State v. Draper

2024 UT App 152

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TYLER ROBERT DRAPER,
Appellant.

Opinion
No. 20210738-CA
Filed October 24, 2024

Seventh District Court, Monticello Department
The Honorable Don M. Torgerson
No. 201700104

Staci Visser and Ann Marie Taliaferro,
Attorneys for Appellant
Sean D. Reyes, William M. Hains, Hwa Sung
Doucette, and Michael Palumbo,
Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.

TENNEY, Judge:

¶1 Tyler Draper was charged with six counts of rape and one
count of aggravated assault. The charges were based on sexual
encounters that Draper had with four young women that Draper
knew from his hometown or the surrounding area. At the close of
a four-day trial, the jury convicted Draper of four counts of rape,
but it acquitted him on the remaining charges.

¶2 Draper appeals his convictions, raising several challenges
to evidentiary rulings from the district court and several claims of
ineffective assistance of counsel. Contemporaneous with his brief,
Draper filed a request for a rule 23B remand in which he seeks to
State v. Draper

create a record to support many more ineffective assistance
claims. For the reasons set forth below, we affirm Draper’s
convictions and deny his request for a rule 23B remand.

BACKGROUND

Draper’s Relationships and Sexual Encounters with the Victims

¶3 In 2020, Tyler Draper was arrested and charged with six
counts of rape and one count of aggravated assault. 1 Each count
involved a young woman whom Draper had dated or had been
friends with during high school or in the years immediately
afterward. 2

1. The State originally charged Draper with a seventh rape count
based on an additional incident with another alleged victim, but
that charge was dropped prior to trial.

2. The parties have referred to Draper’s accusers with
pseudonyms in their briefs, and we’ll use those same pseudonyms
in this opinion.
We note that the jury convicted Draper of rape charges
relating to three women, but it acquitted Draper of the rape charge
relating to a fourth, who’s been referred to as Tori. As discussed
below, several of the issues on appeal relate to laws discussing the
rights of “victims.” And as also discussed, several of the issues
involve actions taken by various combinations of the four young
women (including Tori). For simplicity of narrative, we’ll refer to
the four collectively as the “victims” (as opposed to “alleged
victims” or instead differentiating when Tori was involved),
while again acknowledging here that Draper was not found guilty
of raping Tori.
Finally, although the jury acquitted Draper on the count
relating to Tori, we’ll briefly recount her allegations below
because they have some relevance to some of the issues raised on
appeal and have been discussed by the parties in their briefs.

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State v. Draper

¶4 We recount the relevant circumstances surrounding each
victim and her interactions with Draper below. In doing so, we’ll
“recite the facts from the record in the light most favorable to the
jury’s verdict and present conflicting evidence only as necessary
to understand issues raised on appeal.” State v. Oreilly, 2024 UT
App 79, n.1, 550 P.3d 500 (quotation simplified), cert. denied, Sept.
12, 2024 (No. 202040790). Because this case resulted in a mixed
verdict, wherein Draper was convicted on some charges but
acquitted on others, we’ll indicate whether particular allegations
resulted in a conviction.

¶5 Helen. Helen and Draper are both from Monticello, which
is a small town in southern Utah. Helen and Draper met in the
summer of 2015 and started dating sometime later that year when
Helen was a junior and Draper was a sophomore in high school.
Helen and Draper began having consensual sex a month or two
into their relationship. Helen later alleged that Draper had sexual
intercourse with her on two occasions without her consent, and
the jury convicted Draper of rape for each incident.

¶6 The first encounter occurred one night while Draper was
visiting Helen at a chiropractor’s office where she worked after
hours doing the nightly cleaning. When Draper knocked on the
door, Helen invited him in to “just sit with [her].” When Helen
began cleaning again, Draper “stopped [her] and pushed [her]
onto” a massage bench and started kissing her. Helen pushed
Draper away and told him that she didn’t want “to do this right
now” because she was at work. Draper tried to persuade her by
saying “they didn’t have cameras,” so “no one was going to find
out and nobody would know.” But Helen continued “pushing
him and saying, no, [she] didn’t want to do it there, because it was
[her] work.” Draper then “pushed” her so that she was “laying
flat on [her] back,” after which he pulled her jeans down and had
sexual intercourse with her. Helen “just froze” and “just laid
there” and cried during the encounter. After Draper was done, he
“got up, pulled his pants back up[,] . . . buckled his belt and said,
‘I have to leave now.’”

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State v. Draper

¶7 Helen continued dating Draper after the incident in the
chiropractor’s office, and she also continued having consensual
sex with him. But another nonconsensual encounter happened a
couple of months later while the two were alone at Draper’s
house. Helen “was sitting on the arm of the couch in his living
room” when “he pushed [her] down onto the couch, so [she] was
laying on [her] back.” Helen didn’t really understand what he was
doing and “curled up into a ball in the fetal position.” At that
point, Draper “grabbed [her] knees, pulled them back over the
arm of the couch, and pulled [her] pants down and held [her] legs
down.” Helen started “wiggling back and forth and trying to get
out from under him,” telling Draper that she didn’t want to have
sex “because at any moment any of his family members could
walk into the house.” Despite her protests, Draper proceeded to
have sexual intercourse with her.

¶8 At trial, Helen did not offer much detail about how their
relationship progressed after this incident, but she did say that the
two broke up in “the spring of 2017.”

¶9 Tori. Tori met Draper in July 2017. Tori was from the
nearby town of Blanding, and Draper would often “sneak out”
with other friends and meet her there. This went on for a few
weeks, and Tori later said that, on these occasions, the two would
“make out” and sometimes touch each other’s genitals. But Tori
also said that she was “very clear” with Draper that she “did not
want to have sex” with him until she “was over 18” and that she
had told Draper this “multiple times.” Tori later testified that on
one particular occasion, Draper had sexual intercourse with her
even though she “told him no.” Tori claimed that after Draper
finished, she told him that “it was wrong” and that she “didn’t
like that he had done that.” She said that in response, Draper told
her that “he was sorry.” Tori said that their relationship ended a
short time later. The jury acquitted Draper of the rape charge that
was based on this allegation.

