State v. Steele

2021 UT App 39THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
THORPE STEELE,
Appellant.
Opinion
No. 20190441-CA
Filed April 8, 2021
Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 171910312
Emily Adams, Freyja Johnson, and Cherise M.
Bacalski, Attorneys for Appellant
Sean D. Reyes and David A. Simpson, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion,
in which JUDGE MICHELE M. CHRISTIANSEN FORSTER and
SENIOR JUDGE KATE APPLEBY concurred. 1
MORTENSEN, Judge:
¶1 Thorpe Steele does not deny he had sex with his trainee,
Emma. 2 Instead, he claims their sexual attraction was so
significant that within thirty minutes of meeting, the two engaged
in passionate sexual activity, during business hours, in the sleeper
compartment of a semi-truck parked in their employer’s parking
lot. And he claims that they pledged to continue to do so daily for
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
2. We employ the pseudonym Emma to protect her privacy.
State v. Steele
the next month. But within minutes after Steele left the truck,
Emma, sobbing and hysterical, reported that she had been raped.
Charges and a trial followed, and Steele now appeals his
convictions for rape and forcible sodomy. He generally contends
that his attorneys provided ineffective assistance based on the
way they handled evidence of Emma’s sexual orientation. We
affirm.
BACKGROUND 3
¶2 Emma owned a farm where she and her wife (Wife) raised
sheep. Emma decided to get a commercial driver license so that
she could haul hay and livestock for her farm. To that end, she
signed up with a trucking company (the Company) that offered a
commercial driver license program. The program included on-
the-job training, which required each trainee to drive a truck on a
long-haul trip under the supervision of an experienced trucker.
The Company assigned Emma to drive under Steele’s
supervision, meaning that Emma and Steele would be driving his
truck together for approximately twenty-eight days. Wife
dropped Emma off at the Company’s headquarters on the
morning that the long-haul trip was supposed to begin. Emma
was both nervous and excited about making her first long-haul
trip, and she expressed her intention to call Wife every day and
night while she was away.
¶3 Emma and Steele met for the first time that day. Steele was
about thirty years older than Emma, nearly one foot taller,
outweighed her by close to sixty pounds, and was missing half his
front teeth. After introducing herself, Emma loaded her bags into
3. “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).
20190441-CA 2 2021 UT App 39State v. Steele
Steele’s truck. When Emma, who was wearing shorts, bent over
to pick up one of her belongings, Steele remarked, “Oh, you
shave. That’s good because the last girl didn’t.” Steele followed
this by saying, “what happens in the truck stays in the truck.”
Steele then showed her around the truck, eventually leading her
into the sleeper cab—a compartment of the truck cabin with a
bunk bed and television. Steele showed Emma a knife and
mentioned that two others were placed throughout the sleeper
cab.
¶4 Steele sat on the bottom bunk bed while Emma tried to get
her bearings in the sleeper cab. Suddenly, he grabbed her as she
was trying to figure out how to operate the television, thrust one
of his hands down her shorts and underwear, and pushed them
down to her ankles. Emma told Steele to stop. Instead, he put his
hand up her shirt and grabbed her breasts, telling Emma to
undress. When Emma again told him, “[N]o,” Steele responded,
“[N]o is not an option,” and threatened to hurt her if she did not
comply. Emma felt hopeless, as though “there was nothing [she]
could do” while Steele pushed her aside to close the curtains and
lock the doors. Emma ended up face down on the bed, and Steele
tried to pry her legs open while grabbing her ponytail and biting
her shoulder. Steele was eventually able to insert his penis into
Emma’s vagina, demanding that she say it “felt good” and that
she “wanted it.” Steele eventually flipped Emma onto her back
and put his penis into her mouth. When Steele finished, he told
Emma to “forget about [her] family” because she was “going to
be his whore for the next month,” and he repeated, “what
happens in the truck stays in the truck.” Steele then left to take a
shower.
¶5 Emma fled the truck in a panic. She yelled for help, but no
one else was close enough to hear, so she used her phone to call
one of her former trainers. Emma was “[t]remendously [in] tears”
on the phone and, in the trainer’s own words, “[I]t took
everything I had to get her to calm down on the phone to find out
20190441-CA 3 2021 UT App 39State v. Steele
what was going on.” When the trainer discerned that she needed
help, he told her to find a safe place to hide while he called for
help.
