State v. Hughes

2024 UT App 168

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DAYMIAN MARTIEZ HUGHES,
Appellant.

Opinion
No. 20220640-CA
Filed November 15, 2024

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 191906101

Nathalie S. Skibine, Attorney for Appellant
Sean D. Reyes and Natalie M. Edmundson,
Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

LUTHY, Judge:

¶1 Daymian Martiez Hughes appeals his convictions of
criminal trespass, sexual battery, unlawful detention, and four
counts of domestic violence in the presence of a child. He
contends that the evidence at trial was insufficient to support the
convictions and that his trial counsel (Counsel) rendered
constitutionally ineffective assistance by introducing evidence
that Hughes and one of his victims were subject to a mutual
restraining order at the time of the crimes. We determine that the
evidence was sufficient to support the convictions and that any
error by Counsel in introducing evidence of the mutual
restraining order did not prejudice Hughes’s defense. We
therefore affirm Hughes’s convictions.
State v. Hughes

BACKGROUND 1

The Backstory

¶2 Hughes and his former live-in girlfriend (Mother) have
four children together, a son (Son), who was thirteen years old at
the time of the incident giving rise to this case, and three
daughters (Oldest Daughter, Middle Daughter, and Youngest
Daughter), who were eleven, ten, and nine years old at that time.
Mother left Hughes in 2018, and she and the children moved into
the basement of her mother and stepfather’s home (Grandparents’
home).

¶3 Following their separation, Mother and Hughes regularly
exchanged time with the children based on the terms of a custody
agreement. Mother and Hughes were also subject to a mutual
restraining order that directed them not to have physical contact
with each other, to communicate only via text messages and only
about the children, and to conduct their exchanges of the children
curbside.

The Incident

¶4 In May 2019, Grandparents’ home flooded, so Mother and
the children stayed at a hotel for a few days while the home was
being cleaned. On one of those days, Mother and the daughters
were “hanging out” at the hotel pool while Son went with Hughes
to a basketball practice. After the practice, Son called Mother to
ask if he could stay with Hughes. Mother told Son that he needed
to return to the hotel. Hughes then got on the phone and asked
Mother if he “could come over and hang out and spend [some]

1. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences in a light most favorable to the verdict,
reciting the facts accordingly. We present conflicting evidence
only when necessary to understand issues raised on appeal.” State
v. Heaps, 2000 UT 5, ¶ 2, 999 P.2d 565 (cleaned up).

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time.” Mother told him “no,” explained that she and the
daughters were “going to go back to the hotel room,” and asked
that Hughes “just drop [Son] off.” Mother and the daughters then
returned to their room “to change and get ready for bed.”

¶5 The hotel room had a small kitchenette, a bathroom with a
tub, and an area with beds. A curtain could be pulled to separate
the bed area from the rest of the room. Mother was at the bathtub
helping Youngest Daughter, who has a disability affecting her
speech and “some . . . things that she does physically,” when there
was a knock at the hotel room door. Mother left Youngest
Daughter and went to the door. When she opened it, both Son and
Hughes walked in. Mother told Hughes that he “wasn’t supposed
to be there” and “that he had to go.” He responded by asking “if
[she] wanted to do something, if [she] wanted to go out, if [the
two of them] could talk, [and] if he could stay.” Mother said,
“No,” telling Hughes, “[Y]ou’re not supposed to be here, you
know that. I don’t want you here. Just leave.”

¶6 Mother asked Middle Daughter to get Youngest Daughter
out of the tub, which she did, and all the children went to the bed
area of the room. Hughes partly closed the curtain separating the
beds from the rest of the room and then “kept insisting to kiss
[Mother].” She refused. Eventually, Hughes “grabbed and
pushed [Mother] against the wall,” placed “his hands on the
wall,” and put “his whole body against [her].” Mother—still
wearing only a swimming suit and “swimming cover”—“kept
telling him to leave and get out,” but Hughes insisted that they
“needed to get back together.” He then began “grabbing
[Mother’s] butt,” “touching [her] breast,” and “touching
everything.” Mother began to cry and asked Hughes “several
times to stop and to leave and to get out.”

