¶12 Counsel then addressed the jury, asserting that the case
was not as simple as the prosecutor had suggested. Counsel
asserted that the elements of the crime of voyeurism were not met
because, among other things, the video was recorded with
Girlfriend’s knowledge and participation. Specifically, Counsel
contended that Girlfriend unlocked her phone for Zimpfer prior
to him making the video and that she was responsive and aware
as the video was recorded. As proof of Girlfriend’s awareness,
Counsel twice referenced the portion of the video where
Girlfriend pushed Zimpfer away when he put his erect penis on
or near her face.
20210841-CA 4 2024 UT App 136State v. Zimpfer
¶13 Counsel maintained that Girlfriend’s assertion that she
was unaware of the video until January 23 “doesn’t make sense”
and that her real reason for reporting the video to police was
something other than her simple discovery of it on her phone.
Counsel pointed out that Girlfriend was “already in a concerned
state of mind,” both because she could lose her housing from
having an overnight guest and because she was worried about
having money to fix her car that Zimpfer had damaged. Counsel
contended that Zimpfer’s accusation on January 22 that Girlfriend
stole some of his pills was ultimately the driving force behind her
decision to go to the police with the video, stating, “It’s only when
he says, you stole my pills and I’m going to the cops, that she
thinks, what am I going to do about this? And the evidence is
going to show you, she decided to beat him to it. She decided to
go to the police first.”
Girlfriend’s Testimony
¶14 Girlfriend testified first, recounting the events of her short
relationship with Zimpfer and her recollections of the night the
video was created. Girlfriend explained that she had taken some
prescription medications on the night of January 20 but that due
to “huge sleeping disorders,” she was struggling to sleep. She
then related that Zimpfer had given her a pill to help her sleep
and she had taken the pill and thereafter fallen asleep. The next
thing she remembered was waking up the following morning.
¶15 Girlfriend testified that she had been keeping a journal
during this period of time, and the prosecutor asked her about
some of her journal entries. Counsel objected, arguing that the
journal entries were not admissible as prior consistent statements
because they did not “predate the motive to fabricate.” The trial
court overruled the objection, and the journal entries were
admitted into evidence.
¶16 The journal entry for January 21—the same day the early-
morning video was created—was admitted and read as follows:
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“Ooh and dang it. My landlord kicked out [Zimpfer], yes, perfect
timing. This shall dissipate as well.” Girlfriend explained that she
“was coming out of a very hard time in [her] life” and felt like she
“couldn’t stand up for [herself]” and kick Zimpfer out, and that
she was “really relieved” when Landlord “stepped in” and did so.
¶17 Girlfriend testified that two days later, on January 23, she
discovered the photos and video Zimpfer had taken on her phone.
As to the photos, she said that she did not “remember the photos
actually being taken” and did not give permission for the photos
to be taken. As to the video—the entirety of which was played for
the jury—Girlfriend said that when she first saw it she did not
recognize it, was “shocked,” and “didn’t know how [it] could
have happened.” She testified that she had not given permission
for the video to be recorded, that she had not consented to the
touching that was shown in the video, and that she “believe[d]
strongly” that her lack of memory of that night “was because of
the pill that [Zimpfer] gave [her].”
¶18 The journal entry for January 23 was also admitted, and it
read as follows: “Thursday, boy, I slept good. Wow, I was so tired.
I just have work today, but just saw some photos on my phone.
This is sickening, WTF, and then I saw a video, holy—what did
he give me that night that made me—that made me go pass out
like that? Called the [West Jordan] police, I knew something was
off with him, always trying to get me to take the drugs. I’m
pregnant. Help.” Also on that journal page was a place to list
things for which the writer is grateful, and on this day, Girlfriend
had written “[t]he police and being okay.”
The Responding Officer’s Testimony
¶19 The State then presented the testimony of the officer who
had, on January 23, responded to Girlfriend’s call to the police. He
testified that when he first saw Girlfriend, “she was very
distressed, shaking pretty profusely, crying, her makeup was
smeared, and she seemed pretty scared.” He testified that
20210841-CA 6 2024 UT App 136State v. Zimpfer
Girlfriend showed him the photos and video “of what had taken
place” and that she accused Zimpfer of drugging her, stating,
“The whole time that he was here, he kept offering me, you know,
[anxiety medication] and all this stuff.” The officer testified that
he then referred the case to a detective.
Detective’s Testimony
¶20 Detective testified regarding the investigation that
followed Girlfriend’s report. At the outset of Detective’s
testimony, after briefly explaining her qualifications and training,
Detective described her actions upon being assigned to this case.
She explained that she started by reviewing the photos and video
taken by Zimpfer as well as the audio recording of the responding
officer’s interview with Girlfriend. This exchange between the
prosecutor and Detective followed:
Q. . . . So did reviewing this video help sort of direct
the course of your investigation?
A. Yes.
Q. And how is that?
A. In reviewing . . . the video, . . . it didn’t appear as
though [Girlfriend] was awake, and gave any type
of consent for the actions that [Zimpfer] took.
Q. And so as you viewed the video, and made the
observations, what kind of things were you seeing
that led you to believe that?
Counsel then objected, arguing that the jury members “can view
the video themselves and come to their own conclusions.”
Although the trial court agreed with that assertion, it also
determined that the prosecutor’s question was “appropriate” and
that Detective could “explain why she’[d] reached that
20210841-CA 7 2024 UT App 136State v. Zimpfer
conclusion.” Detective then responded, “When I reviewed it, I
saw [Girlfriend], her eyes were closed, she didn’t seem to be
participating in what was happening. I heard her snoring. I heard
[Zimpfer] make a comment about her snoring, that he heard her
snoring. And that made me believe that she was asleep.”