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State v. Draper

¶10 Nora. Nora met Draper in October 2017, shortly after she
moved to Monticello with her family. The two started out as
friends, but by November or December of 2018, they were a
couple. At that time, Nora was a junior in high school. Draper was
attending college elsewhere in the state, but he would return to
Monticello “every weekend.” As their relationship progressed,
the two became “more touchy.” They would “make out” and
Draper would sometimes “try to grab” Nora’s “boobs” and
“butt.” According to Nora, Draper “started to kind of push . . .
how far he could go” until Nora “would say . . . stop.”

¶11 Nora later claimed that Draper had nonconsensual sex
with her on two occasions, and Draper was charged with two
counts of rape, one based on each alleged incident. The jury
acquitted Draper on the allegation relating to the first incident,
but it convicted him on the second.

¶12 The first incident occurred in December 2018. According to
Nora’s testimony at trial, Nora and Draper were watching a show
in his basement and began kissing. Nora said that Draper tried to
take her pants off but that she resisted. Nora said that the two
eventually ended up in a spare bedroom and engaged in some
“grinding.” But Nora said that she repeatedly told Draper that she
didn’t want to have sexual intercourse and that Draper repeatedly
assured her that they wouldn’t. According to Nora, however, she
then felt “penetration.” When Nora told him, “I don’t want to do
this,” Draper told her that it wasn’t actually sex but was instead
“docking.” Nora later explained that she was naïve as to the
specifics of sex so she was inclined to trust him. She also later
testified that she didn’t “remember much” about what happened
during the remainder of this encounter but that she did
“remember just crying.” 3

3. At trial a few years later, Nora expressed her understanding
that the term “docking” can refer to a situation in which the “penis
(continued…)

20210738-CA 5 2024 UT App 152
State v. Draper

¶13 The second incident (which resulted in a conviction)
occurred in March 2019. On the night in question, Nora and
Draper decided to take a late-night drive to a restaurant in Moab.
On the drive, Nora “was leaning on his arm” and “occasionally
kissing his cheek.” At some point, Draper “took that as an
invitation” and pulled over to the side of the road. Draper then
moved over to Nora’s side of the car and proceeded to hold her
hands down and take off her pants. Nora responded by “fighting
him,” “hitting him in the face,” and “saying, ‘Stop. I don’t want to
do this right now.’” But Draper persisted, managed to get his
pants off and her pants down below her knees, and then began
“penetrating” her while “holding [her] hands down.” Nora
continued to fight back and was able to hit Draper in the head and
face. Nora later testified that “[h]is face would change in this way
where he couldn’t hear” and that it “seem[ed] liked he just didn’t
care.” Nora could not later recall if Draper “finished” or instead
“just snapped back to reality,” but regardless, she said that the
incident left her scared and wanting to immediately go home.

¶14 Around June 2019, the two broke up. After their
relationship ended, Nora told her sister what Draper had done to
her. She also told the father of one of her friends, who suggested
that Nora go to a victim advocate resource center (the Center).
Nora did, and she later testified that this was the first professional
help that she sought out.

¶15 Diane. Diane became close friends with Draper at the end
of 2019 while she was a junior in high school and Draper was in
college. By that time, some of the details about Nora and Draper’s
relationship had become public knowledge—including Nora’s
claim that Draper had raped her. Diane took it upon herself to
“stand up for [Draper] when other people said negative things
about him,” and she also began to talk “a lot of crap” about Nora.

enters a vagina just one time.” Nora also testified that while she
initially thought this didn’t count as sex, she later came to believe
that “docking and sex were the same thing.”

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Though Diane and Draper talked or communicated through texts
or electronic apps “probably almost every day,” Diane later said
that she never had any romantic interest in Draper.

¶16 In March 2020, Diane was “hanging out with some friends”
one night at Lloyds Lake near Monticello when Draper reached
out about getting together. Draper soon joined the group at the
lake, after which he offered Diane a chance to drive his truck.
Since Diane was too short to see over the dash, she sat on Draper’s
lap to steer. The two drove on some nearby gravel roads for a
while, but while heading back to the group, Draper “reached over
and took control of the truck,” taking them down the hill away
from the group to a nearby pavilion. They stayed in the truck and
talked for a minute, but then Draper “just kind of . . . changed, like
he wasn’t [himself] anymore”—almost as if he was “possessed.”

¶17 According to Diane’s testimony at trial,

[T]hat’s when he like reached over and grabbed my
throat and used it as like leverage to put me in the
backseat of his truck. And I don’t really know, like
can’t really explain like how he put me in the
backseat because I was like freaking out. . . .

And when he got in the backseat of the truck
he got back there like with his hand still on my
throat. . . . And then he pulled my shorts over and
put his penis inside my vagina. And I was like
screaming and yelling at him, like, “Tyler, like, no.
What are you doing?” Like, screaming no over and
over again. Like, “You’re stupid.” I was slapping
him. I was screaming. I was crying. Like, “Tyler,
stop. Like, you’re dumb. Like, no. Like, seriously,
it’s not funny anymore. Stop.” Like no, like over and
over again until I just like, I froze. Like, I just
couldn’t scream anymore. And he was like
throwing me around like a rag doll.

20210738-CA 7 2024 UT App 152
State v. Draper

Diane said this continued for “10-ish, 15 minutes,” after which
Draper eventually stopped. Diane knew that Draper had
ejaculated at some point because she remembered that her shorts
got wet when she sat in something she believed to be semen.
Diane said that she then crawled into the front seat, ignoring
Draper as he drove the truck back to the group. When they
arrived, Diane asked a friend to take her home. This incident
would later form the basis of one of the rape charges as well as an
aggravated assault charge. The jury convicted Draper on the rape
charge but acquitted on the aggravated assault charge.

¶18 About two months after the encounter at the lake, Diane
reached out to Nora—the same classmate that Diane had
relentlessly “bullied” earlier for accusing Draper of rape. Diane
later testified that although it was difficult to contact Nora, her
encounter with Draper had traumatized her and negatively
impacted her mental health, and Diane believed that Nora could
“help” Diane “get the help [she] needed.” After Diane reached
out, Nora referred Diane to the Center. Diane later spoke with law
enforcement as well.

Draper Waives His Preliminary Hearing

¶19 In June 2020, Draper was charged with rape and
aggravated assault based on Diane’s allegations. The following
month, additional charges were added based on the allegations
from Helen, Tori, and Nora.