¶7 Hughes told Mother that “it didn’t matter” whether she
“wanted to be with him, that nobody could have [her] but him,”
and “that the only way for him to leave” would be for Mother to

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“call[] the cops.” He then “kind of backed up a little bit” and told
Mother “how it was the best thing to do to be together” and that
they “couldn’t be apart anymore.” Mother testified that Hughes
also said that if the police came, he would “bang it out”; that
Hughes “pulled his shirt up”; and that when he did, she saw “the
handle of a gun in his pants.” Hughes then pushed Mother against
the wall again, and she continued to beg him to leave and let her
go.

¶8 At that point, Middle Daughter also asked Hughes to
leave. Hughes “lunged for her,” saying, “Shut up. You’re my
daughter. . . . [T]his has nothing to do with you. Don’t talk to me
like that. This is none of your business.” As Hughes moved
toward Middle Daughter, Mother opened the hotel room door,
stepped into the hallway, and, while holding the door open and
“trying to be loud so somebody could hear,” said, “You have to
leave.” Hughes followed Mother into the hallway, and she closed
the door.

¶9 In the hallway, Mother—more loudly now—kept “telling
[Hughes] to leave,” and Hughes “kept saying he wasn’t leaving.”
Hearing “yelling down the hall,” including from an “angry,”
“raised” male voice, the hotel’s front desk manager (Manager)
came and intervened, saying to Hughes, among other things, “I’ll
tell you she doesn’t want you here. You need to just leave now.”
After some discussion, Hughes said that he would leave, and
Manager returned to her desk.

¶10 Shortly thereafter, Manager heard Hughes say angrily,
“Let’s just get in the room.” Manager then walked back down the
hall and said to Hughes, “All right. I can’t have this. And I asked
you to leave.” When Hughes replied, “No, we’re going to go in
the room,” Manager asked Mother, “Do you want him in your
room?” Mother stepped back and said, “No,” and Hughes
“reached for her.” Manager “threw [her] arm across the door
jam,” “told [Hughes] this wasn’t happening in [her] hotel,” and

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threatened to call the police. Hughes said, “Go ahead,” so
Manager asked an associate, who had remained at the front desk,
to call the police to have Hughes “escorted off of the property.”
Hughes then told Manager that he would “rent a room,” but
Manager told him she would not rent a room to him and that he
had to leave. Hughes, Mother, and Manager then “stood there
silently for a few minutes” until Hughes finally left.

Mother’s Statement to Police and the Resulting Charges

¶11 Shaken, Mother went back inside the hotel room to “calm
[the] kids down,” “make sure that they were okay,” and “get them
ready for bed.” Later that night, Mother’s mother and stepfather
came to the hotel room, learned of the incident, and encouraged
Mother to report the incident to the police, which she did.

¶12 Initially, Mother spoke on the phone to a police dispatch
operator. Mother began by telling the operator that she and
Hughes had “a standing order, mutual restraining order.” She
then explained what had occurred earlier in the evening. Toward
the end of the call, Mother volunteered that Hughes might “have
a gun,” that she believed this “[b]ecause he told [her] he did,” but
that she “[d]id [not] ever see the gun.”

¶13 An officer (Officer) was dispatched to the hotel, where he
interviewed Mother. Mother recounted to Officer the incident
with Hughes. Mother told Officer, as she had the dispatch
operator, that while she believed, because of what Hughes had
said, that he had been carrying a gun, she had not actually seen a
gun.

¶14 Following Officer’s initial investigation on the night of the
incident, a detective (Detective) was assigned to conduct an
additional investigation. As part of his additional investigation,
Detective also interviewed Mother. In that interview, Mother told
Detective that during the incident, Hughes had “pulled up his
shirt and exposed the handle [of a gun] in his waistband.” Mother

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told Detective that Hughes “did not touch [the gun]” and that
“she was not in fear for her own personal safety” because “she
didn’t feel that the gun was there for her.” Yet Mother said that
she was concerned about the gun because when she had
threatened to call the police, Hughes had said he was prepared to
“bang it out.”

¶15 Following Officer’s and Detective’s investigations, Hughes
was charged with criminal trespass, sexual battery, unlawful
detention, threatening with or using a dangerous weapon in a
fight or quarrel, and four counts of domestic violence in the
presence of a child. The case proceeded to trial.