¶21 The prosecutor then specifically referenced the mumbled
exchange between Girlfriend and Zimpfer toward the end of the
video and asked if that exchange changed Detective’s “original
determination.” Counsel again objected that Detective’s
assessment was “irrelevant” and that allowing such testimony
“invad[es] the province of the jury.” The trial court overruled the
objection but paused the questioning to provide the following
instruction to the jury:
You may recall from the preliminary
instructions, and you’ll see in the final instructions
when we get there, when it comes to the ultimate
facts in the case, I’m just going to remind you that
you’re the finder of fact. Okay? You’re going to
hear—you’ll hear testimony from lots of people. But
ultimately, of the evidence that’s been admitted to
court, you’re going to take that back in the jury
room, and you’re going to be the ones that have to
decide what happened. What the facts are. Okay?
So just bear in mind that, as you hear
testimony, and as you hear evidence, that
ultimately, you’re the ones that have to make
decisions about what the actual facts are in the case.
Okay?
Questioning then resumed with the prosecutor restating the
question about whether the exchange at the end of the video
“[did] anything to dispel [Detective’s] concerns from what [she]
had previously viewed in the video,” and Detective responding
in the negative. The prosecutor then asked about the “next steps
20210841-CA 8 2024 UT App 136State v. Zimpfer
in the investigation,” and Detective discussed her subsequent
investigative steps.
¶22 At the close of the State’s case, Counsel moved for a
mistrial based on the comments by Detective related to consent
or, alternatively, for the court to give a curative instruction on
“what is evidence and what is not evidence.” Counsel also
requested that the court strike Detective’s comments related to
consent. The court denied both the motion for a mistrial and the
motion to strike, but it agreed to give a curative instruction
regarding what is evidence and what is not evidence for the jury
to consider.
Zimpfer’s Testimony
¶23 Zimpfer testified in his defense. He explained that he has
“a traumatic brain injury” that affects his short-term memory. He
testified that due to this brain injury, he would not have been able
to remember the security code on Girlfriend’s phone and that she
had entered the code and unlocked the phone for him right before
he made the video on January 21.
¶24 As to the video, Zimpfer testified that Girlfriend was
“[f]ully conscious” and “very aware” of what was going on
during the video. He testified that the two “were fraternizing back
and forth” during the video and that he thought Girlfriend “was
joking around” when she could be heard snoring in the video.
Additionally, Zimpfer said that immediately after the video
concluded, Girlfriend “[s]pritely” got up and made him some
food.
¶25 Zimpfer also discussed his encounter with Landlord on
January 21. He related that not only did Landlord kick him out,
but Landlord also indicated “that this was the last straw for
[Girlfriend], that she’d be leaving too.” Zimpfer testified that
Girlfriend was “upset” when she learned of the encounter with
Landlord and also that Girlfriend agreed, when the two were
20210841-CA 9 2024 UT App 136State v. Zimpfer
speaking with Zimpfer’s mother, “that she no longer had a place
to stay” and that “she was kicked out.” Zimpfer also testified that
he and Girlfriend were on the same anxiety medication, that she
was often taking some of his pills, and that he could not find his
medication after she spent the night with him at his parents’
house, prompting him to send her a text message asking where
his pills were.
¶26 On cross-examination, the prosecutor demonstrated—by
having Zimpfer “press a button that looks like a camera” on a
locked phone similar to Girlfriend’s—that the camera for taking
pictures and video on such a device can be accessed without a
passcode. Zimpfer responded, “That’s cool. I did not know that.”
In response to questioning about the video, he reiterated that he
and Girlfriend “had just been barely interacting” before the video,
that Girlfriend was awake and alert during the recording of the
video, and that he thought “she was faking” being asleep.
Closing Statements
¶27 At the close of trial, both sides presented closing
arguments. The prosecutor asserted that “the critical facts” of the
case were contained “on the video and in the photographs” and
argued that they showed that Girlfriend did not consent: “The
issue here is consent. Did [Girlfriend] actually consent? She said
she did not consent to any of the 14 photos or the video that was
taken. And you have the video of her actual conduct.” The
prosecutor reminded the jury that “[i]f [Girlfriend] was asleep,
she did not consent” and then argued as follows:
[Zimpfer] takes 14 photos that all show
[Girlfriend] sleeping. Then he starts the video. He
whispers as he talks to the camera. He comments
that she’s snoring, that she sounds like a cricket. He
lays on her while she continues to snore. At the very
end of the video, she mumbles something about,
what is he doing? And he tells her that he’s making
20210841-CA 10 2024 UT App 136State v. Zimpfer
a home video. This is after he uncovers her, after he
touches her breast, and after he places his penis on
her face and mouth. So did he know she did not
consent? All factors point to yes.
¶28 Counsel, in response, reminded the jury that “[i]t is never
the defendant’s burden to prove his innocence” and that “[t]he
burden never leaves the State and the prosecutor to establish
beyond a reasonable doubt the lack of consent.” Counsel then
argued that the State had failed to carry its burden as to consent,
specifically pointing to evidence that Girlfriend unlocked the
phone for Zimpfer and to the portion of the video where she asked
Zimpfer what he was doing and he responded that he was making
a video.
Conviction and Appeal
¶29 The jury ultimately convicted Zimpfer on both charges—
forcible sexual abuse and voyeurism. Zimpfer now appeals.
Zimpfer has also filed with this court a motion under rule 23B of
the Utah Rules of Appellate Procedure, arguing that Counsel
rendered ineffective assistance when he failed to present expert
testimony to establish “that [Zimpfer’s] brain injury would have
prevented him from memorizing the passcode to [Girlfriend’s]
phone,” and requesting that we “remand this case to the district
court for the entry of findings of fact necessary” to determine that
issue.
