State v. Miller

2023 UT App 85THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ZACHARY SOL MILLER,
Appellant.
Opinion
No. 20220059-CA
Filed August 3, 2023
First District Court, Logan Department
The Honorable Brandon J. Maynard
The Honorable Spencer D. Walsh
No. 201100024
Benjamin Miller and Debra M. Nelson,
Attorneys for Appellant
Sean D. Reyes and Christopher A. Bates,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and AMY J. OLIVER
concurred.
ORME, Judge:
¶1 Zachary Sol Miller appeals his conviction of object rape, a
first-degree felony. He argues that his defense counsel (Counsel)
was constitutionally ineffective in two respects, and he seeks
remand under rule 23B of the Utah Rules of Appellate Procedure
to supplement the record with facts to support a third claim of
ineffective assistance of counsel. He additionally argues that the
trial court erroneously admitted hearsay testimony under the
medical-diagnosis-or-treatment hearsay exception set forth in
rule 803(4) of the Utah Rules of Evidence. We affirm his conviction
and deny his rule 23B motion.
State v. Miller
BACKGROUND 1
The Assault
¶2 Miller and Colleen 2 were friends who frequently socialized
as part of a larger friend group. On one such occasion in March
2019, the group, including Miller and Colleen, went to a party at
a friend’s house. Around 1:00 a.m., Colleen and a female friend
(Friend 1) returned to Colleen’s house and continued to socialize.
Shortly thereafter, Miller and one of his male friends (Friend 2)
also arrived at her house, soon followed by Friend 1’s boyfriend.
“It was normal” for Miller and others to meet at Colleen’s house
following an event “to continue hanging out.” On such occasions,
it was also common for Colleen and some friends to sleep on
Colleen’s bed in a “[s]trictly platonic” manner. Miller had
previously slept with Colleen in her bed “a couple of times,” but
such episodes were “[n]ever” sexual in nature.
¶3 At one point during the night in question, Friend 2 left the
gathering, leaving Colleen, Miller, Friend 1, and Friend 1’s
boyfriend in the home. Then, shortly after 3:15 a.m., Colleen, who
by then was “[e]xtremely tired,” announced that she was going to
bed and said her goodbyes. She told the group that she had plans
to meet with her girlfriend later that day to celebrate her
girlfriend’s birthday and that she intended to take medication to
help ensure she got enough sleep. Colleen then took Advil PM
1. “On appeal from a jury verdict, we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly, presenting conflicting evidence only as necessary to
understand issues raised on appeal.” State v. Rogers, 2020 UT App
78, n.2, 467 P.3d 880 (quotation simplified), cert. denied, 470 P.3d
445 (Utah 2020).
2. A pseudonym.
20220059-CA 2 2023 UT App 85State v. Miller
and went to bed. She had also consumed approximately five
alcoholic drinks that night.
¶4 At trial, Colleen testified that she went to sleep wearing “a
pair of running shorts and then a T-shirt on top.” Miller, Friend 1,
and Friend 1’s boyfriend remained in the kitchen after Colleen
retired to her bedroom. The three “hung out” for a while longer
until Friend 1 and her boyfriend decided to head home. Friend 1
offered to drive Miller home, but he declined, stating that he
would walk.
¶5 Around 4:30 a.m., Colleen, who was sleeping on her side
and facing the wall her bed was pushed against, was awakened
by a “sensation in [her] genital area.” Colleen soon realized that
Miller had joined her in bed. He had laid down behind her and
removed her shirt. He then partially pulled down her shorts,
reached “up between” her legs, and inserted his fingers into her
vagina. Miller did not remove his fingers for “a span of minutes.”
Colleen, who was “[c]ompletely groggy,” pretended to fall back
asleep in hopes that it would end the assault.
¶6 At trial, Colleen additionally testified that Miller then
pulled her onto her back, completely removed her shorts, and put
his mouth on her vagina. Colleen stated that she resisted by
repeating “no” and “nuh-uh” and by placing her feet on his
shoulders and trying to push and kick him away with “[q]uite a
bit of force.” She testified that while holding her down by her
arms with enough force to leave marks, Miller then sucked on,
kissed, and bit her neck and lips and forced her to touch his penis
with her hand. She also stated that he tried to insert his penis into
her vagina, but she was able to prevent this by covering her
vagina with her hand. 3
3. The jury did not convict Miller on the charges arising from this
additional alleged conduct.
20220059-CA 3 2023 UT App 85State v. Miller
¶7 When the assault came to an end, Colleen immediately
went to the bathroom, where she remained for some time. There,
she discovered red marks on one of her arms and discoloration on
her neck, of which she then took pictures. Sometime between 6:00
a.m. and 7:00 a.m., Colleen, who was feeling distraught, hurt, and
angry, texted her girlfriend and another friend. Colleen told the
other friend that “something had happened” and that she
“needed her.”
¶8 When Colleen returned to her bedroom, she found Miller
asleep in her bed. She woke him up and told him that he needed
to leave. Because she was “in shock” and “freaking out,” Colleen
decided to drive Miller home so that she could be sure he was no
longer in her house. During the drive, Miller acted as if nothing
had happened and even asked whether they were still meeting for
brunch later that day. Colleen did not respond to this question.
¶9 After dropping Miller off, Colleen returned home and
remained there for an hour before her girlfriend arrived, soon
followed by the other friend she had texted earlier that morning.
The friend then took Colleen to the hospital, where she was
examined by a sexual assault nurse examiner (Nurse). Colleen
testified at trial that she wore “a black long-sleeved Van’s shirt
and then a pair of jeans” to the exam. Following the exam, the
emergency room physician and Nurse recommended
“medications for sexually transmitted infection prevention, and
pregnancy prevention,” which were provided to Colleen. Colleen
did not wish to speak to the police officers who responded to the
hospital, and the case became inactive.
¶10 A little over three months later, in June 2019, Colleen
reported the sexual assault to law enforcement. At trial, she
explained that she was initially hesitant to do so because she was
a “low-key” and private person, because she and Miller had many
mutual friends and she was worried that reporting his sexual
assault would negatively affect those friendships, and because she
wished to avoid the “stigma that comes with” reporting sexual
20220059-CA 4 2023 UT App 85State v. Miller
assault. Although she felt relieved when she finally reported
Miller to the police, she testified that as a result of the assault, she
was diagnosed with “PTSD, anxiety, and depression.”
The Trial
¶11 The State charged Miller with object rape, forcible sodomy,
and forcible sexual abuse. The case then proceeded to a two-day
jury trial in November 2021. As part of its case-in-chief, the State
called Colleen, Friend 1, and Nurse to testify. Colleen’s testimony
was largely as recounted above. She also testified that at the time
of the assault, she and her girlfriend had been dating for “[a]bout
two months” but that “there was never any title or any agreement
to be exclusive.” Despite this, Colleen testified that for moral
reasons, she never would have willingly had sexual relations with
anyone else. She also stated that although her girlfriend likely
“would have been hurt,” “there wouldn’t really be any
repercussions” if she had engaged in sexual relations with
another because the two were not exclusive. And when asked on
cross-examination why, under “describe patient’s dress during
assault” on Nurse’s form, Nurse had written that Colleen was
wearing jeans and a T-shirt during the assault, Colleen stated that
she did not recall saying that but that she had worn jeans and a
T-shirt to the medical exam.