¶6 Emma hid in a bathroom until an employee found her and
escorted her to the human resources office. There, an employee in
that department observed that Emma “came in crying” and, after
the employee ushered her into another room, she sat on the floor
and “cr[ied] the whole time.” Concerned by her observations of
Emma, the employee pointedly asked Emma if she had been
raped. Emma managed to say, “[Y]es,” before crumpling to the
floor and crying uncontrollably. When a police officer arrived
shortly thereafter, Emma was “very visually shaken up.” Emma
was crying the entire time the officer tried to ascertain what had
happened, but eventually she told him that her “trainer driver”
had raped her. Wife arrived soon after and likewise observed
Emma “sitting in the fetal position on the floor, rocking[,] . . .
crying, really shook up.”
¶7 At that point, the officer told Wife, “We really need to take
[Emma] over to the hospital to have the examination done.” Wife
drove Emma to the hospital, where a sexual assault nurse
examiner proceeded to examine her. Emma was “very tearful”
and “had to stop several times to collect . . . and compose herself,”
but she was able to tell the nurse what had happened. During the
examination, the nurse specifically found fresh “linear abrasions”
that “matched [Emma’s] narrative” that Steele had bitten her
shoulder. The nurse concluded that, based on the totality of the
examination, Emma’s injuries were medically consistent with her
description of the rape.
¶8 When Steele spoke with police, he claimed that what
happened in the truck—which took place approximately thirty
minutes after the two met for the first time—was a consensual
encounter. According to Steele, when he first met Emma, he told
her she “was cute” and “had nice eyes.” He further claimed that
20190441-CA 4 2021 UT App 39State v. Steele
when they were in the sleeper cab, they stared into one another’s
eyes before “lean[ing] in” and kissing. Emma, Steele said, then
“made some movements towards him,” which initiated the sexual
encounter. Steele said he told Emma, “You don’t have to do this,
this isn’t part of the job,” to which she replied, “It’s not like I’m
stopping you.” Steele claimed that he then put his hand around
her backside and started to remove her shorts, the two stripped
naked and closed the curtains together, and then Emma pushed
Steele onto the bed. She eventually got on top of Steele and the
two had intercourse while Emma told Steele where and how to
touch her. Steele’s version of the sexual encounter concluded by
Emma performing oral sex on him.
¶9 Steele continued to offer more details about what he
alleged occurred after that, claiming Emma caressed his face
while the two cuddled. And when Steele told her that he “didn’t
feel like maybe he had performed up to his level because it had
been so long since he’d been with a woman,” Emma supposedly
assured him “that it was going to be okay [and] that they would
work on it together for the next 28 days.” According to Steele, the
two were “happy” and joked around, and they eventually agreed
they would not tell their wives about anything that happened in
the truck. The two also agreed to shower and return to the truck
to begin what Steele apparently believed was going to be twenty-
eight days of non-stop consensual sex with his trainee. When the
officer asked Steele why, if any of that had occurred, Emma would
fabricate a rape accusation, Steele speculated that maybe she “was
worried that her wife had found out.” Police arrested Steele, and
the State charged him with rape and forcible sodomy.
Rule 412 Motion and Pretrial Objections
¶10 In later investigations, Steele claimed that Emma had told
him she was bisexual and had not been “with a man” for several
years. In response, the State filed a motion in limine (the rule 412
motion) to preclude any references to these statements at trial
20190441-CA 5 2021 UT App 39State v. Steele
under rule 412 of the Utah Rules of Evidence—which provides
that, absent a specific exception, “evidence offered to prove that a
victim engaged in other sexual behavior . . . [or] to prove a victim’s
sexual predisposition” is “not admissible.” Utah R. Evid. 412(a).
¶11 Steele’s trial attorneys (Counsel) 4 filed a response in which
they stipulated that Steele “ha[d] no objection to the State’s
motion to exclude statements that [Emma] made” that “she was
bisexual” and that “she had not been ‘with a man’ for a number
of years.” But Counsel would not “agree to a blanket exclusion of
all possible future 412 evidence” and specifically “reserve[ed] the
right to file a motion to include 412 evidence in trial should any
evidence arise from” results of ongoing physical evidence tests.