The State’s Case at Trial

¶16 At trial, Mother, Oldest Daughter, Middle Daughter,
Manager, and Detective testified for the State. At the beginning of
the trial, the prosecutor and Counsel discussed with the court
whether evidence of the mutual restraining order between
Mother and Hughes was admissible. Before the court ruled on
that issue, however, the prosecutor proposed that

instead of mentioning the mutual restraining order
or admitting a certified copy of [it], . . . [the parties]
instead allow [Mother] to state . . . that she had
communicated with [Hughes] previously, that she
did not want him to be around her and that she did
not want to communicate with him in any fashion
but text and to do drop offs instead of physically
coming into her home or where she was at.

Counsel said that he had “no problem with [Mother] saying that.”
Thus, the court ruled that “the parties [could] talk about the
understanding [Mother and Hughes] had between each other . . .
[and] facts that would give rise to that understanding” but that
the parties and the court would need to “have a chat” before
anyone “raise[d] the issue of a mutual restraining order.”

20220640-CA 6 2024 UT App 168
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¶17 Mother’s and Manager’s testimony about the incident at
the hotel was consistent with the description of that incident
outlined above. In accordance with the court’s ruling, Mother did
not mention the mutual restraining order but, instead, testified
that she and Hughes had a “mutual understanding” that there
was to be “no direct contact between” them and “no
communication, unless it was in regards to the children via text.”
She also testified that she had “made clear to [Hughes] that [she]
didn’t want him . . . to be around [her] physically.”

¶18 Oldest Daughter testified that after Mother and the
daughters returned from the pool, Hughes came to the hotel
room, knocked on the door, and came into the room without
asking for Mother’s permission. She explained that after Hughes
came into the room, he tried “to convince [Mother] to come back
to the house” but that Mother “didn’t want to go back.” Oldest
Daughter stated that Mother had asked Hughes to leave “multiple
times” but that he did not leave. Oldest Daughter recounted that
she sat on one of the beds and cried as she listened to her parents’
exchange. She testified that although the curtain had been
partially pulled, she could see Mother and Hughes and that she
witnessed Hughes trying to “grab,” “touch,” and “kiss” Mother
and Mother “crying the whole time” and asking him to stop and
to leave.

¶19 Middle Daughter confirmed that Hughes came to the hotel
room after Mother and the daughters returned from swimming.
She said that “there was a little bit of conflict” between Hughes
and Mother and that Mother “asked him to leave.” Middle
Daughter explained that, rather than leave, Hughes “hugg[ed]”
Mother and, eventually, held Mother “against the wall.” Middle
Daughter remembered Mother crying and continuing to ask
Hughes to leave. Middle Daughter testified that she also asked
Hughes to leave and that when she did, “he turned and faced” her
and told her that she “shouldn’t interfere and that it wasn’t [her]
place.” During that exchange, Middle Daughter said, Mother

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“went and opened the door.” Middle Daughter testified that she
then observed Mother and Hughes go into the hallway, where
they continued to be “loud.”

¶20 Prior to trial, Oldest Daughter and Middle Daughter had
been interviewed at the Children’s Justice Center (CJC). During
their respective interviews, each had claimed to either not
remember or not know of anything problematic about Hughes’s
visit to the hotel room. At trial, each acknowledged that her
statement to the CJC interviewer contradicted her trial testimony.
Oldest Daughter explained the discrepancy by saying that she
had been “uncomfortable talking with” the CJC interviewer and
that she now “just want[ed] it to be over” because she was “tired
of going back and forth” between Mother and Hughes and
wanted to “just . . . see [her] dad whenever [she] want[ed].”
Middle Daughter explained that when she had been interviewed
at the CJC, she “was still processing what [had] happened” and
“wasn’t ready to speak about what [had] happened.”

Hughes’s Motion for a Directed Verdict

¶21 After the State rested, Hughes moved for a directed verdict
on two of the domestic violence in the presence of a child charges,
arguing that the State had “not [made] any attempt” to prove that
domestic violence had taken place in the presence of Son and
Youngest Daughter. Hughes also moved for a directed verdict on
the charge of threatening with or using a dangerous weapon in a
fight or quarrel. The court denied the motions, and Hughes
proceeded to put on his case.