ISSUES AND STANDARDS OF REVIEW
¶30 Zimpfer first contends that the trial court improperly
admitted Detective’s testimony regarding consent. “The trial
court has wide discretion in determining the admissibility of
testimony, and such decisions are reviewed under an abuse of
discretion standard. Under this standard, we will not reverse
unless the decision exceeds the limits of reasonability.” State v.
20210841-CA 11 2024 UT App 136State v. Zimpfer
Davis, 2007 UT App 13, ¶ 7, 155 P.3d 909 (cleaned up); see also
Davidson v. Prince, 813 P.2d 1225, 1230 (Utah Ct. App.) (“In
reviewing the admissibility of evidence at trial, we give deference
to the trial court’s advantageous position, and do not overturn the
result unless it is clear the trial court erred.”), cert. denied, 826 P.2d
651 (Utah 1991). 2
¶31 Next, Zimpfer argues that the trial court incorrectly
allowed the State to submit Girlfriend’s journal entries as prior
consistent statements. Again, “the appropriate standard of review
for a district court’s decision to admit or exclude evidence is abuse
of discretion.” State v. Green, 2023 UT 10, ¶ 43, 532 P.3d 930(cleaned up). “If the district court applies the correct legal
standard, it abuses its discretion only when its decision to admit
or exclude evidence is beyond the limits of reasonability.” Id.(cleaned up).
¶32 Zimpfer additionally asserts that Counsel rendered
ineffective assistance when he did not seek to prevent certain
portions of the video from being shown to the jury. “When a claim
of ineffective assistance of 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.” State v. Miller, 2023 UT
App 85, ¶ 22, 535 P.3d 390 (cleaned up), cert. denied, 540 P.3d 78(Utah 2023).
2. Relatedly, Zimpfer asserts that the trial court erred in denying
his motion to strike Detective’s testimony and his motion for a
mistrial based on Detective’s testimony. Because these motions
were based on his assertion that Detective’s testimony was
improper, and because we ultimately disagree with Zimpfer on
this point, these additional arguments likewise fail, and we do not
address them further.
20210841-CA 12 2024 UT App 136State v. Zimpfer
¶33 In addition to the foregoing claims, we also address
Zimpfer’s rule 23B motion, in which he raises a second argument
of ineffective assistance of counsel, this time challenging
Counsel’s failure to put on expert testimony regarding Zimpfer’s
memory limitations due to his brain injury. A rule 23B remand
“will be available only upon a nonspeculative allegation of facts,
not fully appearing in the record on appeal, which, if true, could
support a determination that counsel was ineffective.” Utah R.
App. P. 23B(a).
ANALYSIS
I. Detective’s Testimony
¶34 Zimpfer challenges the trial court’s decision to admit
(1) Detective’s testimony that when she first reviewed the video,
“it didn’t appear as though [Girlfriend] was awake, and gave any
type of consent for the actions that [Zimpfer] took” and
(2) Detective’s subsequent response that the dialogue recorded
near the end of the video did not “dispel [those initial] concerns.” 3
Specifically, Zimpfer argues that with this testimony Detective
impermissibly “answered the specific question the jury would
later need to decide” and impermissibly “tied her own opinions
to Utah law” because “here the legal and non-legal definitions of
‘consent’ are the same.” We disagree with each assertion.
¶35 Under rule 704 of the Utah Rules of Evidence, “[a]n opinion
is not objectionable just because it embraces an ultimate issue.”
Utah R. Evid. 704(a). Notwithstanding this rule, “opinions that tell
the jury what result to reach or give legal conclusions continue to
3. To the extent that the objection below could have preserved an
evidentiary issue under rule 701(b) of the Utah Rules of Evidence
as well, that issue has not been pursued on appeal, and we
therefore do not address it.
20210841-CA 13 2024 UT App 136State v. Zimpfer
be impermissible.” State v. Davis, 2007 UT App 13, ¶ 15, 155 P.3d
909 (cleaned up).
While there is no bright line between responses that
embrace an ultimate issue and those that provide an
impermissible legal conclusion, testimony is likely
to constitute an impermissible legal conclusion if it
is framed in a way that is unhelpful to the factfinder;
blurs the separate and distinct responsibilities of the
judge, jury, and witness; or creates a danger that a
juror may turn to the witness’s legal conclusion
rather than the judge for guidance on the applicable
law.
State v. Brown, 2019 UT App 122, ¶ 28, 447 P.3d 1250 (cleaned up),
cert. denied, 456 P.3d 390 (Utah 2019); see also Davis, 2007 UT App
13, ¶¶ 15–16.
¶36 Despite the lack of a bright-line distinction, we have stated
that witnesses “quite clearly” provide impermissible legal
conclusions when they “tie their opinions to the requirements of
Utah law.” State v. Tenney, 913 P.2d 750, 756 (Utah Ct. App.), cert.
denied, 923 P.2d 693 (Utah 1996); see also Brown, 2019 UT App 122,
¶ 32 (“[The witness’s] one general reference to the disclosure
requirements of ‘securities laws’ could not reasonably be
construed as a legal conclusion, because the information provided
was general and not tied to a specific law.”); Davis, 2007 UT App
13, ¶¶ 14, 17 (stating that a witness inappropriately rendered a
legal conclusion because he “applied the facts of the case to the
prohibitions in the statute” by testifying as to his “understanding
of the statute” that the defendant’s fingerprints “obviously meant
he handled the firearm and that possession [of a firearm] is to hold
and to have it in your hands under your control” (cleaned up));
State v. Bryant, 965 P.2d 539, 548 (Utah Ct. App. 1998) (holding that
witness testimony was properly allowed where “the prosecutor
did not ask the [witness] to opine as to whether the facts of [the]
20210841-CA 14 2024 UT App 136State v. Zimpfer
case met the legal definition of robbery, nor [could] her testimony
reasonably be understood that way”).