¶12 Friend 1 testified that on the night in question, she, her
boyfriend, Miller, and Friend 2 all went to Colleen’s house, where
everyone except her boyfriend “had a few drinks.” She stated that
when Colleen decided to go to sleep, Colleen told everyone that
she “had a long day the next day” and “that she was going to take
a sleeping pill,” but Friend 1 did not witness her actually take any
medication. Friend 1 also said that she, her boyfriend, and Miller
socialized for a bit longer and that Miller had declined her offer to
give him a ride home when she and her boyfriend decided to
leave. She also stated that before leaving, she looked into
Colleen’s room and saw that Colleen was asleep.
20220059-CA 5 2023 UT App 85State v. Miller
¶13 Nurse testified concerning her examination of Colleen. She
explained the steps she undertakes in a sexual assault
examination, which include obtaining the patient’s medical
history, asking a set of standardized questions concerning the
sexual assault, and conducting a comprehensive physical
examination of the patient. Nurse then proceeded to testify
concerning her examination of Colleen. When the State asked
Nurse to recount the verbal history she obtained from Colleen,
Counsel objected on hearsay grounds. The State responded that
the testimony was admissible under rule 803(4) of the Utah Rules
of Evidence as a “statement made for medical diagnosis or
treatment.” The trial court overruled Counsel’s objection and
additionally noted that, had the objection been sustained, Counsel
would likewise be precluded from asking Nurse about Colleen’s
statement to her that she had been wearing jeans at the time of the
assault.
¶14 Nurse then testified that Colleen told her that she “had
some friends over for a get-together and there had been some
alcohol and [she] started not to feel well, so she stated that she
took an Advil PM and went to bed.” Colleen then told her that
“she woke up laying in bed with [Miller] behind her and he was,
in her words, ‘fingering her.’” Nurse further testified that Colleen
told her “that she had said no, and it continued” and that later
“he, in her words, ‘went down on her,’” and she pushed him
away. Colleen told her “that at that point her pants and
underwear came off and he attempted to penetrate her, but again,
she pushed him away.” Colleen told Nurse that, following the
assault, she “got up and went to the bathroom.”
¶15 Nurse next testified concerning Colleen’s answers to the
standardized questions Nurse asked her, which answers Nurse
recorded, to the best of her ability, “verbatim.” This included
Colleen’s answers in the affirmative to the questions of whether
Miller’s “penis or genitals contacted her genitals,” whether his
“mouth contacted her genitalia,” whether his “mouth contacted
her breasts,” whether his “mouth contacted her mouth,” whether
20220059-CA 6 2023 UT App 85State v. Miller
his “hands contacted her genitals,” and whether his “hands
contacted her breasts.” When asked whether Miller’s “mouth
contacted any other area of her body,” Colleen responded “‘yes’
he contacted her neck.” In response to whether she had “used
drugs or alcohol before . . . the assault,” Colleen indicated “that
she had had vodka that night, and she took Advil PM before she
went to bed,” but she was unwilling to provide blood or urine
samples. Nurse also wrote down that when asked to “describe
[her] dress during assault,” Colleen responded “jeans” and “a
white T-shirt.”
¶16 Nurse next described her physical examination of Colleen.
She indicated that Colleen “had multiple bruises” on her neck that
appeared to be hickeys. Nurse testified that other than the bruises
on Colleen’s neck, “every other part of her body appeared to be
normal,” and she observed no marks on Colleen’s arms. The State
also submitted into evidence photographs Nurse took of the
bruises.
¶17 Miller called three of his friends to testify in his defense.
Friend 2 testified regarding the gathering at Colleen’s house on
the night of the assault. He stated that although Miller and
Colleen were “quite friendly that night” and “seemed very
comfortable” with each other, there was not “anything of a sexual
nature” between them. Friend 2 further recounted that when he
left Colleen’s house, he went to Miller’s house and fell asleep.
When he woke up a few hours later, Miller and a friend (Friend 3)
were just arriving home in the morning. Friend 2 testified that he
noticed “multiple” hickeys on both sides of Miller’s neck and,
because Miller was “not usually the type to kiss and tell,” he “took
the chance to make fun of him like any guy would,” which Miller
“just shrugged . . . off.” When asked by Counsel whether he had
observed the hickeys on Miller’s neck the night before, Friend 2
responded, “No.”
¶18 Another of Miller’s friends similarly testified that
“sometime in March of 2019,” he observed “quite a few hickeys
20220059-CA 7 2023 UT App 85State v. Miller
along [Miller’s] neck on both sides.” The friend similarly joked
that “it looked like someone had a fun night,” which Miller also
responded to by “shrugg[ing] it off.”
¶19 Friend 3 testified that on the morning following the assault,
Miller called him sounding “very upset” and asked whether “he
could come over and speak to my wife and I.” Miller arrived at
Friend 3’s house “very, very upset” and “in tears.” He pointed to
“somewhere between three to five” “very noticeable” bruises on
his neck and asked what they looked like. When Friend 3 and his
wife responded that the bruises “look like hickeys,” Miller
proceeded to tell them that the night before he had been “with
some friends” at Colleen’s house where “they all got quite drunk”
and “he ended up sleeping with” Colleen. 4 Friend 3 recounted
that Miller told him that Colleen gave him a ride home that
morning and that “he thought everything was fine” until he
received a text message from Colleen’s girlfriend accusing him of
sexually assaulting Colleen. Friend 3 stated that Miller had very
adamantly denied the accusation and that Friend 3 and his wife
“were shocked that the[re] were even accusations because [the
bruises on Miller’s neck] obviously looked like hickeys.”
¶20 During closing argument, Counsel stated that this was
“indeed a case of buyer’s remorse.” He stated that Colleen’s plan
to have “a quick fling with [Miller] and move on the next day as
if nothing had ever happened” was foiled by the hickeys that were
left on her neck. He argued that because Colleen was supposed to
meet with her girlfriend in a few hours to celebrate her girlfriend’s
birthday, and because her girlfriend would “likely be hurt” by
Colleen’s sexual encounter with Miller, Colleen “came up with the
only story she could” “to explain away the hickeys”—i.e.,
“remove consent from the equation.” Counsel emphasized that
the hickeys on Miller’s neck were “proof positive that she was an
4. The State objected to this testimony on hearsay grounds.
Counsel responded that it was admissible as an excited utterance,
and the trial court overruled the objection.
20220059-CA 8 2023 UT App 85State v. Miller
active and willing participant in everything that occurred
between them.” Counsel made no mention during closing of the
contradiction between Colleen’s trial testimony that she wore
“running shorts” during the assault and Nurse’s notation that
Colleen told her she had worn jeans during the assault.
¶21 The jury convicted Miller of object rape, which charge was
based on the allegation that Miller inserted his fingers inside
Colleen’s vagina while she slept. But the jury acquitted him of
forcible sodomy and forcible sexual abuse, which were based on
his alleged conduct after Colleen awoke. Miller appeals.
ISSUES AND STANDARDS OF REVIEW
¶22 Miller challenges his conviction of object rape on several
grounds. First, he argues that Counsel rendered ineffective
assistance by not moving for a directed verdict on the ground that
there was insufficient evidence to support his conviction. Second,
he asserts that Counsel was ineffective for not highlighting during
closing argument the “critical discrepancy” between Colleen’s
trial testimony and what she told Nurse she was wearing during
the sexual assault. “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. Guerro, 2021 UT App 136, ¶ 25, 502 P.3d 338(quotation simplified), cert. denied, 525 P.3d 1254 (Utah 2022).