¶12 The court held a hearing a few weeks before the trial to
discuss several outstanding motions. 5 Regarding the rule 412
motion, the court stated its understanding of the stipulation was
“that really [Counsel] just said they wanted to keep some options
open, but other than that they were not contesting the specific”
statements referenced in the motion. Counsel agreed and
explained that they would “only be bringing up 412 information
if it’s opened by the alleged victim in the case, if she starts
4. Two defense attorneys represented Steele at trial. We refer to
them collectively as “Counsel” and use the pronoun “they” for
ease of reading.
5. The most pressing matter appears to have been Steele’s
objections, pursuant to rule 404(b) of the Utah Rules of Evidence,
to the State presenting testimony from two witnesses who
claimed that Steele had also sexually assaulted them. The State
argued that these instances were highly probative of Steele’s
intent, asserting that “he set our victim up the exact same way that
he set up these other women to be assaulted” by “purposely
isolat[ing]” and threatening her. Counsel successfully prevented
the State from introducing this evidence at trial.
20190441-CA 6 2021 UT App 39State v. Steele
mentioning her sexuality or why she wouldn’t engage in sexual
acts with a man or things like that.”
¶13 Just before jury selection, the court and the attorneys
engaged in “a lengthy conversation about what the parties had
stipulated to, how the parties would present their cases, and what
evidence should come in.” Among many other things, Counsel
indicated that they believed the State would call Wife as a witness
to “bring up that . . . the alleged victim, is a lesbian, is married to
a woman.” And when the State responded that it did not intend
to “ask [Wife] about their sexual activity,” Counsel maintained
that calling Wife and introducing the fact that she was married to
Emma would, nevertheless, suggest to the jury that Emma was a
lesbian, and would thus “open the door” for Steele to introduce
evidence that Emma was bisexual. Counsel made numerous
arguments in support of this contention, including, for example:
I think the prejudice weighs greatly on my client
that he would be sleeping with a self-proclaimed
lesbian, if she—and make him seem more of an
aggressive person if the truth did not come out that
she also sleeps with men.
...
Well, Your Honor, I think it’s actually prejudicial to
my client and does not allow for a fair trial if the
alleged victim says she is a lesbian and will not sleep
with men, and my client is an older man in a
position of power and is able to have sexual
intercourse that he says is consensual with a lesbian,
I think the jury is going to be more inclined to
believe her because she has a specific sexual
orientation. If she’s bisexual, I think it’s more fair to
my client. She mentioned that to him. She
mentioned that to the officers. That shows that it
could be a consensual activity. I think that’s
20190441-CA 7 2021 UT App 39State v. Steele
important if they are going to bring up her sexual
orientation that would exclude that possibility of
consensual sex.
...
You have someone who has a specific sexual
orientation, and for them to engage with somebody
else, that already shifts—casts suspicion on my
client. It casts doubt that she would ever engage in
that consensually.
¶14 Counsel also asserted that they understood the stipulation
to the rule 412 motion was that neither side would introduce any
evidence of Emma’s sexual orientation, and thus they argued that
the State would be violating the stipulation by introducing
evidence of Emma’s marriage. In other words, Counsel
interpreted the stipulation as being an “all encompassing”
“protection of [Emma’s] sexual orientation. So, there wouldn’t be
any mentioning of her sexual orientation” at all. Counsel thus
clarified that their argument was “on two fronts. One, . . . [Emma’s
marriage] opens the door. And, secondly, we have a stipulation
that [Emma’s marriage] would not come in.”
¶15 The court “overruled” Counsel’s first argument on the
merits, explaining that merely calling Wife as a witness and
introducing her as Emma’s wife would not open the door to
introducing evidence of Emma’s sexuality. Specifically, the court
ruled:
The objection will be overruled as far as the 412. I
surely—if she gets up and says something to the
effect that I would never sleep with a man, that may
very well open the door and we’ll address it
differently. But as far as just the fact that she’s
married to a woman, that in and of itself, seems to
me not to open the door to anything.
20190441-CA 8 2021 UT App 39State v. Steele
¶16 But the court expressed “concern” about the “idea that
there was a stipulation.” Although the court “thought the
stipulation was . . . generally about the statements about having
been with a man,” it invited more arguments from the attorneys
about the stipulation’s contours. The State asserted that the
“agreement with the [d]efense ha[d] not changed at all” because
it intended to call Wife only as a “witness, factually, in this case”
and was “not going to talk about their sexual activity or previous
sexual activity.” The State noted that “if the [c]ourt is concerned
in any way,” Wife could be referred to as an acquaintance rather
than as Emma’s spouse. Counsel, on the other hand, reiterated
that the stipulation was all-encompassing, and specifically stated:
Your Honor, I don’t think there’s a way that the
State could put on [Wife] without showing that she
is the spouse of [Emma].