¶37 Similarly, we have concluded that opinion testimony was
impermissible when it “was an answer to a specific question
which would appear on the verdict form.” Davidson v. Prince, 813
P.2d 1225, 1231 (Utah Ct. App.), cert. denied, 826 P.2d 651 (Utah
1991); see also Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1348
(Utah 1993) (affirming the trial court’s exclusion of witness
testimony that would “allocate the actual percentage of
negligence between” two arguably negligent parties, reasoning
that “apportionment of negligence . . . was exclusively the jury’s
responsibility”); Davis, 2007 UT App 13, ¶ 17; Davidson, 813 P.2d
at 1231–32 (determining that witness testimony expressing a
“final conclusion that [the defendant] was negligent” was
properly excluded, but also basing this determination, in part, on
the fact that the witness was “allowed to give his opinion as to . . .
the reason [the defendant’s] truck overturned while going around
a curve, that the truck was traveling too fast for the curve, what
the speed limit was at the curve, whether a person hauling
livestock should be concerned with his load and what the
concerns should be, and whether a person hauling livestock could
foresee the possibility of injury if the truck overturned”).
¶38 On the other hand, when witnesses have used a term “in
its ordinary meaning rather than its legal meaning,” we have
determined that their testimony was appropriately admitted.
Brown, 2019 UT App 122, ¶ 32; see also State v. Larsen, 865 P.2d
1355, 1362 (Utah 1993) (“Given that ‘materiality’ has a popular
meaning bearing directly on the factual issue before the jury and
that [the witness’s] testimony, when read in context, seems to use
‘material’ as a synonym for ‘important,’ we do not believe that the
trial court abused its discretion by admitting [the] testimony.”);
Brown, 2019 UT App 122, ¶ 32 (allowing a witness’s testimony
where the “occasional use of the term ‘material’ during his
testimony was used in its ordinary meaning rather than its legal
20210841-CA 15 2024 UT App 136State v. Zimpfer
meaning” (cleaned up)); Bryant, 965 P.2d at 548 (“Here, the
victim’s casual use of the word, ‘robbery,’ was factual, not legal.
Thus, the trial court did not err in allowing her testimony.”).
¶39 The testimony at issue here was elicited toward the
beginning of the prosecutor’s examination of Detective. After
asking Detective about her training and qualifications, the
prosecutor walked Detective through the steps of her
investigation. The prosecutor initially asked Detective what she
did “when [she] first kind of dug into the case.” Detective replied
that she commenced by reviewing the initial report, the video, the
photographs, and the audio recording of Girlfriend’s police
interview. After a few follow-up questions clarifying that the
video and photographs Detective was referencing were those in
evidence in the case, the prosecutor continued to walk Detective
through her investigative process, asking, “Okay. So did
reviewing this video help sort of direct the course of your
investigation?” Detective answered in the affirmative and then
explained, “In reviewing . . . the video, . . . it didn’t appear as
though [Girlfriend] was awake, and gave any type of consent for
the actions that [Zimpfer] took.”
¶40 This first comment to which Zimpfer objected—the only
one in which Detective used the word “consent”—was in
response to questions about what “direct[ed] the course of
[Detective’s] investigation.” And the comment was clearly
couched in terms of what the video “appear[ed]” to show upon
an initial viewing, prior to any investigation; Detective did not
testify that those initial appearances were borne out by the
subsequent investigation. That is, in context, with this first
comment, Detective was not concluding definitively that Zimpfer
acted without Girlfriend’s consent, just that the video raised
enough of a question to merit further investigation.
¶41 Furthermore, in this first comment, Detective made no
mention of the law, let alone suggested to the jury that the facts
20210841-CA 16 2024 UT App 136State v. Zimpfer
here ultimately satisfy the “without consent” elements at issue.
See generally Utah Code § 76-5-406(2); id. § 76-9-702.7(1)(b). In fact,
Detective’s initial assessment was not inconsistent with the
defense’s theory of the case, that is, that Girlfriend “was joking
around” by snoring and pretending to be asleep in the video but
that her actions before the video started (entering her phone
passcode for Zimpfer) and after the video ended (jumping up to
go make food) show the real story, which is that Girlfriend was
“very aware” during the video. Thus, the jury could have been
entirely in agreement with Detective’s testimony as to the initial
impression conveyed by the video and nonetheless acquitted
based on believing Zimpfer’s fuller explanation of the events.
¶42 The second statement to which Zimpfer objected—in
which Detective did not use the word “consent”—was Detective’s
response to a follow-up question regarding the short exchange
between Zimpfer and Girlfriend at the end of the video and
whether that exchange “[did] anything to dispel [Detective’s]
concerns” about what she had seen in the video. Thus, this
statement, too, was regarding Detective’s initial assessment and
did not convey an ultimate conclusion. Nor with this statement
did Detective fashion any sort of tie to Utah law or suggest that
any statutory element of the alleged crimes was satisfied in this
case. Therefore, this statement also did not rise to the level of an
impermissible legal conclusion.
¶43 Zimpfer argues that Detective’s testimony regarding
consent “indicat[ed] that the jury needed to be looking for some
affirmative action indicating [Girlfriend] consented” and, thus,
did not “follow[] the statutory scheme,” which required the State
to prove that Zimpfer’s conduct was “without consent.” See
generally id. § 76-5-404(2)(a) (defining forcible sexual abuse as a
qualifying act that is done “without the consent” of the victim); id.
§ 76-9-702.7 (defining voyeurism as a qualifying act that is done
“without the knowledge or consent” of the victim). But the fact
that Detective’s testimony was inconsistent with the statute’s
20210841-CA 17 2024 UT App 136State v. Zimpfer
usage of “without consent” actually supports the conclusion that
Detective was not tying her testimony to any particular law but
was simply using the ordinary, colloquial meaning of “consent.”