¶20 In the early stages of the case, the COVID-19 pandemic was
causing disruptions to court schedules. At a hearing, Draper’s
attorney (Counsel) 4 expressed the concern that, given the number
of counts and witnesses, a preliminary hearing would be difficult

4. Draper was represented by two attorneys throughout the
proceedings below. For simplicity, we’ll refer to them collectively
as Counsel, even if certain statements or actions we’re describing
were attributable to only one of them.

20210738-CA 8 2024 UT App 152
State v. Draper

to schedule and carry out, possibly leading to a delay in getting to
trial. To avoid these problems, attorneys from both sides
suggested to the district court that, in lieu of holding a formal
preliminary hearing, the defense would be allowed to interview
the witnesses off the record (and not on the court’s time). The
attorneys suggested that Draper would agree to a “conditional
waiver” of the preliminary hearing in the meantime, and they
asked the court to schedule an arraignment a few weeks out, with
the understanding that Draper could “change [his] mind” and
request a preliminary hearing before entering a plea. Counsel
acknowledged to the court that this was a “unique procedure,”
but she then said, “I think it’s best, with COVID and the number
of counts, and the number of witnesses.” Addressing Draper
directly, the court reminded him that he had a right to a
preliminary hearing and asked whether he agreed to
“conditionally” waive it. Draper responded that, on the advice of
Counsel, he would do so.

¶21 From the available record, it appears that the parties
originally intended to allow Draper to participate in the off-the-
record interviews through “video communication.” For reasons
that are a bit unclear (but which seem to have been technical in
nature), Draper was not able to participate in those interviews.
There is also some indication that Draper had understood that
these interviews would be recorded. But for reasons that are again
unclear from the record, they were not.

¶22 A few months later, Draper appeared for the scheduled
arraignment. At that hearing, the court expressed its willingness
to continue the case again if Draper needed more time for the
witness interviews, but both sides agreed that the interviews had
already been conducted and that it was appropriate to formalize
the waiver of the preliminary hearing and proceed with the
arraignment. Before that occurred, Counsel addressed Draper
directly and made a record of what had occurred so that Draper
would “know[] exactly” what was happening. Counsel noted that
Draper had not been able to “participate in the interviews.”

20210738-CA 9 2024 UT App 152
State v. Draper

Counsel then explained that the defense attorneys had been able
to “interview the State’s witnesses, through Zoom interviews,
rather than do that by a formal preliminary hearing.” Counsel
said that both of the defense attorneys “took notes.” And Counsel
pointed out that this procedure gave the defense attorneys “more
leeway in questioning the individuals” and that they were able to
“take as much time as [they] needed.” With that understanding,
Counsel suggested to Draper and the court that it was now
appropriate to “waive the preliminary hearing” and proceed with
the arraignment. Draper did not object.

¶23 After Counsel made this record, the court addressed
Draper directly and asked him to enter pleas to each of the
charges. Draper pleaded not guilty to each charge.

Pretrial Motions

¶24 The parties filed a number of pretrial motions. Two of them
are particularly relevant for purposes of this appeal.

¶25 Victim Advocate Subpoena. Counsel issued a subpoena to
a victim advocate (Victim Advocate) from the Center who had
met with some of the victims after they came forward with their
allegations. The subpoena ordered Victim Advocate to appear
and testify at the upcoming trial, as well as to produce certain
written materials from the Center.

¶26 The Center filed a motion to quash the subpoena. There,
the Center described itself as a “rape crisis center,” and it argued
that it qualified as a “victim advocate” for purposes of Utah law,
meaning that any communications between its staff and any
victims were privileged under rule 512 of the Utah Rules of
Evidence. The Center further argued that the requested
information was likewise privileged and protected under various
other state and federal laws. Indeed, in the Center’s view, it could
not “even acknowledge that any individual [was] a recipient of
services.”

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State v. Draper

¶27 Counsel did not file a written response to the motion to
quash, but Counsel did oppose it orally on the first day of trial.
There, Counsel argued that the communications in question were
not “confidential” because there were indications that some
combination of victims had met with Victim Advocate as a group.
Counsel further noted that rule 512 has an exception to the
privilege for “exculpatory” information, and Counsel argued that
this exception applied because the defense theory involved a
“solicitation of witnesses” and collusion defense, and testimony
from Victim Advocate would therefore be relevant to defense
arguments about the victims’ “motive[s]” and “credibility.”

¶28 After arguments, the court ruled from the bench, stating
that the Center “does have a privilege, and it’s a privilege that’s
authorized by both state and federal law.” The court then ruled
that it was “unaware of any exception to the privilege” that would
apply in this case, so it accordingly granted the motion to quash
the subpoena of Victim Advocate. But the court then recognized
that “victim credibility [was] very much at issue” in this case, so
it said that in cross-examination of witnesses (including the
victims), it would allow Counsel to “delve quite extensively into”
how the victims were questioned and who was in the room with
them during their various interviews. The court further
encouraged the parties to “come up amongst [them]selves” with
a means of referring to the Center and Victim Advocate without
mentioning their names.

¶29 Notice of Intent to Call Expert Witness. Counsel filed a
notice of intent to call an expert witness (Expert) to testify about
interview protocols at the Children’s Justice Center (CJC), as well
as “SANE” examinations and “Code R” reports.5 Counsel later

5. The Children’s Justice Center provides services when “a serious
crime has occurred to a child or teenager,” and these services
often include a trauma-informed interview. Children’s Justice
Center, Salt Lake County Dist. Att’y, https://www.saltlakecounty.
(continued…)

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State v. Draper

explained that Expert had a background as a “special victim’s
detective” and would be able “to educate the jury on the
standards and practices of interviewing sexual assault victims.”
In the notice, Counsel asserted that the victims were interviewed
“numerous times,” and, on at least one occasion, some victims
had been “interviewed together,” and that from this, Expert
should be able to testify that these “deviation[s] of procedure
could impact the reliability of the witness testimony.” In the
notice, Counsel further asserted that Expert should be able to
testify that the lack of SANE examinations and Code-R reports
showed the “lack of independent physical examinations.”