¶23 Third, Miller argues that the trial court erred in permitting
“Nurse to testify essentially verbatim to [Colleen’s] statements
made during the sexual assault exam” under the hearsay
exception provided for in rule 803(4) of the Utah Rules of
Evidence. “When reviewing rulings on hearsay evidence, we
review legal questions regarding admissibility for correctness,
questions of fact for clear error, and the trial court’s final ruling
on admissibility for abuse of discretion.” State v. Guzman, 2018 UT
20220059-CA 9 2023 UT App 85State v. Miller
App 93, ¶ 10, 427 P.3d 401. Additionally, “we will not reverse the
trial court’s ruling on evidentiary issues unless it is manifest that
the trial court so abused its discretion that there is a likelihood
that injustice resulted.” State v. Gollaher, 2020 UT App 131, ¶ 21,
474 P.3d 1018 (quotation simplified), cert. denied, 481 P.3d 1040(Utah 2021).
¶24 Miller also seeks remand to the trial court under rule 23B
of the Utah Rules of Appellate Procedure to supplement the
record with evidence necessary to support another argument that
Counsel was ineffective, namely for failing to strike a juror. “A
remand under rule 23B will be granted 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.” State v. Norton, 2015 UT App 263,
¶ 3, 361 P.3d 719 (quotation simplified).
ANALYSIS
I. Ineffective Assistance of Counsel
¶25 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.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “A
defendant’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 (quotation simplified), cert. denied, 481 P.3d 1040(Utah 2021).
¶26 To satisfy the deficient performance prong, the defendant
must establish that defense counsel’s actions “fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at 688.
To that end, the defendant must overcome the “strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. Indeed, “even if an
20220059-CA 10 2023 UT App 85State v. Miller
omission is inadvertent and not due to a purposeful strategy,
relief is not automatic.” State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d 871(quotation simplified). Instead, “even if a court concludes that
counsel made an error, the ultimate question is always whether,
considering all the circumstances, counsel’s acts or omissions
were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36,
462 P.3d 350.
¶27 To satisfy the prejudice prong, the “defendant must
present sufficient evidence to support a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Archuleta v. Galetka, 2011
UT 73, ¶ 40, 267 P.3d 232 (quotation simplified). “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Strickland, 466 U.S. at 694. When evaluating
prejudice, “an appellate court should consider the totality of the
evidence, taking into account such factors as whether the errors
affect the entire evidentiary picture or have an isolated effect and
how strongly the verdict is supported by the record.” Gregg v.
State, 2012 UT 32, ¶ 21, 279 P.3d 396 (quotation simplified).
¶28 Miller argues that Counsel was constitutionally ineffective
for failing to move for a directed verdict and for failing to
highlight during closing argument that, contrary to her trial
testimony, Colleen told Nurse that she was wearing jeans at the
time of the assault. Relatedly, Miller also moves for remand under
rule 23B of the Utah Rules of Appellate Procedure to supplement
the record with evidence to support a third claim of ineffective
assistance. We address each argument in turn.
A. Directed Verdict
¶29 Miller argues that Counsel was ineffective for not moving
for a directed verdict because insufficient evidence supported his
conviction for object rape. He asserts that the evidence was
insufficient because Colleen’s testimony—which served as the
sole basis for his conviction—“was inherently improbable and
20220059-CA 11 2023 UT App 85State v. Miller
relied on, at best, speculation.” We hold that Counsel did not
perform deficiently in not seeking a directed verdict on these
grounds.
¶30 Although appellate courts “are not normally in the
business of reassessing or reweighing evidence” and instead
generally “resolve conflicts in the evidence in favor of the jury
verdict,” an exception to this practice arises in “unusual
circumstances” “when witness testimony is so inconclusive or
inherently improbable that it could not support a finding of guilt
beyond a reasonable doubt.” State v. Prater, 2017 UT 13, ¶ 32, 392
P.3d 398 (quotation simplified). A claim of inherent improbability
“is difficult to successfully establish” on appeal. State v. Cady, 2018
UT App 8, ¶ 18, 414 P.3d 974, cert. denied, 421 P.3d 439 (Utah 2018).
In considering whether a witness’s testimony is inherently
improbable, three factors merit consideration: “material
inconsistencies, patent falsehoods, and lack of corroborating
evidence.” State v. Jok, 2021 UT 35, ¶ 32, 493 P.3d 665. But our
Supreme Court has warned against an “inflexible reliance on
these factors” and has emphasized that “the proper test is, and
always has been, whether reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime.” Id. (quotation simplified). In other words, “a sufficiency
of the evidence claim, including a showing that testimony cannot
support a finding of guilt, is not sustained by merely meeting
enumerated criteria considered in a previous case.” Id. ¶ 36.
“Rather, when weighing the testimony in light of the other
evidence, the testimony of the witness must run so counter to
human experience that it renders the testimony inappropriate for
consideration in sustaining a finding of guilt.” Id. (quotation
simplified).
¶31 Miller argues that Colleen’s testimony was inherently
improbable because she testified at trial that she had fallen asleep
on her side while wearing running shorts and that Miller had laid
down behind her and reached “up between” her legs to insert his
fingers in her vagina. Although Miller concedes that this act
20220059-CA 12 2023 UT App 85State v. Miller
would have been possible if Colleen had been wearing shorts that
could be “easily pushed aside” to allow his hand to reach “up
between her legs,” Miller asserts that Colleen’s “allegation simply
could not have been accurate” if she had been wearing jeans
during the assault 5 —which is what Colleen told Nurse she had
been wearing. Thus, quoting State v. Robbins, 2009 UT 23, ¶ 18, 210
P.3d 288, Miller contends that Colleen’s “switch at trial to saying
she was wearing shorts was ‘incredibly dubious.’” 6
5. Although Miller’s and the State’s arguments accept this factual
premise, Colleen actually testified that Miller “partially pulled
down” her running shorts before reaching “up between” her legs
to commit object rape. It is not clear to us that it would have been
impossible for Miller to have done the same thing if Colleen was
wearing jeans instead of shorts.
6. Miller additionally argues that “[t]here were also discrepancies
about [Colleen’s] state of mind and awareness.” Colleen testified
that she took Advil PM in the kitchen with her friends present, yet
no one corroborated this claim, and she declined to take a blood
or urine test during the sexual assault examination. And although
she testified she was “[c]ompletely groggy” when she woke up to
Miller’s assault on her, at trial she was nonetheless able to recount
specific details of the assault and to drive Miller home later that
morning. But the fact that no one actually saw Colleen take the
pill or that she was able to recall details of the assault despite
being groggy during its commission does not render her
testimony “so incredibly dubious or inherently improbable that it
could not support a conviction.” State v. Jok, 2021 UT 35, ¶ 31, 493
P.3d 665.