¶44 Additionally, although Zimpfer asserts that the legal and
non-legal definitions of consent are the same in this case, that is
not entirely accurate. The jury instruction defining “consent”
listed several scenarios in which “[t]he alleged sexual conduct
[would be] without consent,” including the following: if
Girlfriend was “coerced . . . to submit” by threat of retaliation, if
Girlfriend was incapable of “understanding the nature of the act”
due to a mental illness or defect, if Zimpfer knew Girlfriend
participated because she mistakenly thought he was someone
else, or if Zimpfer “intentionally impaired [Girlfriend’s] power to
understand or control [her] conduct by giving [her] a substance
without [her] knowledge.” See id. § 76-5-406(2) (listing various
circumstances under which a sexual act “is without consent of the
victim”). Thus, even though one could say in these hypothetical
situations that Girlfriend had agreed to be a participant in the
sexual conduct—thus meeting the ordinary meaning of
“consent,” see Consent, Merriam-Webster, https://www.merriam-
webster.com/dictionary/consent [https://perma.cc/TS8E-WMBF]
(defining “consent” as “to give assent or approval: AGREE”)—
that agreement would not have satisfied the legal definition and
would legally be “without consent.” Of course, Zimpfer is correct
that the instruction went on to state, “You may also apply the
common, ordinary meaning of consent to all of the facts and
circumstances of this case.” (Emphasis added.) But because there
is no exact overlap between the legal and colloquial definitions of
consent, and because Detective’s testimony was completely
divorced from any reference to statutory requirements and her
one use of the word “consent” could have easily been replaced
with the non-legal synonym “agree,” we conclude that the fact
that the legal meaning of consent includes its colloquial meaning
did not make Detective’s testimony at issue per se inadmissible.
20210841-CA 18 2024 UT App 136State v. Zimpfer
¶45 In sum, Detective’s single use of the word “consent” when
describing the impetus for her further investigation, as well as her
clarification that the dialogue at the end of the video did not dispel
her initial concerns, did not “tell the jury what result to reach or
give legal conclusions.” State v. Davis, 2007 UT App 13, ¶ 15, 155
P.3d 909 (cleaned up). The trial court therefore did not abuse its
discretion in allowing such testimony.
II. Girlfriend’s Journal Entries
¶46 Zimpfer next argues that the trial court improperly
admitted two of Girlfriend’s journal entries as prior consistent
statements. 4 We disagree.
¶47 Under rule 801 of the Utah Rules of Evidence, the
definition of hearsay encompasses written statements that are
“offer[ed] in evidence to prove the truth of the matter asserted in
the statement.” Utah R. Evid. 801(c); see also id. R. 801(a) (including
a “written assertion” within the definition of “[s]tatement”). But
this rule also excludes from the definition of hearsay certain prior
statements of a witness. See id. R. 801(d)(1). To avoid qualifying as
hearsay, the prior statement must be “consistent with the
[witness’s] testimony” and “offered to rebut an express or implied
4. The prosecutor’s initial justification for the admission of the
journal entries was that they were prior consistent statements, but
she also argued that the journal entries were admissible as
recorded recollections. See generally Utah R. Evid. 803(5) (setting
forth the recorded recollection exception to the rule against
hearsay). From the discussion that followed Zimpfer’s objection,
it appears that the trial court’s admissibility determination was
based entirely on the journal entries qualifying as prior consistent
statements, and the State concedes on appeal that the recorded
recollection exception does not apply to the journal entries. We
therefore do not discuss further this potential alternative
justification for the entries’ admission.
20210841-CA 19 2024 UT App 136State v. Zimpfer
charge that the [witness] recently fabricated it or acted from a
recent improper influence or motive in so testifying.” Id. R.
801(d)(1)(B). Thus, the statement must have been “made before
the charged recent fabrication or improper influence or motive.”
State v. Bujan, 2008 UT 47, ¶ 8, 190 P.3d 1255 (cleaned up). Against
this legal backdrop, we now address each journal entry in turn.
A. The January 21 Journal Entry
¶48 The trial court ruled that the January 21 journal entry—the
one in which Girlfriend wrote that Landlord’s “kick[ing]
[Zimpfer] out” was “perfect timing” because Girlfriend “couldn’t
stand up for [herself]” and was “really relieved” when Landlord
“stepped in”—was a non-hearsay prior consistent statement and
could be properly admitted. Zimpfer contests this ruling, arguing
that the State offered both journal entries “for an improper
purpose” and that the January 21 journal entry was written “after
the motive to fabricate arose.”
¶49 Zimpfer’s argument that the State offered the journal
entries for an improper purpose is based entirely on the timing of
the State’s introduction of the journal entries. He essentially
contends that because the journal entries were admitted during
the prosecutor’s direct examination of Girlfriend, as opposed to
after she had been cross-examined by Counsel, “the only possible
purpose of the entries at that point was to boost [Girlfriend’s]
credibility.”