¶17 After hearing these arguments, the court asked the State to
specifically explain the relevance of Wife’s testimony. When the
State answered that Wife would be testifying to “her observations
of [Emma],” the court followed up by asking, “[A]nd why does
that matter?” When the State explained that Wife would testify as
to Emma’s emotional state both before and after the incident, as
well as testifying to Wife’s own observations of Emma on the day
of the incident, the court again followed up, asking, “[M]eaning
what?” The State answered that Emma was still “afraid to be
alone” and “has been very much affected by” the incident.
Counsel responded to these explanations by asking for Wife to be
prevented from testifying altogether:
Your Honor, I believe all of these statements would
be hearsay, these statements could come through
[Emma]. We have other witnesses that are at [the
Company’s headquarters] from this event [when]
the sexual encounter occurred. And they can testify
to their observations of [Emma]. She immediately
20190441-CA 9 2021 UT App 39State v. Steele
speaks to officers, to HR, to the [sexual assault nurse
examiner]. I don’t—a lot of the statements would
just be hearsay. And they are not necessary for the
elements charged. So I would ask to strike this
witness.
(Emphasis added.)
¶18 The court immediately issued a ruling, striking a balance
by declining to prevent Wife from testifying altogether, but—
consistent with Counsel’s representations of the scope of the rule
412 stipulation—not allowing Wife to be introduced as Emma’s
spouse and instead requiring that she “testify as an acquaintance,
even a close acquaintance.” In other relevant part, the court
explained:
I will grant the motion as far as admitting any
evidence of sexual orientation. Frankly, I usually
would not. Whether someone is married to the
person of the same gender seems to be not relevant
for the most part. I am concerned that [Counsel’s]
understanding was that it would not be admitted at
all. And because of that misunderstanding, I’m
going to hold the State to what was the claimed
agreement. . . . I will accept [Counsel’s]
representation that [they] understood that to be the
agreement that sexual orientation would not be
admitted at all.
As far as the witness itself, it seems to me that the
witness can testify about exactly what [the State] is
saying, and that is that she dropped her off; that her
appearance, demeanor when she was dropped off to
the trucking company, the fact that she called and
reported whatever—although those statements are
hearsay and the foundation for those statements
need[s] to be established before they can come in,
20190441-CA 10 2021 UT App 39State v. Steele
but the very—But I’m just ruling on the objection, and
that is that because they come from the person that is her
spouse, that they would be objectionable on that ground,
and I will overrule that. . . . Again, I’m just ruling on the
witnesses testifying, not whether or not the
underlying evidence is otherwise objectionable as
hearsay, or for whatever—whatever other reason.
(Emphasis added.)
¶19 Counsel responded that they “still [had] a problem with
that” because allowing Wife to testify as a close acquaintance was
“just hiding [the issue] and confusing the jury.” Specifically,
Counsel explained their “fear” that the jury would hear the
evidence, including Wife’s continual factual involvement in the
case, and “put the dots together” that Wife was indeed married to
Emma. Counsel also indicated that they were concerned that Wife
would be able to testify and corroborate Emma’s testimony, yet
Counsel could not impeach her on the fact that the two were
married, which “automatically goes to the credibility and the
potential for lying.”
¶20 The court responded, “Well, so you tell me which way you
want this because you can’t have it both. Either she is—she
testifies, but doesn’t say she’s a spouse, or that she says she’s a
spouse.” Counsel asked for some time to contemplate how to
handle Wife’s testimony and proposed that the issue be
postponed until Wife was set to testify. The court asked how, if
the issue were put off until then, the parties would deal with
referring to Wife during opening arguments. As the parties
discussed how this would work, such as by referring to Wife
generically as “a witness,” the court suddenly interjected with the
following:
Let me help you out. This is going to be far too
confusing. The objection to her sexual orientation
will be overruled. You can bring [her in] as a spouse
20190441-CA 11 2021 UT App 39State v. Steele
and testify to that. She will not testify about whether
or not—evidence of her being bisexual or whether
or not she was with a man. . . . I will, of course, allow
if there is a door that has been opened during the
proceeding, then we’ll rule otherwise.