Hughes’s Case at Trial

¶22 Counsel called Son to testify. Son testified that when he
and Hughes called Mother after the basketball practice, Mother
told Hughes that he could join the family for swimming. Son
explained that when he and Hughes arrived at the pool, they did
not see Mother and the daughters and, thus, went to the hotel

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room. Son stated that he knocked on the door and Mother
answered, that Son then “walked in” and Hughes “asked if he
could have a hug and a kiss and if he could come in and talk to
[Mother] for a second,” and that Mother said, “Yes,” and kissed
Hughes. Son testified that thereafter, it was Mother who “got
loud” and that Hughes was “trying to calm her down.” Son also
testified that when Hughes and Mother went into the hallway, he
could hear Mother “getting even louder.”

¶23 Hughes also testified. He explained that although Mother
had moved out, she would still occasionally “stay at [his] house”
and that the two of them “would still do stuff,” “were still
intimate,” and were “still friends and whatnot.” He stated that
Mother had “left [him] three or four times before” but “always
came back” and that “that’s what [they] do, makeup and
breakup.” Like Son, Hughes testified that on the day of the
incident at the hotel, Mother told him he could bring Son and join
her and the daughters for some “family time” at the pool. He
testified that when he and Son ended up at the hotel room, Mother
told him he could come in and that when he asked Mother for a
kiss, “she walked up and kissed [him].” Hughes stated that after
he suggested that it would be good for Youngest Daughter to
spend more time with him, Mother started to “scream[] and
yell[]” at him. According to Hughes, when Mother had lived with
him, she “raised her voice a lot in front of . . . [the] children,” and
he would try to calm things down by taking Mother outside to
talk. Similarly here, Hughes explained, he spent the rest of the
encounter in the hotel “trying . . . to deescalate” the situation. He
maintained that he never held Mother against a wall or groped
her and that she never cried or told him to leave.

¶24 Counsel showed video recordings of Oldest Daughter’s
and Middle Daughter’s CJC interviews. Counsel also played a
recording of Mother’s call to the police dispatcher, thereby
showing that the call was not placed until “a couple hours” after
the incident, that Mother’s stepfather dialed the number and

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spoke first with the dispatcher, that Mother told the dispatcher
that she had not seen a gun on Hughes, and that Mother’s
description to the dispatcher of Hughes’s conduct at the hotel was
not as specific as her later description of that conduct when she
testified at trial. The recording also contained Mother’s statement
that she and Hughes had “a standing order, mutual restraining
order.”

The Verdict, Motions to Arrest Judgment, and Appeal

¶25 The jury found Hughes guilty of criminal trespass, sexual
battery, unlawful detention, and all four counts of domestic
violence in the presence of a child. It acquitted him of threatening
with or using a dangerous weapon in a fight or quarrel. Following
the verdict, Hughes moved to arrest judgment on each charge for
which he had been found guilty. The court denied the motions
and entered judgment against Hughes. Hughes now appeals.

ISSUES AND STANDARDS OF REVIEW

¶26 Hughes first argues that the State presented insufficient
evidence to support his convictions. As articulated, this argument
has two parts. First, Hughes asserts that Mother’s, Oldest
Daughter’s, and Middle Daughter’s testimony was inherently
improbable and should therefore be disregarded and that the
remaining evidence is insufficient to support any of his
convictions. Second, Hughes asserts that—with or without
Mother’s, Oldest Daughter’s, and Middle Daughter’s testimony—
there is insufficient evidence to support his conviction of
committing domestic violence in the presence of Son. “For a
sufficiency of the evidence challenge, we will . . . reverse the fact
finder’s verdict [only] when the evidence is sufficiently
inconclusive or inherently improbable such that reasonable minds
must have entertained a reasonable doubt that the defendant
committed the crime for which he or she was convicted.” State v.

20220640-CA 10 2024 UT App 168
State v. Hughes

Barnes, 2023 UT App 148, ¶ 16, 542 P.3d 108 (cleaned up), cert.
denied, 544 P.3d 459 (Utah 2024).

¶27 Hughes also contends that he received constitutionally
ineffective assistance of counsel when Counsel introduced the full
recording of Mother’s report to the police dispatcher without
redacting Mother’s reference therein to a mutual restraining order
between Mother and Hughes. “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. Craft, 2017 UT App 87, ¶ 15, 397 P.3d 889
(cleaned up).