¶50 The assertion underlying this argument—that a charge of
recent fabrication made during opening statements, as opposed
to during the presentation of evidence, is insufficient to justify the
admission of a prior consistent statement under rule 801—is one
that we decline to address. We see no similar assertion below that
would have brought this issue to the attention of the trial court,
see State v. Sanchez, 2018 UT 31, ¶ 30, 422 P.3d 866 (“In order to
preserve an issue for appeal the issue must be presented to the
trial court in such a way that the trial court has an opportunity to
20210841-CA 20 2024 UT App 136State v. Zimpfer
rule on that issue. To meet [this] preservation requirement, the
issue must be sufficiently raised to a level of consciousness before
the trial court and must be supported by evidence or relevant
legal authority.” (cleaned up)), and on appeal this assertion was
neither directly expressed nor supported with any authority until
Zimpfer’s reply brief, leaving the State no opportunity to respond
to it, see Brown v. Glover, 2000 UT 89, ¶ 23, 16 P.3d 540 (“Generally,
issues raised by an appellant in the reply brief that were not
presented in the opening brief are considered waived and will not
be considered by the appellate court. This is to prevent the
resulting unfairness to the respondent if an argument or issue was
first raised in the reply brief and the respondent had no
opportunity to respond.” (citation omitted)). Thus, we consider
this argument waived and decline to overturn the trial court’s
ruling on this basis. 5
¶51 As to his argument regarding the timing of the journal
entry in relation to the emergence of a motive to fabricate, Zimpfer
5. In his argument on this point, Zimpfer also suggests that a prior
consistent statement may be considered only for its rehabilitative
purpose and not for its substance. Zimpfer is correct that our
supreme court has stated that the purpose of excluding prior
consistent statements from the definition of hearsay is “to admit
statements that rebut a charge of recent fabrication or improper
influence or motive, not to bolster the believability of a statement
already uttered at trial.” State v. Bujan, 2008 UT 47, ¶ 11, 190 P.3d
1255. But the supreme court has also stated that “premotive,
consistent, out-of-court statements are . . . admitted both for
rehabilitative purposes and, more importantly to the purpose of
the rule, for their substance.” Id. (emphasis added). Thus, a jury
may properly consider such statements for more than just their
rehabilitative purpose. See id.; see also id. ¶ 9 (contrasting evidence
admissible under the common law for only its rehabilitative
purpose and evidence admitted “substantively under rule
801(d)(1)(B)”).
20210841-CA 21 2024 UT App 136State v. Zimpfer
asserts that his accident while driving Girlfriend’s car and his
actions that placed Girlfriend’s housing in jeopardy created
motives for Girlfriend to fabricate and that they both predated the
journal entry. This argument is unavailing.
¶52 First, we agree with the State that neither of these incidents
was specifically raised by Counsel below as a potential motive for
fabrication. In his opening statement, Counsel did mention
Girlfriend’s housing concerns and her damaged car, remarking,
“And because of that, she’s already in a concerned state of mind
. . . .” But Counsel went on to discuss Zimpfer’s missing pills and
that he had accused Girlfriend of taking the pills and threatened
to make a police report. Counsel then asserted, “It’s only when he
says, you stole my pills and I’m going to the cops, that she thinks,
what am I going to do about this? And the evidence is going to
show you, she decided to beat him to it. She decided to go to the
police first.” Then when Counsel objected to the journal entries at
trial, the only potential motive to fabricate that he identified was
Zimpfer’s threat to go to the police about his missing pills.
¶53 Nonetheless, regardless of whether the two additional
motives to fabricate were adequately argued below, Zimpfer’s
argument on this point ultimately fails because it is clear that the
January 21 journal entry was recorded before some alleged motive
to fabricate arose. Recently, in State v. Green, 2023 UT 10, 532 P.3d
930, our supreme court specifically rejected the argument that “for
a prior consistent statement to be admissible under rule 801, it
must have been given before any potential motive to fabricate
arose.” Id. ¶¶ 86–87. The court instead concluded, “It is not
necessary that a prior consistent statement have been made before
all motives to fabricate arose. The rule requires merely that the
witness’ prior consistent statement be offered to rebut an express
or implied charge against him of recent fabrication or improper
influence or motive.” Id. ¶ 100 (cleaned up). Thus, because the
January 21 journal entry was written before one of the motives to
fabricate—the motive arising from Zimpfer’s January 22 threat to
20210841-CA 22 2024 UT App 136State v. Zimpfer
contact the police about his missing pills—it meets the
requirements of a prior consistent statement under rule 801.
B. The January 23 Journal Entry
¶54 The journal entry for January 23 was also admitted, and it
read as follows: “Thursday, boy, I slept good. Wow, I was so tired.
I just have work today, but just saw some photos on my phone.
This is sickening, WTF, and then I saw a video, holy—what did
he give me that night that made me—that made me go pass out
like that? Called the [West Jordan] police, I knew something was
off with him, always trying to get me to take the drugs. I’m
pregnant. Help.” Also on that journal page was a place to list
things for which the writer is grateful, and on this day Girlfriend
had written “[t]he police and being okay.”
¶55 The trial court admitted the January 23 journal entry as
another prior consistent statement. But because this journal entry
was made after all alleged motives to fabricate arose, it does not
qualify as a prior consistent statement under rule 801, and it was
an abuse of discretion for the court to have admitted it as such. See
State v. Green, 2023 UT 10, ¶ 100, 532 P.3d 930. The State
apparently concedes this point, arguing on appeal that this second
journal entry was admissible, instead, under the excited utterance
exception to the rule against hearsay. See generally Bailey v. Bayles,
2002 UT 58, ¶ 10, 52 P.3d 1158 (“It is well settled that an appellate
court may affirm the judgment appealed from if it is sustainable
on any legal ground or theory apparent on the record, even
though such ground or theory differs from that stated by the trial
court to be the basis of its ruling or action, and this is true even
though such ground or theory is not urged or argued on appeal
by appellee, was not raised in the lower court, and was not
considered or passed on by the lower court.” (cleaned up)).