The Trial
¶21 Steele’s defense did not preclude the possibility that Emma
consented to having sex with him because she was “carried away
in the moment,” but Counsel also advanced a specific theory that
Steele was essentially collateral damage in a scheme Emma and
Wife devised before the long-haul trip. This theory relied on the
fact that the Company’s program included “a nine-month
noncompete contract, as well as a $5,000 tuition payment,” both
of which Emma “g[ot] out of” in exchange for agreeing not to sue
the Company. This theory thus offered an explanation as to why,
if the version of events Steele relayed to police were true, Emma
would immediately claim she had been raped.
¶22 Wife testified consistently with the court’s final ruling
regarding her testimony: she was introduced as Emma’s spouse
and testified about her observations of Emma before, on the day
of, and after the incident. Counsel asked Wife several questions
about her potential personal and financial motives to aid in
fabricating the rape and then suggested that Wife did fabricate
what had occurred, after the fact, when she “compared notes”
with Emma and thus ordered the events to fit their narrative.
¶23 After hearing the evidence, the jury convicted Steele of
rape and forcible sodomy. The parties concede on appeal that
neither the State nor any witness stated that Emma would not
have consented to sexual intercourse with Steele because she
would not consent to having sex with a man. As a result, the
evidence regarding Emma’s alleged bisexuality was never
introduced at trial. Steele now appeals.
20190441-CA 12 2021 UT App 39State v. Steele
ISSUES AND STANDARD OF REVIEW
¶24 Steele contends that Counsel provided ineffective
assistance based on numerous alleged failures in handling the
evidence of Emma’s sexual orientation. He contends that Counsel
was ineffective for: (1) stipulating to the rule 412 motion without
a purportedly necessary caveat; (2) failing to argue that evidence
of Emma’s marriage should have been excluded under rule 403 of
the Utah Rules of Evidence; and (3) objecting to the court’s
“favorable ruling” that required Wife to be referred to as an
acquaintance. Each claim “presents a question of law,” having all
been “raised for the first time on appeal.” State v. Cruz, 2020 UT
App 157, ¶ 15, 478 P.3d 631 (cleaned up).
ANALYSIS
¶25 To prevail on any of his claims, Steele must show that
Counsel’s “performance was deficient” and that “the deficient
performance prejudiced the defense.” State v. Scott, 2020 UT 13,
¶ 28, 462 P.3d 350 (cleaned up). Steele’s “inability to establish
either element defeats a claim for ineffective assistance of
counsel.” State v. Cruz, 2020 UT App 157, ¶ 17, 478 P.3d 631(cleaned up).
¶26 To show that Counsel’s performance was deficient, Steele
must demonstrate that their acts or omissions “fell below an
objective standard of reasonableness.” Scott, 2020 UT 13, ¶ 28
(cleaned up). So, if it appears that Counsel’s chosen course of
conduct “could have been intended to further a reasonable
strategy,” Steele cannot show deficient performance. State v. Ray,
2020 UT 12, ¶ 34, 469 P.3d 871. But even if a reasonable strategy
cannot be discerned, Steele must still demonstrate that Counsel’s
acts or omissions were objectively unreasonable in light of the
relevant contextual circumstances. See id. ¶ 36.
20190441-CA 13 2021 UT App 39State v. Steele
¶27 To show that Counsel’s acts or omissions were prejudicial,
Steele must “demonstrate a reasonable probability that the
outcome of his . . . case would have been different absent
[Counsel’s] error.” Scott, 2020 UT 13, ¶ 43. And by “reasonable
probability,” we mean “a probability sufficient to undermine
confidence in the outcome.” Id. (cleaned up).
I. Stipulation to the Rule 412 Motion
¶28 Steele first contends that Counsel provided ineffective
assistance by stipulating to the rule 412 motion without including
a caveat that, if the State first offered evidence of her sexuality,
then he could introduce evidence of Emma’s bisexuality under
rule 412(b)(3) of the Utah Rules of Evidence. See Utah R. Evid.
412(b)(3) (providing an exception to the general rule barring
evidence offered to prove a victim’s sexual predisposition if
exclusion of the evidence “would violate the defendant’s
constitutional rights”). In other words, Steele concedes that
evidence of Emma’s bisexuality presumptively fell within rule
412(a)’s general exclusion, but he asserts that the evidence should
have been admitted under rule 412(b)(3) to “rebut the
presumption of nonconsent” raised by admitting evidence that
Emma was married to a woman. Steele thus asserts the evidence
would have been admitted under rule 412(b)(3) if Counsel had
included this caveat in the stipulation to the rule 412 motion.