Another alleged inconsistency to which Miller points is that
Colleen testified that she tried to push and kick Miller away to no
avail when he placed his mouth on her vagina, yet she was able
to prevent him from inserting his penis into her vagina merely by
(continued…)
20220059-CA 13 2023 UT App 85State v. Miller
¶32 Miller also points to the lack of evidence corroborating
Colleen’s allegations of object rape. See State v. Skinner, 2020 UT
App 3, ¶ 34, 457 P.3d 421 (“Corroborating evidence sufficient to
defeat [an inherent improbability] claim does not have to
corroborate the witness’s account across the board, in every
particular. It just has to provide a second source of evidence for at
least some of the details of the witness’s story.”), cert. denied, 462
P.3d 805 (Utah 2020); State v. Rivera, 2019 UT App 188, ¶ 24, 455
P.3d 112 (stating that the existence of “any additional evidence
supporting the verdict would preclude a judge from
reconsidering a witness’s credibility”), cert. denied, 548 P.3d 749(Utah 2020). He asserts that “[t]he only State witnesses—[Friend
1] and Nurse—offered no corroboration.” He says Friend 1
offered no corroboration because she was not present in Colleen’s
house during the assault, and Nurse offered none because she did
not observe any injuries that would correspond with object rape.
¶33 But “the fact that a witness’s trial testimony is somewhat at
odds with other evidence in the case, including perhaps that
witness’s own prior statement, is not enough to render that
testimony inherently improbable.” State v. Carrell, 2018 UT App
21, ¶ 53, 414 P.3d 1030 (quotation simplified), cert. denied, 425 P.3d
801 (Utah 2018). See Prater, 2017 UT 13, ¶ 39 (stating that the
inconsistencies between the witnesses’ initial statements to police
and their trial testimonies “by themselves are insufficient to
invoke the inherent improbability exception”) (quotation
simplified); id. ¶ 38 (stating that in Robbins, 2009 UT 23, “[i]t was
the inconsistencies in the child’s testimony plus the patently false
placing her hand in the way. But this alleged inconsistency relates
to charges on which the jury acquitted Miller—not to the object
rape charge on which he was convicted—and is therefore
immaterial to the object rape charge. See id. ¶ 32 (listing “material
inconsistencies” as a factor meriting consideration when
determining whether testimony is inherently improbable)
(emphasis added).
20220059-CA 14 2023 UT App 85State v. Miller
statements the child made plus the lack of any corroboration that
allowed this court to conclude that insufficient evidence
supported Robbins’s conviction”) (emphasis in original). This is
because “[t]he question of which version of [a witness’s story] was
more credible is the type of question we routinely require juries
to answer.” Id. ¶ 39.
¶34 Here, when confronted with the inconsistency at trial,
Colleen explained that she did not recall telling Nurse that she
had worn jeans during the assault but that she had worn “jeans
and a T-shirt” to the medical exam. And whether to accept this
explanation that the inconsistency was the result of a
misunderstanding and the extent to which the inconsistency
affected Colleen’s credibility were questions that could
reasonably be left to the jury.
¶35 For these reasons, the apparent inconsistency between
Colleen’s two statements regarding whether she was wearing
jeans or shorts at the time of the assault, by itself, does not render
her trial testimony “inappropriate for consideration in sustaining
a finding of guilt.” Jok, 2021 UT 35, ¶ 36. Counsel therefore did not
perform deficiently in not moving for a directed verdict, see State
v. Alzaga, 2015 UT App 133, ¶ 73, 352 P.3d 107 (“The failure of
counsel to make motions or objections which would be futile if
raised does not constitute ineffective assistance.”) (quotation
simplified), and this claim of ineffective assistance of counsel fails.
B. Closing Argument
¶36 Miller next argues that Counsel was ineffective for not
discussing during closing argument that Colleen initially told
Nurse that she had been wearing jeans—and not running shorts—
during the assault. He contends that “the issue of what [Colleen]
was wearing was of critical importance” and was “possibly the
most important detail of trial” because the object rape that Colleen
described at trial—i.e., Miller reaching up between her legs and
placing his fingers in her vagina—would have been impossible
20220059-CA 15 2023 UT App 85State v. Miller
had she been wearing jeans. But see supra note 5. He further asserts
that “[i]n a case where credibility was key, any discrepancy or
change in [Colleen’s] story would have been important to stress
to the jury,” especially given the fact that the jury acquitted him
of the other two counts with which he had been charged. 7 We
disagree.
¶37 “The right to effective assistance extends to closing
arguments.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam).
However, “[j]udicial review of a defense attorney’s summation is
. . . highly deferential.” Id. at 6. See id. at 5–6 (“[C]ounsel has wide
latitude in deciding how best to represent a client, and deference
to counsel’s tactical decisions in his closing presentation is
particularly important because of the broad range of legitimate
defense strategy at that stage.”); id. at 8 (“[J]udicious selection of
arguments for summation is a core exercise of defense counsel’s
discretion.”). Accordingly, “[w]hen counsel focuses on some
issues to the exclusion of others, there is a strong presumption that
he did so for tactical reasons rather than through sheer neglect.”
Id. But “even if an omission is inadvertent, relief is not automatic”
because “[t]he Sixth Amendment guarantees reasonable
competence, not perfect advocacy judged with the benefit of
hindsight.” Id. See State v. Taylor, 947 P.2d 681, 689–90 (Utah 1997)
(“We are not in a position to review every closing statement . . . to
7. We note that “while a split verdict may be consistent with the
notion that the jury was conflicted about the evidence or had some
doubt about a victim’s credibility, it may also just as legitimately
suggest compromise or some leniency in favor of” Miller. State v.
Nunes, 2020 UT App 145, ¶ 33 n.13, 476 P.3d 172 (quotation
simplified), cert. denied, 485 P.3d 943 (Utah 2021). Of course, in this
case, there is an objectively rational basis for the split verdict. The
jury could have concluded that the object rape occurred while
Colleen was asleep and unable to consent, while the other acts
occurred once she was awake, with some evidence suggesting
those acts were consensual.
20220059-CA 16 2023 UT App 85State v. Miller
determine whether it was persuasive enough. . . . An attorney’s
performance need only be reasonable, and the range of
reasonableness is broad.”) (emphasis in original) (quotation
otherwise simplified). Thus, “[e]ven if some of the arguments
would unquestionably have supported the defense, it does not
follow that counsel was incompetent for failing to include them.”
Yarborough, 540 U.S. at 7. Rather, defense counsel’s omission of a
particular issue during argument amounts to deficient
performance only when the argument is “so clearly more
persuasive than those he discussed that [its] omission can only be
attributed to a professional error of constitutional magnitude.”
Id. at 9.
¶38 Miller has not satisfied this high burden of demonstrating
that Counsel’s closing argument was deficient. Counsel’s main
focus during closing argument was to convince the jury that the
sexual encounter between Miller and Colleen was consensual and
that Colleen changed her mind only after she saw hickeys on her
neck and became afraid that her girlfriend would find out. 8 To
establish that Miller’s actions were consensual, Counsel made
several arguments, including: that Colleen could not have been as
groggy as she claimed to be since she seemed to have “a perfect
recall of what happened” and because she had the presence of
mind to photograph her injuries and to contact her friends
immediately following the assault; that Colleen testified that
Miller forcefully pinned down both her arms but the pictures she
took in the bathroom showed red marks on only one arm—and,
curiously, Nurse did not observe marks even on that arm during
her examination of Colleen; that Colleen offered to drive Miller
home the following morning; and that Miller also had hickeys on
his neck, suggesting that Colleen was an active participant in the
sexual encounter.
8. This argument was not without a sound basis. It might explain
why the jury acquitted Miller of two of the three charges. See supra
note 7.