¶56 For a statement to qualify under the excited utterance
exception to the rule against hearsay, the statement must be
“relating to a startling event or condition” and must have been
20210841-CA 23 2024 UT App 136State v. Zimpfer
“made while the declarant was under the stress of excitement that
it caused.” Utah R. Evid. 803(2); see also West Valley City v. Hutto,
2000 UT App 188, ¶ 15, 5 P.3d 1 (“Hearsay statements fall within
the excited utterance exception when (1) a startling event or
condition occurred, (2) the statement was made while the
declarant was under the stress of excitement caused by the event
or condition, and (3) the statement relates to the startling event or
condition.” (cleaned up)). “The reasoning [behind the exception]
is simple: the stress and excitement of the event suppress the
declarant’s ability to reflect or calculate self interest in a manner
that would produce a lie.” Hutto, 2000 UT App 188, ¶ 12. Thus,
this exception is narrow and “limited to truly spontaneous
outbursts” as opposed to “the ongoing discourse of an excited
individual.” Id. ¶ 14 (cleaned up). For this exception to apply, “the
declarant has to have ‘remained’ under the original,
uninterrupted, and unsubsided stress of the startling event when
making the statements.” Id. ¶ 15 (cleaned up).
¶57 Even assuming we were to agree with the State that the
discovery of the video was a startling event to which the journal
entry related, we agree with Zimpfer that it is not clear from the
record that Girlfriend made the journal entry while she was still
under the stress caused by that discovery. The State points to the
journal entry itself and its statement that Girlfriend “just saw
some photos on [her] phone.” But along with this mention of
discovering the photos and video on her phone, the journal entry
also stated that Girlfriend had “called the [West Jordan] police,”
thus indicating a passage of some time between the discovery of
the video and the creation of the journal entry. It is therefore not
apparent from the record that the January 23 journal entry was a
“truly spontaneous outburst,” id. ¶ 14 (cleaned up), made while
Girlfriend “remained” under the original stress of the arguably
startling event of the discovery of the video, id. ¶ 15 (cleaned up).
Consequently, on this record, we cannot affirm the court’s
decision to admit the journal entry based on the excited utterance
exception.
20210841-CA 24 2024 UT App 136State v. Zimpfer
¶58 However, while we agree with Zimpfer that the admission
of the second journal entry was an abuse of discretion, we
ultimately determine that this error was harmless. “An error is
harmless and does not require reversal if it is sufficiently
inconsequential that we conclude there is no reasonable
likelihood that the error affected the outcome of the proceedings.
Stated differently, the likelihood of a different outcome absent the
error must be sufficiently high to undermine confidence in the
verdict.” State v. Reece, 2015 UT 45, ¶ 33, 349 P.3d 712 (cleaned up).
¶59 The improperly admitted journal entry was, as it clearly
states, written after Girlfriend made her report to the police. And
the officer who responded to Girlfriend’s report testified that on
January 23 Girlfriend “was very distressed, shaking pretty
profusely, crying, her makeup was smeared, and she seemed
pretty scared” and accused Zimpfer of drugging her. In other
words, the jury received other admissible evidence that conveyed
the same information contained in the January 23 journal entry—
that upon discovering the photos and video on her phone,
Girlfriend was upset and suspected that Zimpfer had drugged
her. Because the January 23 journal entry is, therefore, largely
cumulative of other admissible evidence, we are not convinced
that there is a reasonable probability of a different outcome had
the January 23 journal entry not been admitted. 6 Cf. State v. Jones,
6. We disagree with Zimpfer’s assertion that this case was
essentially a “credibility contest” because “[n]o one except
[Zimpfer] and [Girlfriend] were in the room during the video,”
and with his related assertion that “‘the State’s case depends
virtually exclusively on the credibility of a witness.’” (Quoting
McCray v. State, 716 A.2d 302, 308 (Md. Ct. Spec. App. 1998).)
These assertions aim to amplify the importance of the journal
entries’ potential to influence the jury’s view of Girlfriend’s
credibility. But they completely overlook the non-testimonial
evidence of the video itself and, thus, exaggerate the significance
of the credibility issues before the jury.
20210841-CA 25 2024 UT App 136State v. Zimpfer
2020 UT App 31, ¶ 35, 462 P.3d 372 (“[W]here testimony is merely
cumulative, we are disinclined to find prejudice even when the
testimony was improperly admitted.”). Thus, the error in its
admission is harmless, and we will not disturb the jury’s verdict
on this basis.
III. The Video Evidence
¶60 Zimpfer argues that Counsel provided ineffective
assistance by not seeking to exclude a portion of the video,
specifically the forty-five-second portion in which he exposes his
penis and puts it in Girlfriend’s face, and she pushes him away.
Zimpfer argues that this conduct “was more prejudicial than
probative and should have been excluded from trial” under rule
403 of the Utah Rules of Evidence. See Utah R. Evid. 403 (“The
court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice
. . . .”).
¶61 “To prevail on a claim of ineffective assistance of counsel,
a criminal defendant must show that (1) ‘counsel’s performance
was deficient’ and (2) ‘the deficient performance prejudiced the
defense.’” State v. Miller, 2023 UT App 85, ¶ 25, 535 P.3d 390(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)), cert.
denied, 540 P.3d 78 (Utah 2023). The first element of the test
requires “show[ing] that counsel’s representation fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at 688.
The second element of the test “requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Id. at 687. “A defendant’s inability
to establish either element defeats a claim for ineffective
assistance of counsel.” Miller, 2023 UT App 85, ¶ 25 (cleaned up).
Here, Zimpfer has failed to establish the first element.
¶62 Our deficient performance assessment “must be highly
deferential.” Strickland, 466 U.S. at 689. We “must indulge a strong
presumption that counsel’s conduct falls within the wide range of
20210841-CA 26 2024 UT App 136State v. Zimpfer
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id.(cleaned up). “If it appears counsel’s actions could have been
intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance.” State v.
Ray, 2020 UT 12, ¶ 34, 469 P.3d 871. Such is the situation before us.
¶63 Counsel did not simply acquiesce to the State’s use of this
portion of the video. Instead, Counsel himself relied on the video
to support the defense’s theory of the case. Twice in Counsel’s
opening statement, he referenced this very part of the video,
arguing that Girlfriend pushing Zimpfer away showed that she
was aware of and responsive to what was happening during the
video, that is, that she was not actually asleep as it might have, in
some respects, appeared. And in closing argument, Counsel
continued to rely on an argument that Girlfriend was “aware” in
the video.