ANALYSIS

I. Sufficiency of the Evidence 2

¶28 Hughes’s initial contention is that the State presented
insufficient evidence to support any of his convictions because
Mother’s, Oldest Daughter’s, and Middle Daughter’s testimony
was inherently improbable. When a sufficiency of the evidence
challenge is based on the inherent improbability of certain
evidence, our analysis proceeds in two parts. See State v. Barnes,

2. The State asserts that Hughes failed to preserve the sufficiency
of the evidence claims he raises on appeal. Because the merits of
these claims can be easily resolved in favor of the State, we choose
not to address their preservation. See State v. Kitches, 2021 UT App
24, ¶ 28, 484 P.3d 415 (“[I]f the merits of a claim can easily be
resolved in favor of the party asserting that the claim was not preserved,
we readily may opt to do so without addressing preservation.”).
Additionally, because we address the merits of Hughes’s
sufficiency of the evidence claims, we need not address Hughes’s
alternative argument that Counsel provided ineffective assistance
by failing to preserve those claims.

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State v. Hughes

2023 UT App 148, ¶ 19, 542 P.3d 108, cert. denied, 544 P.3d 459
(Utah 2024). We first “analyze the evidence that [the defendant]
claims is inherently improbable and determine whether . . . [that]
evidence is of such poor quality that it should be disregarded.” Id.
(cleaned up). “If we determine that the challenged [evidence] is
inherently improbable, we then determine [whether] sufficient
evidence remains under which a reasonable jury could have
convicted.” Id. (cleaned up). “On the other hand, if we determine
that the challenged evidence is not inherently improbable, our
sufficiency-of-the-evidence analysis will include the challenged
evidence.” Id. ¶ 20.

¶29 Here, except as to his conviction of domestic violence in the
presence of Son, Hughes does not contend that the evidence is
insufficient when the challenged evidence is included in the
sufficiency-of-the-evidence analysis. Thus, because we determine
that the evidence challenged here was not inherently improbable,
we thereafter need only determine whether the charge of
domestic violence in the presence of Son was supported by
sufficient evidence when taking all of the evidence into account.

¶30 With that backdrop, we now address Hughes’s inherent
improbability argument. We then address whether there is
sufficient evidence to support Hughes’s conviction of domestic
violence in the presence of Son.

A. Inherent Improbability

¶31 Hughes asserts that Mother’s, Oldest Daughter’s, and
Middle Daughter’s testimony was inherently improbable and
must therefore be disregarded. Because the State’s case against
Hughes hinged on this testimony, he further asserts that when
this evidence is disregarded, there remains insufficient evidence
to support his convictions.

¶32 In State v. Robbins, 2009 UT 23, 210 P.3d 288, our supreme
court held that “when [a] witness’s testimony is inherently

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improbable, the court may choose to disregard it.” Id. ¶ 16.
However, “Utah appellate courts have noted that labeling a
witness’s testimony as ‘inherently improbable’ should be
reserved for rare cases. This is because appellate courts typically
do not make credibility determinations, and typically resolve any
arguments about conflicts in the evidence in favor of the jury
verdict.” Barnes, 2023 UT App 148, ¶ 23. Not surprisingly,
therefore, “[i]t is difficult to successfully establish [an inherent
improbability] claim on appeal.” State v. Cady, 2018 UT App 8,
¶ 18, 414 P.3d 974, cert. denied, 421 P.3d 439 (Utah 2018).

¶33 When presented with an inherent improbability claim, we
“consider the situation as a whole, including the context in which
the testimony was offered.” Barnes, 2023 UT App 148, ¶ 24.
“Because other evidence may support testimony that would
otherwise be considered improbable on its own, . . . testimony will
generally be disregarded only when no corroborating evidence
exists.” State v. Jok, 2021 UT 35, ¶ 31, 493 P.3d 665. The inherent
improbability standard generally is not satisfied by “the mere
existence of a conflict in the evidence.” In re S.M., 2024 UT App
135, ¶ 33 (cleaned up). “Nor is this standard satisfied where the
appellant raises garden-variety credibility questions, such as
which witness to believe, or which version of a witness’s
conflicting account to believe.” Id. (cleaned up).

¶34 However, “there are three hallmarks of inherently
improbable testimony that courts have often considered in their
analysis: material inconsistencies, patent falsehoods, and lack of
corroborating evidence.” Barnes, 2023 UT App 148, ¶ 24 (cleaned
up). “But while these three [hallmarks] are beneficial, they are not
controlling.” In re S.M., 2024 UT App 135, ¶ 32 (cleaned up). “The
ultimate question in an inherent improbability analysis is whether
the testimony of the witness runs so counter to human experience
that it renders the testimony inappropriate for consideration in
sustaining a finding of guilt.” Id. (cleaned up).