¶29 Even if we assume Counsel was constitutionally required
to include a rule 412(b)(3) caveat in the stipulation to the rule 412
motion, Steele has failed to demonstrate that this omission
resulted in prejudice. Steele’s argument amounts to asserting that,
but for Counsel’s failure to include a rule 412(b)(3) caveat,
evidence of Emma’s bisexuality would have been admitted to
confront the evidence that Emma was married to a woman and
the inference therefrom that she would not have consented to sex
with a man. But Steele ignores the fact that the court heard his rule
412(b)(3) argument during the pretrial discussion and rejected it
20190441-CA 14 2021 UT App 39State v. Steele
on its merits. Specifically, the court opined that rule 412(b)(3)
likely would be implicated if there was any argument at trial that
Emma would not have consented to having sex with a man,
stating that it would “rule otherwise” if something to that effect
happened during trial. But the court ultimately ruled that the
mere fact that Emma was married to a woman was “not relevant”
and did not “open the door to anything” under rule 412(b)(3). See
supra ¶¶ 15, 18, 20. In other words, the court did not rule that
evidence of Emma’s bisexuality could not come in because Counsel
did not include a rule 412(b)(3) caveat in its stipulation, but
instead ruled that the evidence simply did not satisfy rule
412(b)(3)’s “high bar,” see State v. Thornton, 2017 UT 9, ¶ 77, 391
P.3d 1016, and Steele has not challenged this ruling on appeal.
Steele thus cannot show prejudice, because the court’s ruling on
the merits belies any “reasonable probability” that it would have
received the evidence if Counsel included a rule 412(b)(3) caveat
in the stipulation. See State v. Edgar, 2017 UT App 54, ¶ 17, 397
P.3d 656 (explaining that the defendant could not demonstrate
prejudice from counsel’s failure to raise an objection because he
failed to show “a reasonable probability” that the objection would
have been sustained). Accordingly, we reject Steele’s first
ineffective assistance claim.
II. Rule 403
¶30 Steele next contends that Counsel performed deficiently by
not “specifically” arguing that evidence of Emma’s marriage
should have been excluded 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 . . . .”). He argues that the evidence
would have been excluded under rule 403 because any “negligible
probative value” was outweighed by its “unduly prejudicial”
nature, inasmuch as the case centered on consent and “the jury
hearing that [Emma] was married to a woman made it much less
likely that she would consent to hav[ing] sex with a man.”
20190441-CA 15 2021 UT App 39State v. Steele
¶31 But on the record, it is apparent that Counsel did
substantively object under rule 403 to admitting evidence of
Emma’s marriage. As to the danger of unfair prejudice, Counsel
repeatedly argued that the evidence was prejudicial in the exact
terms Steele argues on appeal—indeed, Steele goes so far as to
explain why the evidence was unfairly prejudicial by directly
quoting arguments Counsel made to the district court. See supra
¶ 13. Counsel also argued that the probative value of Wife’s
testimony was so low that the court should exclude her from
testifying altogether because her testimony would largely be
hearsay, the permissible content of her testimony could come
through other witnesses, and her testimony was “not necessary
for the elements charged.” See supra ¶ 17.
¶32 And the court appears to have substantively engaged in
the requisite rule 403 balancing. It asked several pointed questions
about the probative value of Wife’s testimony—for example,
asking for clarification about why her testimony “matter[ed].” See
supra ¶ 17. The court later resolved that Wife’s testimony had
enough probative value to allow her to testify and accordingly
denied Counsel’s request that she be stricken as a witness. See
supra ¶ 18. And this came in the same ruling in which the court
attempted to mitigate the danger of unfair prejudice of Wife’s
testimony—albeit couching it in terms of Counsel’s
understanding of the scope of the rule 412 stipulation—by
requiring that she be introduced only as Emma’s “acquaintance,”
not as her spouse. See State v. Wright, 2021 UT App 7, ¶ 43, 481
P.3d 479 (“[O]n the record before us . . . we can determine that the
district court evaluated the relevant . . . factors and thus
substantively made a rule 403 inquiry, even if it never explicitly
invoked the rule.”). Notably, this is the exact “favorable” result
that Steele argues a rule 403 motion would have accomplished.