¶30 The State filed a written memorandum opposing the
proposed testimony on several grounds. First, the State argued
that testimony about CJC interview protocols would be irrelevant
because the State intended to put on all of the witnesses in
question for direct testimony. Second, the State argued that the
proposed testimony about Code-R reports and SANE
examinations would be irrelevant and might confuse the jury
“due to the nature of the reporting by the victims in this case.”
Third, the State argued that Expert’s proposed testimony would
be inadmissible under rule 403 of the Utah Rules of Evidence. In
the State’s view, the proposed testimony was “completely void of
any probative value” and the defense’s arguments “regarding
veracity and credibility” could “be properly explored through
cross examination.” Finally, the State argued that adding expert

gov/district-attorney/childrens-justice-center/ [https://perma.cc/B
2C2-59F8].
A “‘code-R’ or rape kit procedure” is sometimes done after
an alleged victim of sexual assault makes a report of the sexual
assault, and it “involves ‘a full body examination, swabs,
photographs and collection of clothing or other items,’ and is
typically performed by a ‘sexual assault nurse examiner
(SANE).’” In re A.S.G.-R., 2023 UT App 126, ¶ 6 n.2, 538 P.3d 1259.

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State v. Draper

testimony about “the credibility of a witness” would “invade[] the
jury’s exclusive right to judge credibility.”

¶31 After hearing arguments about this on the first day of trial,
the court limited the potential testimony of Expert. The court first
ruled that Expert could not testify about CJC interview protocols
because the State was not relying on any CJC interviews in its
case. The court likewise ruled that Expert could not testify about
the SANE examinations or Code-R reports because the State was
not presenting such evidence either. But the court then ruled that
it would permit Expert to “describe for the jury best practices for
law enforcement interviewing” “and maybe even point out where
some best practices weren’t followed.” But the court cautioned
that Expert’s testimony should in no way encroach on “the jury’s
decision-making process about veracity,” and the court further
expressed its view that “the jury understands that idea of
meddling” or “coaching” even without expert testimony.

Trial and Sentencing

¶32 The trial took place over four days. Each of the four victims
testified and were cross-examined, thus detailing the incidents
described above. During the defense’s case, Counsel called a
police officer who testified that Diane’s shorts had been examined
and that investigators found no traces of seminal fluid. The
defense also called Draper’s mother and one of Diane’s classmates
from high school, each of whom testified about Diane’s potential
motives for alleging rape. Although the court had ruled that it
would allow Expert to offer limited testimony about law
enforcement interview protocols, Counsel did not call Expert to
testify. During closing arguments, Counsel argued that Helen,
Tori, and Nora were lying about their lack of consent to sex
because of regret or shame, and Counsel further argued that
Diane was lying about the alleged incident because of unrequited
love.

¶33 At the close of trial, the jury convicted Draper on four
counts of rape: two counts involving Helen (based on the

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State v. Draper

encounters in the chiropractor’s office and Draper’s living room);
one count involving Nora (based on the encounter in the car on
the way to Moab); and one count involving Diane (based on the
encounter in Draper’s truck at the lake). But the jury found Draper
not guilty on three charges: the rape charge stemming from Tori’s
allegations; the rape charge stemming from the incident between
Nora and Draper that involved “docking”; and the aggravated
assault charge stemming from the incident with Diane. At
sentencing, the court ordered Draper to serve consecutive prison
sentences for the four rape convictions.

ISSUES AND STANDARDS OF REVIEW

¶34 On appeal, Draper first raises a series of challenges to the
district court’s conclusion that communications between Victim
Advocate and the victims were privileged. “The existence of a
privilege is a question of law for the court, which we review for
correctness, giving no deference to the trial court’s
determination.” Staley v. Northern Utah Healthcare Corp., 2010 UT
19, ¶ 9, 230 P.3d 1007 (quotation simplified).

¶35 Second, Draper raises several challenges to the district
court’s decision to limit Expert’s testimony. “The correct standard
of review for a trial court’s decision to admit or exclude expert
witness testimony is abuse of discretion.” State v. Suhail, 2023 UT
App 15, ¶ 70, 525 P.3d 550 (quotation simplified), cert. denied, 531
P.3d 730 (Utah 2023).

¶36 Third, Draper argues that, as a result of the district court’s
various evidentiary rulings, he was denied his constitutional right
to present a complete defense. “Constitutional issues are
questions of law that we review for correctness.” State v.
Richardson, 2009 UT App 40, ¶ 5, 204 P.3d 872 (quotation
simplified).

¶37 In conjunction with some of the above issues, Draper also
argues that Counsel was ineffective in various respects. “When a

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State v. Draper

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. Amboh, 2023 UT
App 150, ¶ 16, 541 P.3d 299 (quotation simplified).

¶38 Draper also acknowledges in his opening brief that there
might be some question as to whether some of the above issues
were preserved. Draper thus alternatively asks us to conclude that
any unpreserved claims constituted plain error. “To prevail on
plain error review, a defendant must establish that (i) an error
exists; (ii) the error should have been obvious to the trial court;
and (iii) the error is harmful, i.e., absent the error, there is a
reasonable likelihood of a more favorable outcome for the
appellant.” State v. Cesspooch, 2024 UT App 15, ¶ 7, 544 P.3d 1046
(quotation simplified), cert. denied, 550 P.3d 994 (Utah 2024).

¶39 Finally, alongside his opening brief, Draper filed a motion
for a remand based on rule 23B of the Utah Rules of Appellate
Procedure. A rule 23B remand is “available only upon a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.” Utah R. App. P. 23B(a).

ANALYSIS

I. Victim Advocate Privilege

¶40 Under rule 512 of the Utah Rules of Evidence, a “victim
communicating with a victim advocate has a privilege during the
victim’s life to refuse to disclose and to prevent any other person
from disclosing a confidential communication.” Utah R. Evid.
512(b). But the rule contains several exceptions under which the
privilege does not apply. Id. R. 512(e). And one set of exceptions
applies when an alleged victim’s communications are made with
a “criminal justice system victim advocate.” Id. R. 512(e)(1)(E).
Below, the district court ruled that the privilege applied and that

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State v. Draper

the proposed exceptions did not apply, and it thus quashed the
subpoena that sought testimony from Victim Advocate.6

¶41 On appeal, Draper challenges the district court’s rulings on
several grounds. In brief, he argues that: (i) the communications
were not “confidential” because multiple people were present in
at least some of the meetings; (ii) the Center qualified as a
“criminal justice system victim advocate” and that certain
exceptions to the privilege applied; (iii) the court misapplied
federal law in support of its conclusion that the communications
were privileged; and (iv) the privilege belongs to, and must be
asserted by, the victims themselves, and the Center therefore
should not have been permitted to file the motion to quash.
Finally, Draper also argues that Counsel was ineffective for not
arguing that any privilege had been waived on these and various
other grounds.