20220059-CA 17 2023 UT App 85State v. Miller
¶39 Thus, Counsel did not fail to challenge Colleen’s credibility
in closing argument. Although these challenges were not directly
related to the object rape charge, it would not be unreasonable for
Counsel to believe that an overall attack on Colleen’s credibility
would also extend to the believability of her account of object
rape. Indeed, reasonable counsel could believe that convincing
the jury that the overall encounter was consensual would also
extend to how the encounter began and would therefore also
result in acquittal on the object rape charge. To that end, Counsel
stated during closing argument, with our emphasis, that the
hickeys on Miller’s neck were “proof positive that [Colleen] was
an active and willing participant in everything that occurred between
them.” It was therefore reasonable for Counsel not to give special
attention to that specific charge during closing.
¶40 Additionally, we can conceive of at least two strategic
reasons why Counsel may have forgone mention of the apparent
inconsistency during closing argument. See Strickland v.
Washington, 466 U.S. 668, 689 (1984) (stating that in establishing
deficient performance, “the defendant must overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy”) (quotation simplified).
First, Counsel may have decided that any alternative argument
may have been distracting and taken the jury’s focus away from
his main argument that the sexual encounter was consensual and
that Colleen fabricated the assault allegations only after she
realized that the hickeys on her neck rendered the encounter
impossible to conceal from her girlfriend. Even assuming that
jeans would have rendered the manner in which Colleen
described the object rape much less feasible, Counsel may well
have determined that discussion of the inconsistency would have
muddied the waters, especially since the argument might then
have caused the jury to consider Colleen’s explanation for the
inconsistency and to determine which of the two versions (i.e.,
jeans or shorts) it found more persuasive. It would have therefore
been reasonable for Counsel to decide instead to focus his closing
20220059-CA 18 2023 UT App 85State v. Miller
argument on convincing the jury that the sexual encounter was
entirely consensual.
¶41 Second, Counsel may have decided that it was sufficient to
expose the inconsistency of what Colleen was wearing during her
cross-examination and to avoid mentioning it during closing so as
not to invite a rebuttal from the State. See Pickens v. Gibbons, 206
F.3d 988, 1001 (10th Cir. 2000) (stating that it was not unreasonable
for defense counsel to waive closing argument altogether “in a
strategic attempt to preclude the government from offering any
rebuttal argument”); State v. Hoffner, 811 N.E.2d 48, 57 (Ohio 2004)
(same). For example, in rebuttal, the State could have argued that
the inconsistency was due to a misunderstanding between
Colleen and Nurse during the sexual assault exam. The State
might have even pointed out that jeans are an odd choice of
sleepwear for one who leaves a gathering with the intention of
preparing for bed, thus lending some persuasiveness to Colleen’s
explanation for the apparent inconsistency. Most importantly, the
State could have pointed to the fact that Colleen testified that
Miller had partially removed her shorts prior to perpetrating
object rape, thus rendering the apparent inconsistency less
important. The State could have emphasized that even if Colleen
was confused about whether she was wearing shorts or jeans, she
correctly recalled that the item of clothing, whatever it was, was
partially removed preparatory to commission of the object rape.
Counsel therefore might have determined that the defense was
best served by bringing the inconsistency to the jury’s attention
during Colleen’s and Nurse’s testimonies without providing the
State an opportunity to offer a plausible explanation for the
inconsistency during its rebuttal in closing argument.
¶42 For these reasons, we conclude that Counsel did not
perform deficiently when he omitted from his closing argument
any mention of the apparent inconsistency between Colleen’s
statements regarding whether she was wearing jeans or running
shorts at the time of the assault, and this claim of ineffective
assistance of counsel fails.
20220059-CA 19 2023 UT App 85State v. Miller
C. Rule 23B Motion
¶43 Miller also seeks remand under rule 23B of the Utah Rules
of Appellate Procedure to supplement the record with facts to
support a third claim of ineffective assistance of counsel, namely,
that Counsel was ineffective for failing to request that a seated
juror (Juror 15) be removed and replaced by an alternate juror
after Counsel was made aware that Juror 15 had a history with
Miller and two of his defense witnesses. We first recount the
relevant facts and extra-record allegations relevant to this third
claim of ineffective assistance.
¶44 During jury selection, Juror 15 introduced himself as “a
retired educator here in Logan City School District with a
bachelor’s degree in art education.” After additional prospective
juror introductions, the prosecutors then introduced themselves
to the jury pool and listed the names of the State’s potential
witnesses, which included the names of Friend 2 and Friend 3.
The trial court then asked the prospective jurors whether any of
them were “familiar” with the prosecutors or any of the State’s
potential witnesses. Three prospective jurors raised their hands,
and two of the prospective jurors were dismissed following
further questioning by the court. 9 Juror 15 did not raise his hand.
¶45 Counsel next introduced himself, his co-counsel, and
Miller and indicated that the potential defense witnesses “are the
same as those the State has already mentioned.” The court then
asked whether any of the prospective jurors were “familiar” with
any of those individuals, to which none of the remaining
prospective jurors answered in the affirmative. At the conclusion
of jury selection, Juror 15 sat as one of the jurors for trial and
participated in the jury deliberations that ultimately found Miller
9. The third prospective juror also did not ultimately serve on the
jury, but the juror was dismissed for an unrelated reason.
20220059-CA 20 2023 UT App 85State v. Miller
guilty of the object rape charge, while acquitting him on two other
charges.
¶46 Miller’s 23B motion asserts that the post-trial investigation
conducted by his appellate counsel revealed “that Juror 15 was a
teacher to [him] and several of the witnesses and had substantial
and even negative interactions with them.” In support of this
claim, Miller submitted school records confirming that he, Friend
2, and Friend 3 were indeed students of Juror 15 some ten years
earlier, in 2011 and 2012. Miller also submitted an affidavit by his
appellate counsel recounting the results of his investigation, as
summarized below.
¶47 Friend 3 told appellate counsel that on the second day of
trial, he immediately recognized Juror 15 and informed Miller that
he was their former middle school art teacher. Miller then asked
Counsel to show him the jury list and upon seeing Juror 15’s
name, he confirmed that Juror 15 was indeed a former teacher of
his. 10 Counsel confirmed to appellate counsel that he had been
“made aware of this” on the second day of trial, but he did not
lodge an objection or otherwise bring this revelation to the trial
court’s attention.
¶48 Friend 3 also told appellate counsel that in addition to
being a former teacher of his, Juror 15 and Friend 3’s family had
been members of the same church congregation for over 20 years,
which fact Friend 3’s father also confirmed. Because of this, when
he was a student of Juror 15, Friend 3 “made it a point to be a
‘brown nose’” “because he knew the juror could go directly to his
parents.” But Friend 3 also stated that he and some of his friends
10. Appellate counsel’s affidavit states that during jury selection,
no names were used and that prospective jurors were referenced
only by their assigned number. Additionally, Miller’s father told
appellate counsel that based on the courtroom layout and where
Juror 15 was seated, Miller did not have a good view of Juror 15
during the first day of trial.
20220059-CA 21 2023 UT App 85State v. Miller
had “terroriz[ed]” Juror 15’s house through various means, such
as doorbell ditching, toilet-papering his yard, and pouring bleach
and pancake batter on his lawn. Appellate counsel’s affidavit does
not reveal whether Juror 15 ever discovered that Friend 3 was the
perpetrator of such acts. Friend 3 also recounted that when he
discussed Juror 15 with Friend 2, Friend 2 told him that “Zach is
screwed.” And when Friend 3 alerted Miller of Juror 15’s identity,
Miller responded that Juror 15 “did not like him in class.”