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¶35 Hughes forwards four arguments for application of the
inherent improbability doctrine here. Each is far from convincing.

¶36 First, Hughes contends that the whole of Mother’s
testimony is inherently improbable because Mother “was
inconsistent regarding the involvement of a gun in the dispute.”
Specifically, he points to the contrast between Mother’s statement
to the dispatcher that she did not see a gun but thought Hughes
might have one because “he told [her] he did” and her testimony
at trial that she saw “the handle of a gun in [Hughes’s] pants”
when he pulled up his shirt and said he was prepared to “bang it
out” with police. But this discrepancy does not amount to
“material inconsistencies” that might trigger the inherent
improbability doctrine.

¶37 The only Utah case in which a witness’s testimony has been
deemed inherently improbable based on material inconsistencies
is State v. Robbins, 2009 UT 23, 210 P.3d 288. The witness in Robbins
was a minor whose testimony contained “many inconsistencies”
as well as “patently false statements . . . to cover up [those]
inconsistencies”—including a “made up . . . story about a hearing
problem”—and “no other evidence point[ed] to [the defendant’s]
guilt.” Id. ¶¶ 1, 22, 23. In contrast, Hughes identifies a single
discrepancy between Mother’s various accounts of the incident,
he identifies no testimony that was patently false, and other
witnesses corroborated both Mother’s testimonial narrative
generally as well as her specific testimony bearing on the elements
of the crimes for which Hughes was convicted. In short, Hughes
has not shown that Mother’s testimony was inherently
improbable; he has identified a garden-variety credibility
question regarding Mother’s divergent accounts of whether she
actually saw a gun.

¶38 Second, Hughes asserts that Oldest Daughter’s and Middle
Daughter’s “CJC video interviews were credible, making their
trial testimony inherently improbable.” However, the fact that

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Oldest Daughter and Middle Daughter related in their CJC
interviews that they did not remember or recognize anything
problematic about Hughes’s visit to the hotel room and then
testified differently at trial does not make their trial testimony
inherently improbable. In State v. Prater, 2017 UT 13, 392 P.3d 398,
“three witnesses gave pre-trial statements that conflicted with
their trial testimony.” Id. ¶ 37. Yet our supreme court held that
those inconsistencies “by themselves [were] insufficient to invoke
the inherent improbability exception.” Id. ¶ 39 (cleaned up). The
court pointed to the fact that “each witness admitted at trial that
he or she initially lied to police” and that each witness provided
at trial a plausible explanation consistent with “human
experience” for why he or she initially lied to police. Id. Similarly
here, Oldest Daughter and Middle Daughter each acknowledged
the discrepancy between her CJC interview and her trial
testimony. And their respective explanations that they were
uncomfortable and not ready to talk to the CJC interviewer about
the discord they witnessed were plausible and consistent with
human experience, especially considering the girls’ ages. Thus,
we conclude here that “[t]he question of which version of [their]
stories was more credible [was] the type of question we routinely
require juries to answer.” Id.

¶39 Third, Hughes suggests that Mother’s, Oldest Daughter’s,
and Middle Daughter’s testimony was inherently improbable
because “[t]he custody dispute between [Mother] and Hughes
provided a motivation for [Mother] and the daughters to accuse
Hughes of crimes he did not commit.” In support of this apparent
assertion, Hughes observes that the Robbins case arose in the
context of a custody dispute, see 2009 UT 23, ¶ 24, that the trial
court in Robbins recognized that “there is nothing more
emotionally driven than divorce proceedings involving children
and custody,” id. (cleaned up), and that our supreme court in State
v. Jok, 2021 UT 35, 493 P.3d 665, said that a witness in Robbins
“likely had motivation to lie because of the hostility that existed
between her divorced parents,” id. ¶ 34. In short, Hughes suggests

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that a witness’s motive to lie ought to be included in an inherent
improbability analysis and that Mother and the daughters had a
motive to lie. While we cannot say that Hughes is wrong as a
categorical matter about including a witness’s motive to lie in an
inherent improbability analysis, see State v. Barnes, 2023 UT App
148, ¶ 24, 542 P.3d 108 (stating that when analyzing a claim of
inherent improbability, “courts are to consider the situation as a
whole”), cert. denied, 544 P.3d 459 (Utah 2024), Mother’s and the
daughters’ motives to lie do nothing to move the needle in our
analysis here. Ordinarily, whether a witness’s motive to lie
produced false testimony is a question for the finder of fact. See
Prater, 2017 UT 13, ¶ 41 (“Whether a witness testifies truthfully in
light of favorable treatment offered by the State goes to the weight
and credibility of the testimony.”). “And we will not act as a
second trier of fact.” Id.