¶33 Steele’s contention thus really amounts to claiming that
Counsel performed deficiently by never specifically uttering the
magic words, “rule 403.” But Steele directs us to no authority
20190441-CA 16 2021 UT App 39State v. Steele
which stands for such a sweeping proposition, nor are we
prepared to say that Counsel’s failure to explicitly invoke rule 403
by numeric designation was deficient here. Cf. Salt Lake City v.
Josephson, 2019 UT 6, ¶ 12 n.12, 435 P.3d 255 (clarifying that
counsel “did not need to utter the ‘magic words’ of ‘single
criminal episode statute’ to properly preserve the issue”). At the
very least, Counsel could reasonable have determined that their
substantive rule 403 arguments sufficiently brought the issue to
the court’s attention. See Mitchell v. State, 838 S.E.2d 847, 852 (Ga.
2020) (“Trial counsel was not required to use the specific phrase
‘improper expert testimony’ . . . to lodge a specific objection on
that ground.”). This is especially true given that the court
appeared to have undertaken the requisite rule 403 balancing and
issued the precise ruling that Steele contends such a motion
would have achieved—and as before, Steele does not challenge
the court’s ruling on appeal. See id. (explaining that the defendant
“cannot establish that his trial counsel was deficient” for not
objecting on verbally specific grounds, when trial counsel did
substantively object on those grounds and obtained a ruling from
the trial court (cleaned up)). Accordingly, we reject Steele’s
second ineffective assistance claim.
III. Subsequent Objection
¶34 Steele finally contends that Counsel provided ineffective
assistance by objecting to the court’s ruling that Wife could testify,
but only as Emma’s “close acquaintance.” See supra ¶ 18. Steele
asserts that Counsel had no reasonable basis for objecting to “a
favorable ruling from the court excluding the prejudicial
evidence,” and that Counsel’s objection “resulted in the court
admitting the evidence that [Emma] was married to a woman.”
¶35 In arguing why Counsel had “no reasonable basis” for
objecting to the court’s ruling, Steele posits that Counsel objected
either (1) “in an effort to get the court to admit evidence of
[Emma’s] bisexuality” or (2) because Counsel actually “wanted
20190441-CA 17 2021 UT App 39State v. Steele
the jury to know Wife was married to [Emma]” so that Wife’s
testimony could be impeached for bias. As to the first option,
Steele asserts that it would be unreasonable to object to the ruling
with “the hope of admitting evidence of bisexuality,” because any
objection was likely to be futile “in light of the law” and the
stipulation to the rule 412 motion. And as to the second, Steele
asserts that it would be an unreasonable trade-off to tell the jury
that Emma was married to a woman just so that Counsel could
impeach Wife’s testimony for bias, given that the “question at trial
was consent, and Wife’s credibility had minimal bearing on the
question of [Emma’s] consent.”
¶36 As an initial matter, we think it is apparent that Counsel
objected to the court’s ruling for a reason entirely different from
Steele’s binary suppositions: Counsel wanted Wife to be excluded
from testifying altogether. See supra ¶¶ 16–17, 19. Indeed, this is
the relief that Counsel unequivocally requested immediately
before the court announced the ruling at issue. See supra ¶ 17. It
seems clear that this is why Counsel framed that ruling as an
inadequate half-measure—asserting that the jury would deduce
that Wife was married to Emma but that the court’s ruling
nevertheless would prevent Counsel from impeaching Wife’s
credibility on that basis. See supra ¶ 19. And we cannot find that it
was objectively unreasonable for Counsel to harbor concerns that
the jury would deduce that Wife was married to Emma and to
accordingly act on those concerns by requesting Wife’s total
exclusion as a witness. In other words, it was not objectively
unreasonable for Counsel to object to obtain an even more
favorable ruling for Steele. See Strickland v. Washington, 466 U.S.
668, 690 (1984) (“[T]he court should keep in mind that counsel’s
function, as elaborated in prevailing professional norms, is to
make the adversarial testing process work in the particular case.”
(emphasis added)).