¶49 Friend 2 told appellate counsel that Juror 15 was “a ‘strict’
teacher who did not permit ‘fun, emotion, joking or screwing
around’ in class.” Friend 2 also recounted that Juror 15 had
“kicked him out of class multiple times” and that the last time this
had happened, Friend 2’s mother became involved and an
argument ensued, resulting in Friend 2 never again returning to
Juror 15’s class.
¶50 The school records that Miller submitted in conjunction
with his rule 23B motion indicate that Miller had Juror 15 as a
teacher twice for ceramics, in which he obtained grades of B and
B+, and once for a drawing and painting class, in which he
obtained a grade of P. Friend 3 also had Juror 15 twice for
ceramics, in which he obtained A- and B- grades. Lastly, Friend 2
also took ceramics twice from Juror 15 and obtained C and F
grades.
¶51 Based on these allegations not found in the record, Miller
argues that Counsel “was constitutionally ineffective by failing to
ask that Juror 15 be removed.” He asserts that such a request
would not have resulted in a delay in trial or in a mistrial because
an alternate juror was available to sit in Juror 15’s stead. He also
states that “given the extensive history that [he] and two of the
three defense witnesses had with this one juror, the court almost
certainly would have had no choice but to remove the juror.”
Accordingly, he seeks remand under rule 23B to supplement the
record with evidence to support this claim of ineffective
assistance.
20220059-CA 22 2023 UT App 85State v. Miller
¶52 “Rule 23B of the Utah Rules of Appellate Procedure
provides a mechanism for criminal defendants to supplement the
record with facts that are necessary for a finding of ineffective
assistance of counsel where the inadequacy of the record on
appeal is a result of the ineffective assistance alleged.” State v.
Norton, 2015 UT App 263, ¶ 6, 361 P.3d 719 (quotation simplified).
We will grant an appellant’s motion for remand under rule 23B
only upon satisfaction of the following requirements: “(1) [the
motion] must be supported by affidavits alleging facts outside the
existing record, (2) the alleged facts must be non-speculative, and
(3) the alleged facts, if true, must establish both elements of a
traditional ineffective-assistance claim, i.e., counsel’s deficient
performance and resulting prejudice.” State v. Tirado, 2017 UT
App 31, ¶ 14, 392 P.3d 926. We hold that Miller has not satisfied
the third requirement.
¶53 A criminal defendant has the right under both the Utah
and federal constitutions to a trial by an unbiased, impartial jury.
See U.S. Const. amend. VI (“In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an
impartial jury[.]”); Utah Const. art. I, § 12 (“In criminal
prosecutions the accused shall have the right . . . to have a speedy
public trial by an impartial jury[.]”). In determining whether
defense counsel performed deficiently in jury selection or
retention, “counsel is given an especially wide berth.” State v.
Marquina, 2018 UT App 219, ¶ 37 & n.10, 437 P.3d 628, aff’d, 2020
UT 66, 478 P.3d 37. See Marquina, 2020 UT 66, ¶ 44. This is because
jury selection and retention are “more art than science.” State v.
Litherland, 2000 UT 76, ¶ 21, 12 P.3d 92.
There are a multitude of inherently subjective
factors typically constituting the sum and substance
of an attorney’s judgments about jurors. A juror’s
demeanor, interaction with others in the courtroom,
and personality in general may all play an
important role in providing clues as to that juror’s
likely predilections toward the case at hand.
20220059-CA 23 2023 UT App 85State v. Miller
Marquina, 2020 UT 66, ¶ 43 (quotation simplified). And “by the
end of trial, counsel will have had even more time to observe
jurors and determine their likely predilections toward the case.”
Marquina, 2018 UT App 219, ¶ 37 n.10 (quotation simplified). For
this reason, defense counsel’s decision in jury selection or
retention “may even appear counterintuitive, particularly when
viewed from the perspective of a bare transcript on appeal.”
Litherland, 2000 UT 76, ¶ 22. Accordingly, “counsel’s lack of
objection to, or failure to remove, a particular juror is presumed
to be the product of a conscious choice or preference,” Marquina,
2020 UT 66, ¶ 44 (quotation simplified), and “the decision not to
remove a particular juror need only be plausibly justifiable, and
such plausible justifiability is ordinarily presumed,” Litherland,
2000 UT 76, ¶ 25.
¶54 A defendant may rebut this presumption by showing
(1) that defense counsel was so inattentive or
indifferent during the jury selection process that the
failure to remove a prospective juror was not the
product of a conscious choice or preference; (2) that
a prospective juror expressed bias so strong or
unequivocal that no plausible countervailing
subjective preference could justify failure to remove
that juror; or (3) that there is some other specific
evidence clearly demonstrating that counsel’s
choice was not plausibly justifiable.
Id. Here, Miller argues that Counsel’s “failure to do anything in
the face of learning Juror 15 knew [him] and two of the three
defense witnesses, constituted either inattentiveness or ‘other
specific evidence,’” thereby implicating the first and third
possible rebuttals of the presumption.
¶55 Concerning the third rebuttal, Miller asserts that this was
“a case that hinged on credibility determinations,” and “it was
known during trial that [he] did not think the juror liked him and
20220059-CA 24 2023 UT App 85State v. Miller
that the juror had numerous negative interactions with at least
one of the defense witnesses.” 11 But appellate counsel’s affidavit
states only that Counsel was “made aware” on the second day of
trial that “Miller and two of his witnesses recognized and had a
history with” Juror 15. The remaining information the affidavit
recounts was expressly the result of appellate counsel’s post-trial
investigation, including that Juror 15 was a former middle school
teacher of Miller, Friend 2, and Friend 3; Miller’s comment to
Friend 3 that Juror 15 “did not like him in class”; Friend 2’s
comment to Friend 3 that “Zach is screwed”; the fact that Friend
3’s family and Juror 15 had been in the same church congregation
for over 20 years; and Friend 2’s negative experience in Juror 15’s
class. Thus, contrary to Miller’s assertions on appeal, it is not clear
from the affidavit whether Counsel was actually informed of the
negative view Miller, Friend 2, and Friend 3 had of Juror 15 or vice
versa.
¶56 Furthermore, even if Counsel had been made aware of the
information appellate counsel’s investigation revealed, this is not
sufficient to establish that Counsel’s decision not to seek Juror 15’s
removal was not “plausibly justifiable.” Id. It is plausible that
Counsel might not have been concerned by the fact that Juror 15
11. Alternatively, Miller argues that “the presumption of
reasonableness to counsel’s performance cannot apply” in this
case because “the facts needed to support any presumption of
reasonableness in jury selection are absent here when [C]ounsel
failed to take steps needed to make an informed choice.” But our
Supreme Court has repeatedly stated that “counsel’s lack of
objection to, or failure to remove, a particular juror is presumed
to be the product of a conscious choice or preference,” State v.
Marquina, 2020 UT 66, ¶ 44, 478 P.3d 37 (quoting State v. Litherland,
2000 UT 76, ¶ 20, 12 P.3d 92), and has clarified a means by which
this presumption may be rebutted, see Litherland, 2000 UT 76, ¶ 25.
The Court has not suggested that the presumption is subject to
prerequisites. For this reason, this argument necessarily fails.