¶42 As an initial matter, the State asserts that some of the issues
raised by Draper were unpreserved. Draper disagrees. But we
need not resolve this disagreement. This is so because, under
settled authority, “if 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.” State

6. Rule 512 was originally created through a legislative enactment
that took effect in July 2019. See H.R.J. Res. 3, 63d Leg., Gen. Sess.,
2019 Utah Laws 3660 (effective July 31, 2019). The rule was
amended by the supreme court in May 2022, but those
amendments do not change the provisions we cite.
Also, we note that the subpoena at issue sought to compel
both testimony from Victim Advocate and the production of
records. On appeal, Draper’s arguments are focused on the
potential testimony alone, so we’ll follow suit. Regardless, to the
extent that Draper’s arguments implicate the records as well, our
resolution applies with equal force.

20210738-CA 16 2024 UT App 152
State v. Draper

v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (emphasis omitted).
We choose to do so here.

¶43 Draper does not assert that any of the above issues
constitute structural errors—i.e., the kind of error for which a
defendant need not establish prejudice. See State v. Reece, 2015 UT
45, ¶ 34, 349 P.3d 712. As a result, even if any of the above issues
were preserved, Draper can only prevail if he establishes both the
existence of an error and that he was prejudiced. See State v.
Collins, 2014 UT 61, ¶ 28, 342 P.3d 789 (“[T]he general rule is that
all errors are reviewed for harmlessness.”). Draper has the burden
of establishing prejudice. See State v. Leech, 2020 UT App 116, ¶ 43
n.7, 473 P.3d 218 (“Except in cases of constitutional error, Utah
law places the burden on the defendant to prove that a preserved
error is harmful.”). Draper likewise has the burden to establish
prejudice with respect to his claims of plain error or ineffective
assistance of counsel. See State v. Johnson, 2017 UT 76, ¶ 20, 416
P.3d 443 (plain error); Strickland v. Washington, 466 U.S. 668, 687
(1984) (ineffective assistance).

¶44 The “showing of prejudice required to establish that
preserved errors are harmful is indistinguishable from the
showing of prejudice required to establish plain error or
ineffective assistance of counsel for unpreserved errors.” Leech,
2020 UT App 116, ¶ 43 n.7. To prevail under any such claim,
Draper must show that there is a reasonable likelihood that he
would have received a more favorable outcome below without
the alleged error, thereby undermining our confidence in the
verdict. See, e.g., Reece, 2015 UT 45, ¶ 33 (prejudice standard for
preserved claims); State v. Popp, 2019 UT App 173, ¶ 36, 453 P.3d
657 (prejudice standard for plain error review); State v. Miller, 2023
UT App 85, ¶ 27, 535 P.3d 390 (prejudice standard for an
ineffective assistance claim). And here, Draper’s claims of
prejudice regarding the privilege issues are all premised on the
assertion that Victim Advocate’s testimony would have helped
him “discredit[]” the victims. In Draper’s view, Victim Advocate’s
testimony would have shown that the victims’ accounts were

20210738-CA 17 2024 UT App 152
State v. Draper

“taint[ed]” because of prior “communication between [them],” as
well as because of Victim Advocate’s “potential influence on
them.”

¶45 In general, this court is “more likely to reverse a jury
verdict if the pivotal issue at trial was credibility of the witnesses
and the errors went to that central issue.” Leech, 2020 UT App 116,
¶ 44 (quotation simplified). And we recognize that this case did
indeed turn in large measure on the credibility of the victims—
i.e., there was no physical proof demonstrating that Draper had
nonconsensual sex with any of his accusers. And we further take
Draper’s point that because the jury acquitted him on some of the
charges it follows that the jury at least had some question about
some of the accounts, either on factual or legal sufficiency
grounds. But even so, we conclude that Draper has not carried his
burden of showing that, if Victim Advocate had testified, there’s
a reasonable likelihood that the jury would have been persuaded
to acquit him on any of the additional counts. This is so for several
interrelated reasons.

¶46 First, we’ve previously held that if proposed additional
evidence would have been “merely cumulative of the evidence”
that the jury already heard, we’re less likely to conclude that the
defendant was prejudiced. State v. King, 2012 UT App 203, ¶ 34,
283 P.3d 980. Here, much of Draper’s prejudice claim turns on the
possibility that Victim Advocate could have testified that the
victims were communicating with each other—both in general
and regarding their allegations, and sometimes with Victim
Advocate as the nexus point.

¶47 But as a starting point, the jury already heard that the
victims were communicating with each other. Here are just a few
of the examples:

• Helen testified that after her relationship with Draper
ended, she often texted “other girls”—including, of note,

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State v. Draper

Nora— to “vouch for or talk up” Draper, and that she did
so at his prompting.

• During Tori’s cross examination, Tori affirmed that she
and Diane had been friends for “quite a few years.” Tori
testified that she knew Nora “a little bit” through their
mutual connection with Draper. Tori also testified that
after her allegations came to light, Nora reached out and
asked “if [she] needed to talk about anything,” and she said
that the two had then “talked . . . a few times” about “the
situation that’s going on.”

• Diane testified that she knew Nora through school because
they were on the same cheerleading team. Diane further
testified that after she decided to come forward with her
allegations against Draper, she turned to Nora because
Diane thought Nora “could help [her] get the help [she]
needed” and help her “go forward to the authorities.”

In these and other instances, the jury heard about the social
connections among many of the victims. And these connections
would have likely come as no surprise to the jurors. After all, the
victims were all teenagers from the same small community in
rural Utah, and they were in some instances part of overlapping
friend groups. Moreover, the jury also heard testimony from
various witnesses (including a defense witness) that the rape
allegations were a common topic of conversation at the high
school. Diane, for example, agreed that the students at the high
school were “talking about the allegations” and that the
allegations were “a pretty big thing,” and she further agreed that
the allegations were “an ongoing topic” of conversation in the
community. As a result, the victims didn’t need the presence of
an outsider (such as Victim Advocate) to facilitate communication
among them. And Counsel was thus able to advance a
communication-based collusion defense on the testimony that
was offered.