¶40 Finally, Hughes asserts simply that “a reasonable jury
could not have credited the inconsistent testimony from [Mother]
and the daughters over the testimony from Hughes and [Son],”
and he follows this assertion with nothing more than a cursory
summary of his and Son’s testimony. Merely identifying a conflict
in the evidence is wholly insufficient to establish that the evidence
with which one disagrees is inherently improbable. See State v.
Workman, 852 P.2d 981, 984 (Utah 1993) (“When the evidence
presented is conflicting or disputed, the jury serves as the
exclusive judge of both the credibility of witnesses and the weight
to be given particular evidence.”). Hughes’s final argument
therefore also does nothing to move the needle in our inherent
improbability analysis here.

¶41 For the foregoing reasons, we reject Hughes’s inherent
improbability argument and include the whole of the evidence
admitted at trial as we consider whether Hughes’s convictions
were supported by sufficient evidence. And because Hughes
contends that only his conviction of domestic violence in the
presence of Son was unsupported by sufficient evidence when the

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State v. Hughes

challenged evidence is included in the sufficiency-of-the-evidence
analysis, we determine that Hughes’s other convictions were
supported by sufficient evidence. We now turn to the question of
whether in light of all the evidence admitted at trial, there was
sufficient evidence to support Hughes’s conviction of domestic
violence in the presence of Son.

B. Sufficiency

¶42 “In considering an insufficiency-of-evidence claim, an
appellate court will not reverse a jury verdict provided it can
conclude that some evidence exists from which a reasonable jury
could find that the elements of the crime have been proven
beyond a reasonable doubt.” State v. Rivera, 2019 UT App 188,
¶ 28, 455 P.3d 112 (cleaned up), cert. denied, 458 P.3d 749 (Utah
2020). To prove the crime of domestic violence in the presence of
a child, the State must establish that a domestic violence offense
occurred and that it occurred in the presence of a child. See Utah
Code § 76-5-114. 3 Hughes’s convictions of criminal trespass,
sexual battery, and unlawful detention each qualify as domestic
violence offenses. See id. § 77-36-1(4). And “‘[i]n the presence of a
child’ means . . . in the physical presence of a child . . . or . . . having
knowledge that a child is present and may see or hear an act of
domestic violence.” Id. § 76-5-114(1)(a)(iv).

¶43 Hughes contends that there was insufficient evidence that
his crimes of domestic violence occurred in the presence of Son
because Son’s “clear and firm testimony that he did not observe
or hear any domestic violence constitutes reasonable doubt as a
matter of law.” However, Son acknowledged that he arrived at
and entered the hotel room with Hughes, that he remained in the

3. The content of this section was renumbered without material
change after the offense in this case. Compare Utah Code § 76-5-
114, with id. § 76-5-109.1 (2019). We cite the current version for
convenience.

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State v. Hughes

room during the relevant time, and that he could hear Mother and
Hughes’s interactions in both the room and the hallway. This
evidence and reasonable inferences that can be drawn from it
provide ample basis for a finding that Hughes knew Son was
present and might see or hear the crimes of domestic violence of
which Hughes was convicted. See State v. Diviney, 2021 UT App
106, ¶¶ 21, 23, 500 P.3d 883 (concluding that there was sufficient
evidence of domestic violence in the presence of a possibly
sleeping child where the defendant did not dispute that he knew
the child was there and the victim of domestic violence testified
that “even with [the child’s bedroom] door closed, one could hear
what was happening in other parts of the apartment”), cert. denied,
505 P.3d 55 (Utah 2022). We therefore reject Hughes’s challenge to
the sufficiency of the evidence as it relates to the charge of
domestic violence in the presence of Son.