20220059-CA 25 2023 UT App 85State v. Miller
did not like Miller as a student and frequently expelled Friend 2
from his class some ten years earlier or that Juror 15 attended the
same church congregation as Friend 3’s family. 12 Indeed, “an
attorney may make a reasoned judgment that a prospective
juror’s consciousness of, and concern for, his or her own potential
bias actually provides a more sure foundation for confidence in
that juror’s reasoning processes.” Id. ¶ 22. “The attorney may even
sense that the prospective juror is likely to overcompensate by
assigning more weight or credibility to testimony that tends to
oppose the juror’s own potential bias.” Id. (quotation simplified).
A reasonable attorney could have made a similar judgment in this
case.
¶57 Concerning the first rebuttal, i.e., Miller’s assertion that
Counsel was inattentive, a “defendant must either prove a specific
and clear example of inattentiveness that directly caused the
failure to object to a particular juror, or else show that counsel
generally failed to participate in a meaningful way in the process
as a whole,” to rebut the presumption on that ground. Id. ¶ 25
n.10. Because Miller has not engaged with this requirement, he
has not carried his burden of persuasion and we do not address
that issue further. See Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903.
¶58 For these reasons, the additional facts Miller alleges are
insufficient to establish the deficient performance prong of his
ineffective-assistance claim, and we therefore deny his motion for
remand under rule 23B of the Utah Rules of Appellate Procedure.
12. The affidavit does not state that Juror 15 ever discovered that
Friend 3 “terroriz[ed]” his house. To the contrary, Friend 3’s
statement that he was a “brown nose” in Juror 15’s class because
he knew Juror 15 “could go directly to his parents” suggests that
Juror 15 would have notified Friend 3’s parents if he had
discovered that Friend 3 was one of the perpetrators.
20220059-CA 26 2023 UT App 85State v. Miller
II. Rule 803(4)
¶59 Hearsay is a “statement” that “the declarant does not make
while testifying at the current trial or hearing” and is offered by a
party “to prove the truth of the matter asserted in the statement.”
Utah R. Evid. 801(c)(1), (2). Hearsay statements are inadmissible
at trial unless authorized by rule or law. See id. R. 802. Rule 803(4)
of the Utah Rules of Evidence is one such rule that excepts from
the general bar on hearsay a statement that (1) “is made for—and
is reasonably pertinent to—medical diagnosis or treatment” and
(2) “describes medical history; past or present symptoms or
sensations; their inception; or their general cause.” “If the
statement meets both of rule 803(4)’s qualifications, it is
admissible because of the patient’s strong motivation to be
truthful when discussing his or her medical condition with a
doctor.” State v. Guzman, 2018 UT App 93, ¶ 28, 427 P.3d 401(quotation simplified).
¶60 Miller argues that the trial court erred in admitting Nurse’s
hearsay testimony regarding the verbal history and the answers
to the standardized questions she obtained from Colleen during
the sexual assault examination. He asserts that the court
incorrectly concluded that the challenged testimony was
admissible under rule 803(4) “because the majority of the
statements were not necessary for medical treatment.”
Specifically, Miller asserts that the following portions of Nurse’s
testimony relating to the object rape charge 13 did not fall under
the ambit of rule 803(4):
• Colleen “said she had friends over for a get-together, and
there had been some alcohol.”
13. Miller also points to several of Nurse’s statements that related
to the other two charges on which he was ultimately acquitted.
We have no need to recount those statements here.
20220059-CA 27 2023 UT App 85State v. Miller
• Colleen “was not feeling well, took an Advil PM, and went
to bed.”
• Colleen “woke up lying in bed ‘with [Miller] behind her.’”
• Miller was, “in her words, ‘fingering her.’”
• Colleen “didn’t know what to do at the time. She kind of
sat there for a moment.”
• Colleen “stated that she said no, and it continued.”
• Colleen “said the perpetrator was ‘Zach Miller,’ who was
an ‘acquaintance.’”
¶61 Miller contends that “Nurse learned nothing from the
testimony noted above that made any difference in her diagnosis
or aided in the treatment”—to the contrary, he contends, “Nurse
did not render a diagnosis and did not treat [Colleen], other than
to ask her standardized questions and perform a standardized
examination.” And in any event, he argues, “[a]ll the information
Nurse needed to treat [Colleen] occurred when [Colleen] said she
had been sexually assaulted” and “[t]o any extent more is
permitted, the level of detail Nurse testified to far exceeded any
conceivable medical treatment purpose in this case.” 14 In support
14. Miller additionally argues that even if the challenged
statements were admissible under rule 803(4), they were
nonetheless inadmissible because “they had no relevance to the
decision the jury was being asked to make.” Specifically, he
contends the statements did not make “it more or less probable
that [Colleen] did not consent” to the sexual encounter and that
they were duplicative of Colleen’s testimony. See Utah R. Evid.
401; id. R. 402. But Counsel did not object to Nurse’s testimony on
relevance grounds, and this argument is therefore unpreserved.
(continued…)
20220059-CA 28 2023 UT App 85State v. Miller
Miller contends that, to the extent the argument is
unpreserved, Counsel was ineffective for not objecting to the
challenged statements as irrelevant. Concerning the deficient
performance prong, he asserts that “[i]t would have been
unreasonable not to also object on relevance grounds, as
[C]ounsel should have been aware both that evidence no matter
any other rule must still be relevant to be admissible and given
the facts of this case Nurse’s testimony contributed nothing of
relevance to the decisions the jury had to make,” i.e., whether the
sexual encounter was consensual. But “[f]ailure to raise futile
objections does not constitute ineffective assistance of counsel.”
State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546. And here, despite
Miller’s assertions to the contrary, the challenged statements did
go directly toward consent as well as to other elements of the
charged crimes. Namely, Colleen told Nurse that she went to
sleep after consuming alcohol and taking Advil PM and woke up
to Miller committing object rape on her. She told Miller “no,” but
Miller continued. Thus, the statements tended to make the fact of
lack of consent more probable, see Utah R. Evid. 401(a), and any
objection Counsel would have made as to relevancy would have
been futile.
Concerning Miller’s assertion that the challenged statements
were irrelevant because they were duplicative of Colleen’s
testimony, rule 401 does not exclude repetitive evidence from its
definition of relevant evidence. See id. R. 401. In support of this
argument, Miller cites caselaw concerning the admissibility of
prior consistent statements under a separate rule of evidence, see
State v. Nunes, 2020 UT App 145, ¶ 25, 476 P.3d 172 (considering
admission under rule 801(d)(1)(B)), cert. denied, 485 P.3d 943 (Utah
2021), which has no bearing on whether evidence is relevant
under rule 401 of the Utah Rules of Evidence.
Finally, quoting State v. Fedorowicz, 2002 UT 67, ¶ 24, 52 P.3d
1194, Miller argues that “[t]he court here failed in its gatekeeping
function to ‘scrupulously examine’ the testimony before it was
(continued…)
20220059-CA 29 2023 UT App 85State v. Miller
of this argument, Miller cites the advisory committee note to rule
803(4) of the Federal Rules of Evidence, which gives the example
that although “a patient’s statement that he was struck by an
automobile would qualify” as a statement made for medical
diagnosis or treatment under rule 803(4), “his statement that the
car was driven through a red light” would not qualify. See Fed. R.