20210738-CA 19 2024 UT App 152
State v. Draper

¶48 Second, Draper’s claim is more particularly focused on the
possibility that Victim Advocate played a role in arranging
communications among the victims about their rape allegations.
But the jury already heard about this too. Again, in its ruling on
the motion to quash, the district court said that although it would
not allow Counsel to call Victim Advocate to testify or identify her
or the Center by name in questions, the court would “allow
[Counsel] to delve quite extensively” during questioning about
the role that Victim Advocate might have played generally, and
the court said that it would allow such questions because “victim
credibility is very much at issue here.”

¶49 As a result, at various places during trial, this did indeed
come up, sometimes through direct questions from Counsel, and
sometimes unprompted by the victims during their answers to
questions. While cross-examining Tori, for example, Counsel
asked, “How many times were you interviewed, besides [by law
enforcement] on this incident?” Tori responded that she
“probably just talked to the victim advocate about it just the
once.” Counsel then asked (likely in violation of the court’s order),
“Do you remember the victim advocate’s name?” Tori responded
by naming Victim Advocate outright. While cross-examining
Nora, Counsel asked Nora to identify who “the first professional”
was with whom she had discussed her allegations. Nora
responded by identifying the Center by name, and she then said
that she went to the Center at the suggestion of a friend’s parent
whom she had confided in. During Diane’s direct examination,
Diane read aloud a text from Nora in which Nora had suggested
setting up a meeting with Victim Advocate (and in which Nora
had named Victim Advocate). Then, during cross-examination,
Counsel asked Diane several questions about her subsequent
meeting with Victim Advocate (and Counsel used Victim
Advocate’s name while doing so), including questions about who
drove Diane to that appointment and who else was in the room
when Diane met with Victim Advocate.

20210738-CA 20 2024 UT App 152
State v. Draper

¶50 From these and other answers, the jury therefore already
heard that some of the victims had met with Victim Advocate, and
the jury likewise heard that certain victims, in some instances,
were connecting other victims to Victim Advocate as well.

¶51 Third, if she had testified, Victim Advocate could certainly
have given more testimony about her interactions with the
victims. But to show prejudice, Draper must show that it’s
reasonably likely that this missing testimony would have helped
his cause. And because our “power of review is strictly limited to
the record presented on appeal,” Diversified Striping Sys. Inc. v.
Kraus, 2022 UT App 91, ¶ 67 n.12, 516 P.3d 306 (quotation
simplified), our consideration of this question in the direct appeal
must be based on what’s in the appellate record, see In re A.H.,
2024 UT 26, ¶ 45, 554 P.3d 969 (“It is well established that an
appellate court will not consider evidence which is not part of the
record” (quotation simplified)).

¶52 Here, Draper has not pointed us to anything in the record
showing that Victim Advocate would have said anything that
would have supported his collusion-based defense—at least not
to a degree that makes it reasonably likely that Draper would
have received a more favorable outcome at trial. During
arguments on the motion to quash, Counsel suggested that Victim
Advocate was “everywhere”—“with them in the family’s home,”
“with them at the school,” and “with them in other witness’s
homes.” Counsel also stated that she thought Victim Advocate
had been “soliciting witnesses,” and she proffered that Victim
Advocate had told one victim that she didn’t “have a choice” and
that she had “to report [an incident] to police.”

¶53 But even if Victim Advocate had testified to these things,
this testimony would in some sense have been cumulative. Again,
the jury already heard that Victim Advocate was actively meeting
with some of the victims. And beyond that, this evidence does not
go as far as Draper suggests. Of some note, the evidence
suggested that not all of the victims met with Victim Advocate.

20210738-CA 21 2024 UT App 152
State v. Draper

For example, there is no testimony indicating that Helen ever met
with Victim Advocate, and yet she was the victim for two of the
four rape charges that resulted in convictions. And Tori testified
that she spoke with Victim Advocate “just the once.”

¶54 Moreover, the evidence also showed that, before meeting
with Victim Advocate, several of the victims had already
discussed their allegations against Draper with other people. For
example, Diane testified that Nora helped connect her with Victim
Advocate, but she said that this happened after she had
approached Nora and asked Nora to “help” her “get the help [she]
needed.” This would have suggested that, although Victim
Advocate may have later connected Diane with law enforcement,
Diane had already told friends and family by this point that
Draper had raped her, thus undermining the suggestion that her
allegation was a false allegation that was prompted by suggestion
from Victim Advocate.

¶55 And that’s largely why we see no reasonable probability
that Victim Advocate’s proposed testimony would have
mattered. What little evidence there is in the record about all this
suggests that Victim Advocate and the Center were engaged in
victim advocacy services—services that are apparently common
enough and accepted enough to warrant a dedicated rule of
evidence that creates a privilege. Because of this, the mere fact that
Victim Advocate may have met with victims wouldn’t by itself
suggest that Victim Advocate had facilitated any improper
collusion. Were that enough to allow a court to compel testimony,
the privilege would effectively be a nullity.

¶56 But the defense in question turned on the notion that
Victim Advocate’s role had somehow prompted false testimony,
and there’s simply no indication in the record suggesting that, if
she had been called, Victim Advocate would have said anything
to support that. Instead, while Victim Advocate may well have
added additional details about things the jury already knew (i.e.,
that some of the victims had met with her), the record indicates

20210738-CA 22 2024 UT App 152
State v. Draper

that many of the victims were already speaking about the
incidents to each other and to other friends and family. Draper
has not pointed to anything in the record showing that Victim
Advocate would have said that she spoke with anyone who had
not already told someone else that Draper had sexually assaulted
her. Nor has he pointed to anything from which we could credibly
surmise that Victim Advocate would have said that she
encouraged anyone to testify falsely. As a result, even with the
proffer from Counsel (which, of course, must be viewed alongside
the other testimony offered by the victims at trial), it seems just as
likely (if not more so) that, had she testified, Victim Advocate’s
testimony would have supported the victims’ claims, as opposed
to undermining them.

¶57 Finally, we also note that the State filed a notice, pursuant
to rule 404(b) of the Utah Rules of Evidence, that it had another
witness who was also accusing Draper of rape and aggravated
sexual assault. As opposed to Helen, Tori, Nora, and Diane, each
of whom came from the same small town (or, in the case of Tori,
a nearby community), this additional witness was from a different
county and had no apparent involvement with the Center or
Victim Advocate.