¶37 But even if Counsel objected for one of the reasons Steele
suggests, he would still fail to show deficient performance. See
20190441-CA 18 2021 UT App 39State v. Steele
State v. Gallegos, 2020 UT 19, ¶ 47, 463 P.3d 641 (“[C]ounsel’s
subjective understanding is not the standard by which her actions
are judged.”). Steele’s arguments amount to asserting that
Counsel lacked a valid strategic reason in objecting to the court’s
ruling, but this, by itself, is insufficient to show that Counsel’s
decision was objectively unreasonable. See State v. Ray, 2020 UT
12, ¶ 34, 469 P.3d 871 (“Even if an omission is inadvertent and not
due to a purposeful strategy, relief is not automatic.” (cleaned
up)). Under these circumstances, Steele must show that it was
objectively unreasonable for Counsel to fail to anticipate the result
complained of: the court eventually doing an about-face on its
initial ruling by deciding to admit evidence of Emma’s marriage.
See Gallegos, 2020 UT 19, ¶ 36 (“[T]he question . . . is not whether
some strategy other than the one that counsel employed looks
superior given the actual results of trial. It is whether a reasonable,
competent lawyer could have chosen the strategy that was
employed in the real-time context of trial.” (cleaned up)); State v.
Popp, 2019 UT App 173, ¶ 26, 453 P.3d 657 (“We judge the
reasonableness of counsel’s actions on the facts of the particular
case, viewed as of the time of counsel’s conduct . . . .” (cleaned
up)). Steele’s briefs are completely silent on this issue, so he fails
to demonstrate deficient performance for this reason alone. We
thus reject Steele’s final ineffective assistance claim.
IV. Prejudice
¶38 Finally, even if Steele were able to demonstrate that
Counsel performed deficiently with respect to any of the
foregoing acts or omissions, Steele has still failed to “demonstrate
a reasonable probability that the outcome of his . . . case would
have been different absent [Counsel’s] error[s].” State v. Scott, 2020
UT 13, ¶ 43, 462 P.3d 350. Steele premises each argument on the
same notion: if evidence of Emma’s sexual orientation had been
presented to the jury differently, a reasonable probability exists
that the jury would have acquitted him because it would have
20190441-CA 19 2021 UT App 39State v. Steele
been more inclined to believe that Emma would consent to having
sex with a man.
¶39 We are sensitive to the fact that sexual orientation may
indeed be used to “impl[y] the impossibility of consent,” State v.
Nunez-Vasquez, 2020 UT App 98, ¶ 40 n.6, 468 P.3d 585 (cleaned
up), and undermine our confidence in the verdict as a result. But
this is not such a case. Regardless of Emma’s sexual orientation,
the story Steele relayed to police was unbelievable on its face:
Emma enthusiastically initiating sex within thirty minutes of
meeting him and then cuddling with him while expressing her
excitement about having sex for the duration of the trip, followed
by Emma fleeing the truck in a panic and asking for help while
“[t]remendously [in] tears,” and answering in the affirmative
when others asked her if she had been raped. Given the extreme
shift between what Steele claims happened in the truck and the
undisputed evidence of what happened as soon as Emma stepped
outside of it, there is no reasonable probability that the jury would
have acquitted Steele of the charges even if evidence of Emma’s
bisexuality had been admitted, or if Wife had testified only as an
acquaintance. 6
¶40 Moreover, Steele advanced a theory at trial that rendered
Emma’s sexual orientation irrelevant: the idea that Emma and
6. We do not mean to imply that the timing of Emma’s reporting
or how upset she appeared immediately following the sexual
assault renders her version of the events more or less credible.
Indeed, we have recognized “the reality that rape victims display
a diverse range of reactions to the harm they suffered.” State v. Jok,
2019 UT App 138, ¶ 24, 449 P.3d 610, cert. granted, 456 P.3d 386(Utah 2019). Instead, we are focusing on the sharp contrast
between Steele’s narrative of instant attraction with a stated intent
to repeat the encounter and Emma’s distraught appearance as
observed by third parties coupled with an immediate claim of
rape.
20190441-CA 20 2021 UT App 39State v. Steele
Wife planned what happened to avoid the $5,000 tuition payment
and non-compete clause, which the jury also rejected. Given the
incredibility of Steele’s version of events, it is understandable why
Counsel emphasized this theory. The idea that Steele was duped
into having sex with Emma as part of her larger plan to defraud
the Company at least offered some explanation for the extreme
conflict between what Steele claims happened in the truck and
what happened after Emma fled. So, for this additional reason, we
do not find a reasonable probability that—had Counsel done
everything Steele asserts they should have—the result of the trial
would have been different.
CONCLUSION
¶41 Steele did not receive ineffective assistance of counsel.
Therefore, we affirm.
20190441-CA 21 2021 UT App 39