¶64 Zimpfer responds that such a strategy was not reasonable
because the charged conduct of touching Girlfriend’s breast
occurred earlier in the video and that “[w]hether [Girlfriend] was
awake and pushed away [Zimpfer’s] penis accordingly does not
bear on whether she was awake at the time he touched her
breast.” But Counsel argued that Girlfriend was awake during the
whole video—having entered her passcode before the video
started and jumping up after the video ended to go make food.
Therefore, any actions within the video that would suggest that
Girlfriend was alert and responsive would have supported that
theory.
¶65 We acknowledge that it might also have been a reasonable
trial strategy for Counsel to forgo using the contested portion of
the video and, instead, to seek to have it excluded under rule 403.
But the existence of another reasonable trial strategy does not
establish deficient performance. In reality, “[t]here are countless
20210841-CA 27 2024 UT App 136State v. Zimpfer
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.” Strickland, 466 U.S. at 689.
¶66 Ultimately, we have no trouble determining that the trial
strategy Counsel chose to employ “falls within the wide range of
reasonable professional assistance” and that Zimpfer has not
established deficient performance with regard to this issue.
Therefore, Zimpfer’s ineffective assistance argument fails.
IV. Expert Testimony
¶67 Finally, we address Zimpfer’s rule 23B motion, which
argues that Counsel also rendered ineffective assistance by failing
to “investigate or call expert witnesses who could have testified
that [Zimpfer’s] brain injury would have prevented him from
memorizing the passcode to [Girlfriend’s] phone and that he
would have had trouble even recalling the code long enough to
input the code if [Girlfriend] had told it to him.” Remand under
rule 23B is available only when the facts alleged in the motion, “if
true, could support a determination that counsel was ineffective.”
Utah R. App. P. 23B(a). Thus, we will not remand a case if the
alleged facts, if true, would fail to establish either counsel’s
deficient performance or a prejudicial impact resulting therefrom.
See Strickland v. Washington, 466 U.S. 668, 687 (1984) (setting forth
the elements of the ineffective assistance test). Here, the facts
alleged in Zimpfer’s motion, even if true, do not establish that
Counsel performed deficiently in failing to investigate further and
call expert witnesses to testify about Zimpfer’s brain injury.
¶68 First, we note that Zimpfer himself testified as to his brain
injury and its relevant effects. He testified that his “traumatic
brain injury” affected his short-term memory, which means he
“cannot remember . . . numbers” and that security codes are
“really difficult” for him. Thus, the evidence that Zimpfer argues
should have been presented by experts was placed before the jury
through other means, lessening the importance of the expert
20210841-CA 28 2024 UT App 136State v. Zimpfer
testimony. See State v. Walker, 2010 UT App 157, ¶ 16, 235 P.3d 766(determining that certain expert testimony “was not critical
because the defense was able to address [the issue] by cross-
examining the State’s lay witnesses”), cert. denied, 241 P.3d 771(Utah 2010).
¶69 Second, we do not agree with Zimpfer’s suggestion that
expert testimony regarding his brain injury was nonetheless
“critical to the case” (quoting State v. Hales, 2007 UT 14, ¶ 79, 152
P.3d 321), because it did not go to a contested issue. Zimpfer’s
testimony about his brain injury was given to support his
assertion that Girlfriend entered the passcode for her phone
before Zimpfer started recording. But the prosecutor challenged
Zimpfer’s testimony not by casting doubt on the existence of a
brain injury or the purported severity of its effects, but by
demonstrating that a video can be made on a passcode-protected
phone like Girlfriend’s without anyone entering the passcode at
all—by simply pressing the camera icon on the screen of the
locked phone. Thus, the point at issue was not whether Zimpfer
suffered from a brain injury and how extensive the impact of that
injury was but, rather, whether he had made the video without
the passcode having been entered at all. Consequently, reasonable
counsel could have determined that expert testimony on the
matter of the brain injury was simply not necessary.
¶70 Of course, expert testimony verifying Zimpfer’s assertions
regarding his brain injury might have had some marginal
beneficial effect on Zimpfer’s credibility, but that alone does not
establish that Counsel performed deficiently by failing to present
it. See State v. Houston, 2015 UT 40, ¶ 82, 353 P.3d 55 (concluding
that although certain expert testimony “may have been helpful”
to the defense, it “was not required” and counsel “certainly was
not ineffective for . . . [failing] to retain an expert on [the] topic”);
State v. Tyler, 850 P.2d 1250, 1256 (Utah 1993) (“[C]ounsel’s
decision to call or not to call an expert witness is a matter of trial
strategy, which will not be questioned and viewed as
20210841-CA 29 2024 UT App 136State v. Zimpfer
ineffectiveness unless there is no reasonable basis for that
decision.”). Under these circumstances, where Zimpfer testified
regarding his brain injury and that testimony was not challenged
by the State, the decision to forgo expert testimony on the matter
did not fall “below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688. Thus, the facts alleged in Zimpfer’s rule
23B motion do not “support a determination that counsel was
ineffective,” Utah R. App. P. 23B(a), and we accordingly deny the
motion.
CONCLUSION
¶71 The trial court did not abuse its discretion in admitting
Detective’s testimony or Girlfriend’s January 21 journal entry.
Although admission of her January 23 journal entry was an abuse
of discretion, we determine that the error in this regard was
harmless. Finally, Zimpfer’s claims of ineffective assistance fail
because Counsel did not perform deficiently in failing to seek
exclusion of a portion of the video or in failing to present expert
testimony regarding Zimpfer’s brain injury. Accordingly, we
affirm.
20210841-CA 30 2024 UT App 136