¶58 The State did not ultimately call this witness. But if the
district court had allowed Draper to call Victim Advocate and ask
her additional questions about her involvement with the victims,
the record shows that the State could have responded by offering
this testimony from yet another young woman who was asserting
that Draper raped her. And because she apparently had nothing
to do with the other victims or the Center, her testimony would
have been untainted by the alleged collusion involving Victim
Advocate. This, too, undermines the suggestion that Draper
would have obtained a more favorable outcome if the court had
permitted him to call Victim Advocate.

¶59 In short, the jury already heard that many of the victims
knew each other, that many of the victims had communicated

20210738-CA 23 2024 UT App 152
State v. Draper

with each other about their allegations against Draper, and that
several of the victims had discussed their allegations with Victim
Advocate. And yet even having heard all this, the jury convicted
Draper of four counts of rape anyway. While Draper asserts that
he should have been allowed to question Victim Advocate about
her interactions with the victims, nothing in the record persuades
us that Victim Advocate would have said anything that would
favor the defense, much less that there’s a reasonable likelihood
that it would have been so favorable that Draper would have
obtained a more favorable verdict as a result. We thus reject
Draper’s claims regarding the privilege for a lack of prejudice. 7

7. In passing, Draper asserts in his brief that the silence in the
record should not be held against him because the district court’s
ruling on the privilege issue effectively prevented him from
creating a record sufficient to establish prejudice. While we’re
sensitive to the concern, Draper hasn’t meaningfully briefed,
much less provided any supportive authority, for the proposition
that a defendant in this kind of scenario need not establish
prejudice. His claim fails for this reason alone.
In any event, we also note that in such scenarios, a
defendant could in theory still create such a record—whether it be
through a specific proffer or instead by pointing to evidence that
is in the record that supports a reasonable inference that the
missing testimony would have been defense-favorable. But as
explained, we see no such evidence in this record, particularly
evidence that would overcome the testimony offered at trial that
runs to the contrary. Finally, even if such evidence simply does
not exist, rule 23B provides a mechanism by which an appellate
court may “grant criminal defendants a limited remand of their
case to the trial court so the record may be developed on an
ineffective assistance of counsel claim.” State v. Goodall, 2024 UT
App 100, ¶ 27, 554 P.3d 1155, petition for cert. filed, Sept. 18, 2024
(No. 20241000). But in his rule 23B motion, Draper did not proffer
that he had any evidence showing that Victim Advocate’s
(continued…)

20210738-CA 24 2024 UT App 152
State v. Draper

II. Expert Testimony

¶60 A “witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the form of
an opinion or otherwise if the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue.” Utah R.
Evid. 702(a). The “correct standard of review for a trial court’s
decision to admit or exclude expert witness testimony is abuse of
discretion.” State v. Suhail, 2023 UT App 15, ¶ 70, 525 P.3d 550
(quotation simplified), cert. denied, 531 P.3d 730 (Utah 2023).
“Under this standard, we will not reverse unless the decision
exceeds the limits of reasonability.” State v. Kufrin, 2024 UT App
86, ¶ 34, 551 P.3d 416 (quotation simplified). “An abuse of
discretion occurs only if it can be said that no reasonable person
would take the view adopted by the district court.” State v.
Edwards, 2023 UT App 23, ¶ 15, 527 P.3d 826 (quotation
simplified).

¶61 As noted, the district court imposed certain limitations on
Expert’s ability to testify about the possibility that the victims’
accounts were tainted by improper interview practices. Draper
raises several challenges to those limitations. Broadly speaking,
Draper’s arguments fall into three categories—one that’s general,
and two that are specific. We address each in turn.

¶62 First, Draper asked the court to allow Expert to testify
about the possibility that the victims’ testimonies had been tainted
by improper or excessive pretrial interviews. But the court
rejected that testimony, expressing its view that the jury did not
need expert testimony to understand the potential problems of
victims being influenced if they heard similar stories from other
victims or from the interviewers during interviews. In the court’s

testimony would have supported a collusion defense, nor did he
seek a remand to establish an ineffective assistance claim linked
to such an assertion.

20210738-CA 25 2024 UT App 152
State v. Draper

view, “that’s something the jury inherently would understand”
because “everyone has experienced that in some degree.” In other
words, the court believed that “that type of influence and that
type of thing . . . is inherently understandable to a jury in judging
credibility.” Draper challenges that conclusion on appeal, arguing
that the “issue of taint is not one within the common knowledge
of an average juror.”

¶63 As an initial matter, we agree with Draper that expert
testimony can sometimes be admitted to address certain kinds of
problems with witness testimony. In State v. Perea, for example,
our supreme court held that it was an abuse of discretion to
prevent expert testimony on “the phenomenon of false
confessions.” 2013 UT 68, ¶ 71, 322 P.3d 624. And in State v.
Clopten, our supreme court permitted expert testimony that
would help juries “recognize potential problems with eyewitness
testimony” (though it stopped short of “adopt[ing] an outright
presumption” of admissibility). 2009 UT 84, ¶¶ 25, 49, 223 P.3d
1103.

¶64 But even so, as indicated, our cases still hold that a district
court generally retains discretion whether to permit expert
testimony in a given case. Because of this, situations in which
appellate courts have held that a district court was required to
permit expert testimony have been somewhat rare. In Perea, for
example, the supreme court was persuaded that expert testimony
relating to false confessions should have been admitted because
of extensive “research” showing “that the potential infirmities of
confessions are largely unknown to jurors.” 2013 UT 68, ¶¶ 68, 71.
But the court still acknowledged that “expert testimony regarding
the phenomenon of false confessions would not be appropriate in
every case,” especially where the common indicators of a false
confession are not present. Id. ¶ 70.

¶65 Here, Draper has not pointed to any research showing that,
without expert assistance, juries are unequipped to understand
whether a witness’s account could have been tainted by improper

20210738-CA 26 2024 UT App 152
State v. Draper

interview techniques. Draper has not shown that he was unable
to explore these topics with the victims during his cross-
examinations of them. And Draper points to no cases holding that
a district court must allow expert testimony on the possibility that
a witness’s testimony could have been tainted by improper
interview techniques.