II. Ineffective Assistance of Counsel

¶44 Hughes also contends that he received ineffective
assistance of counsel because Counsel introduced at trial the
entire recording of Mother’s report to the police dispatcher,
including her reference to “a standing order, mutual restraining
order” between Hughes and Mother. We disagree.

¶45 “To prevail on a claim of ineffective assistance of counsel,
a criminal defendant must show that (1) ‘counsel’s performance
was deficient’ and (2) ‘the deficient performance prejudiced the
defense.’” State v. Miller, 2023 UT App 85, ¶ 25, 535 P.3d 390
(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)), cert.
denied, 540 P.3d 78 (Utah 2023). “A defendant’s inability to
establish either element defeats a claim for ineffective assistance
of counsel.” Id. (cleaned up). Hughes’s ineffective assistance claim
fails the second element of the test.

¶46 Under the second element of the ineffective assistance of
counsel test, the appellant must show that defense counsel’s
deficient performance prejudiced the defense by “depriv[ing] the

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State v. Hughes

defendant of a fair trial, a trial whose result is reliable.” Strickland,
466 U.S. at 687. Deficient performance is prejudicial when it
creates “a reasonable probability that the outcome of . . . [the] case
would have been different absent counsel’s error.” State v. Scott,
2020 UT 13, ¶ 43, 462 P.3d 350.

¶47 Hughes contends that Counsel’s failure to redact Mother’s
reference to “a standing order, mutual restraining order” from the
recording of Mother’s report before playing it for the jury
prejudiced his defense for four reasons: (1) the evidence against
Hughes was weak; (2) existence of the mutual restraining order
“carrie[d] an implication of previous abuse”; (3) existence of the
mutual restraining order “provided the jury with a reason that
Hughes should be punished,” regardless of whether he had
committed the crimes charged; and (4) existence of the mutual
restraining order “conflicted with Hughes’s testimony that he and
[Mother] were still speaking to each other and even considering
reconciliation” at the time of the hotel incident. We are
unconvinced.

¶48 First, Hughes is mistaken in asserting that the evidence
against him was weak. Mother, Oldest Daughter, Middle
Daughter, and Manager provided mutually corroborating
testimony from which the jury could conclude that Hughes held
Mother against a wall against her will, groped her breast and
buttocks, and refused to leave when asked. That Hughes and Son
testified to a different version of those events does not mean that
the evidence against Hughes was weak.

¶49 Second, the existence of a mutual restraining order did
not necessarily imply previous abuse. For one thing, because the
restraining order was mutual, the jury might easily have believed
that it was put in place for reasons other than abuse. And Hughes
himself testified to a history of discord between himself and
Mother, to which the jury would most likely have attributed the
need for a mutual restraining order.

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State v. Hughes

¶50 Third, the gravity of the charges for which Hughes was
convicted—sexual battery, unlawful detention, and criminal
trespass—substantially outweighs the gravity of merely being in
a room from which one is proscribed from being. We therefore
believe there is no reasonable likelihood that a jury otherwise
unconvinced of a defendant’s guilt would nevertheless return a
verdict against him on these charges merely to punish him for
being where he should not have been.

¶51 As to Hughes’s final point, we acknowledge that the
existence of a mutual restraining order might be viewed as
conflicting with his testimony that he and Mother were on
speaking terms and lent credibility to Mother’s testimony that she
did not want to talk to Hughes or have him in the hotel room.
However, the daughters’ testimony about Mother crying and
repeatedly asking Hughes to leave, as well as Manager’s
testimony that Mother did not want Hughes to be there, already
corroborated Mother’s testimony on this point to such an extent
that we believe there is no reasonable probability of a different
outcome for Hughes had the jury not heard a fleeting reference to
a mutual restraining order.

¶52 For the foregoing reasons, we conclude that Hughes has
not satisfied the prejudice element of his ineffective assistance of
counsel claim, and we therefore reject that claim.

CONCLUSION

¶53 As to Hughes’s challenge to the sufficiency of the evidence,
we conclude that Mother’s, Oldest Daughter’s, and Middle
Daughter’s testimony was not inherently improbable and that the
evidence at trial, including that testimony, was sufficient to
support each of Hughes’s convictions. As to Hughes’s ineffective
assistance of counsel claim, we determine that any deficient
performance on the part of Counsel did not prejudice Hughes’s
defense. For these reasons, we affirm Hughes’s convictions.

20220640-CA 20 2024 UT App 168