Evid. 803(4) advisory committee’s note. 15
¶62 But Counsel objected to Nurse’s testimony only once, and
the objection was broader than what Miller now argues on appeal.
admitted.” But Fedorowicz specifically discussed a court’s duty to
“scrupulously examine” evidence of other crimes, wrongs, or bad
acts before exercising its discretion to admit such evidence under
rule 404(b) of the Utah Rules of Evidence—it imposed no such
duty in the context of rule 401. Id. (quotation simplified). To the
contrary, “a trial court is not required to constantly survey or
second-guess a nonobjecting party’s best interests or trial strategy
and is not expected to intervene in the proceedings unless the
evidence would serve no conceivable strategic purpose.” See State
v. Guzman, 2018 UT App 93, ¶ 39, 427 P.3d 401 (quotation
simplified). Indeed, “the court should take measures to avoid
interfering with potential legal strategy or creating an impression
of a lack of neutrality.” Id. (quotation simplified).
15. Because Utah’s rule 803(4) “is the federal rule verbatim,” see
Utah R. Evid. 803 advisory committee’s note, we may “look to
federal cases interpreting the federal rule for guidance,” State v.
Vallejo, 2019 UT 38, ¶ 76 n.14, 449 P.3d 39. Cf. Supernova Media, Inc.
v. Pia Anderson Dorius Reynard & Moss, LLC, 2013 UT 7, ¶ 40 n.8,
297 P.3d 599 (“Interpretations of the Federal Rules of Civil
Procedure are persuasive where . . . the Utah Rules of Civil
Procedure are substantially similar to the federal rules.”)
(quotation simplified). Federal advisory committee notes are not
necessarily on the same footing, but Miller’s reliance on them is
not unreasonable.
20220059-CA 30 2023 UT App 85State v. Miller
After the State asked Nurse to “[t]ell us about” the verbal history
she obtained from Colleen during the examination, Counsel
objected on hearsay grounds. The State countered that the
testimony was being offered pursuant to rule 803(4), to which
Counsel responded that Colleen’s answers were “not for medical
history per se” and, instead, the purpose of Nurse’s questions was
“to report to law enforcement.” Thus, the trial court was faced
with a general objection to Nurse’s testimony regarding the verbal
history she obtained from Colleen, and not to any specific
statement to which Nurse testified thereafter. For this reason, our
review is limited to evaluating Counsel’s general, macro-level
hearsay objection at the onset of Nurse’s testimony that the trial
court overruled—and not the unpreserved challenges to
individual statements Nurse subsequently made that Miller now
raises on appeal. 16
¶63 As a general matter, “courts have proven hesitant to
exclude statements that serve a medical purpose even if they also
serve an investigative one.” 30B Charles Alan Wright et al.,
Federal Practice and Procedure § 6845 (Apr. 2023 update). Indeed,
“Utah courts have repeatedly held that statements by rape victims
made to medical providers describing their abuse are admissible
under rule 803(4).” State v. Nunes, 2020 UT App 145, ¶ 25 n.10, 476
P.3d 172. For example, in State v. Guzman, 2018 UT App 93, 427
P.3d 401, this court held that a rape victim’s statement to a nurse
that she was raped four times was admissible under rule 803(4)
because the victim made the statement “for purposes of medical
treatment or diagnosis, and the statements allowed the nurse to
16. Miller has not argued that Counsel was ineffective for failing
to lodge additional objections to Nurse’s testimony regarding
specific statements contained within the verbal history or the
standardized questionnaire, nor has he argued that the trial court
clearly erred in not sua sponte foreclosing the testimony he now
challenges on appeal.
20220059-CA 31 2023 UT App 85State v. Miller
address the possibility of injuries, pregnancy, and sexually
transmitted diseases.” Id. ¶ 32.
¶64 Similarly, in State v. Burnside, 2016 UT App 224, 387 P.3d
570, a sexual assault nurse examiner testified regarding a child’s
statement that the appellant “had done . . . bad touches” to her.
See id. ¶ 9 (quotation simplified). The trial court held that the
nurse’s testimony qualified for admission under rule 803(4). See
id. ¶¶ 40–41. On appeal, the appellant argued that the court
plainly erred because “the nurse practitioner was acting as a de
facto law enforcement officer and not a medical health
professional.” Id. ¶ 40 (quotation simplified). This court affirmed
the trial court’s finding that “the nurse practitioner was acting as
a health-care professional and that Child’s statements to her fell
within the medical treatment hearsay exception.” Id. ¶ 43. See id.
¶ 41 (discussing the nurse’s testimony that, among other things,
“the questions asked by the nurse practitioner were to determine
whether Child displayed symptoms of having been sexually
abused and to determine if she required medical treatment”)
(quotation simplified).
¶65 Here, Nurse testified that as a sexual assault nurse
examiner, she received specialized training in, among other
things, “injury documentation, how to perform a forensic exam,
[and] how to care for the patient that has been sexually assaulted.”
Regarding treatment, she stated that sexual assault nurse
examiners “will offer some recommendations for the patient in
regards to medications to prevent sexually transmitted infections
as well as medication to prevent pregnancy, and [they] also
recommend some follow-up care for them in regards to
counseling, mental health, and any follow-up for injuries that we
may have found with a medical provider.” And following her
examination of Colleen, Nurse recommended, and Colleen
obtained, “medications for sexually transmitted infection
prevention, and pregnancy prevention.”
20220059-CA 32 2023 UT App 85State v. Miller
¶66 As discussed above, when Counsel objected to Nurse’s
testimony regarding her examination of Colleen, he was objecting
to the entirety of the testimony she was about to offer. But while
Nurse’s examination certainly did serve a law enforcement
purpose, it likewise served a medical purpose of identifying and
treating any injuries Colleen might have sustained. Thus, Nurse’s
testimony regarding any statements Colleen might have made
during the examination were also “reasonably pertinent to . . .
medical diagnosis or treatment.” Utah R. Evid. 803(4)(A). See 30B
Charles Alan Wright et al., Federal Practice and Procedure § 6845
(Apr. 2023 update) (“[T]he proffered statement does not need to
be necessary to treatment, only reasonably related to that
purpose.”); United States v. Iron Thunder, 714 F.2d 765, 772 (8th Cir.
1983) (“Even though [the doctor’s] examination and questioning
of [the rape victim] were pursuant to a standardized protocol
designed in large measure to prepare for criminal prosecution,
Rule 803(4) applies to statements made for the purpose of medical
diagnosis as well as to statements made for the purpose of
medical treatment.”). Although it is entirely possible that specific
statements Colleen made to Nurse during the examination did not
satisfy rule 803(4), it was incumbent on Counsel to object to those
individual statements.
¶67 For these reasons, when faced with a wholesale objection
to Nurse’s testimony regarding what Colleen told her during the
sexual assault examination, the trial court correctly rejected
Counsel’s argument that Nurse’s testimony could not satisfy rule
803(4) because the examination also served a law enforcement
purpose.
CONCLUSION
¶68 We reject Miller’s claims that Counsel was ineffective for
not moving for a directed verdict or for omitting discussion in his
closing argument of the apparent inconsistency concerning
whether Colleen wore jeans or running shorts at the time of the
20220059-CA 33 2023 UT App 85State v. Miller
assault. We likewise deny Miller’s motion for remand under rule
23B of the Utah Rules of Appellate Procedure to supplement the
record with evidence supporting his third claim of ineffective
assistance concerning Juror 15. Finally, we conclude that the trial
court did not err in admitting Nurse’s testimony under rule 803(4)
of the Utah Rules of Evidence.
¶69 Affirmed.
20220059-CA 34 2023 UT App 85