¶66 In light of all this, we see no basis for imposing such a
requirement now. Our supreme court has long held that when
assessing the “helpfulness” of evidence under rule 702, “the trial
court must first decide whether the subject is within the
knowledge or experience of the average individual.” State v.
Larsen, 865 P.2d 1355, 1361 (Utah 1993). “Under this rule, no expert
testimony is required if the matter at issue in the case is one which
is within the knowledge of the average trier of fact, or if the other
evidence is such as to present the issues in terms which the jury
can be expected to understand.” State v. Payne, 964 P.2d 327, 332
(Utah Ct. App. 1998) (emphasis added, quotation otherwise
simplified).

¶67 As indicated, the district court observed that, in its view,
jurors could understand the possibility of improper tainting
without expert assistance. As also indicated, this kind of
assessment falls within the district court’s discretionary authority.
And again, “an abuse of discretion occurs only if it can be said
that no reasonable person would take the view adopted by the
district court.” Edwards, 2023 UT App 23, ¶ 15 (quotation
simplified). On this record, we cannot say that this decision was
so unreasonable that it constituted an abuse of discretion.

¶68 Second, the district court ruled that Expert could not testify
about CJC interview protocols, and it did so largely because
neither side intended to submit evidence from any CJC interview.
Draper challenges this on appeal, asserting that the testimony
should have been permitted because “at least one of the [victims]
that was a minor at the time was interviewed multiple times at the
CJC.”

20210738-CA 27 2024 UT App 152
State v. Draper

¶69 But by Draper’s own account, only one of the four victims
was interviewed at the CJC, and no party introduced any
statements from that interview at trial. Thus, Draper is faulting
the district court for not allowing him to present expert testimony
about interview protocols for a particular kind of interview, even
though the jury did not hear that this kind of interview ever took
place. In these circumstances, we think the court could reasonably
conclude that such testimony would have been irrelevant and
potentially confusing to the jury. See Utah R. Evid. 403. The
decision to exclude this testimony was comfortably within the
court’s discretion.

¶70 Third, the district court also ruled that Expert could not
testify about either SANE examinations or Code-R reports, given
that none of the victims had undergone a SANE examination and
there were no Code-R reports. Alongside his arguments about the
taint issues, Draper challenges these rulings too. But we again see
no abuse of discretion.

¶71 As indicated above, when an alleged victim comes forward
to report an alleged sexual assault shortly after it has occurred, the
victim is often examined by a trained nurse—referred to as a
SANE (i.e., a Sexual Assault Nurse Examiner)—and the resultant
Code-R report details any observations or evidence that the nurse
collected during the exam. See supra note 5. But none of the victims
in this case reported the rapes shortly after the sexual encounters,
so as a result, there were no SANE examinations or Code-R
reports at all.

¶72 Draper nevertheless asserts that Expert should have been
allowed to testify about the “lack of corroborating physical
evidence.” But the district court could reasonably conclude that a
jury didn’t need expert testimony about the very specific subjects
of SANE examinations and Code-R reports in order to understand
that the victims had not come forward shortly after the rapes and
that the State had not collected the kinds of physical evidence that
it in theory could have collected if they had. The district court’s

20210738-CA 28 2024 UT App 152
State v. Draper

decision to disallow such testimony was eminently reasonable
and was not an abuse of discretion.

III. The Right to Present a Complete Defense

¶73 Draper’s final argument on appeal is that the district
court’s evidentiary rulings prevented him from “present[ing] a
complete defense” and “telling a plausible story,” thus violating
his rights under the Fourteenth and Sixth Amendments of the
United States Constitution, as well as the Due Process Clause set
forth in Article I, Section 7 of the Utah Constitution. But in the
issues section of his opening brief, Draper acknowledged that
“[t]his issue was not preserved,” so he accordingly suggested that
we should review this issue for ineffective assistance of counsel.
We decline to do so.

¶74 Under the Utah Rules of Appellate Procedure, a party must
provide this court with an “argument” that “explain[s], with
reasoned analysis supported by citations to legal authority and
the record, why the party should prevail on appeal.” Utah R. App.
P. 24(a)(8). These requirements are a “natural extension of an
appellant’s burden of persuasion.” State v. Roberts, 2015 UT 24,
¶ 18, 345 P.3d 1226 (quotation simplified). And while there is not
a “bright line” in this regard, State v. Haar, 2021 UT App 109, ¶ 52
n.8, 500 P.3d 102 (quotation simplified), the question of whether a
party has done enough is one that’s “left to the discretion of the
appellate court,” Roberts, 2015 UT 24, ¶ 18.

¶75 Draper’s arguments are not sufficient. At the beginning of
the Argument section of Draper’s brief, he cited the familiar two-
part test that governs ineffective assistance claims. But in the
portion of his brief in which he argued that the court’s evidentiary
rulings violated his constitutional right to present a defense, he
made no mention of the ineffective assistance doctrine or its two-
part test. This must matter. After all, to prevail on an ineffective
assistance claim, a defendant must show that trial counsel
performed deficiently in some particular respect, and the

20210738-CA 29 2024 UT App 152
State v. Draper

defendant must then show how that deficient performance
prejudiced him. See State v. Samora, 2023 UT 5, ¶ 20, 529 P.3d 330.

¶76 This kind of analysis is claim-specific. In Carrell v. State, for
example, we held that although a post-conviction petitioner had
raised some ineffective assistance claims in a timely-filed original
post-conviction petition, this didn’t mean that the petitioner could
later raise other ineffective assistance claims that were based on
different facts or alleged legal errors without regard for the statute
of limitations. 2023 UT App 93, ¶¶ 48–53, 536 P.3d 653, cert. denied,
540 P.3d 81 (Utah 2023). In this sense, we treated the different
ineffective assistance claims as being distinct claims, and we did
so because the general ineffective assistance standard was being
applied to entirely different procedural and factual questions. Id.
¶ 52.

¶77 The same is true here with respect to the question of
whether Draper sufficiently briefed this particular ineffective
assistance claim. At minimum, Draper needed to argue and
demonstrate in his opening brief that Counsel provided
ineffective assistance by failing to assert that these evidentiary
rulings violated these particular constitutional rights. In other
words, to carry his burden of persuasion, Draper needed to
present these constitutional claims through the lens of the
ineffective assistance standard. Because he did not do so, we
conclude that he has not carried his burden with respect to these
claims.

IV. Motion for a Rule 23B Remand

¶78 Under rule 23B(a) of the Utah Rules of Appellate
Procedure,

[a] party to an appeal in a criminal case may move
the court to remand the case to the trial court for
entry of findings of fact, necessary for the appellate
court’s determination of a claim of ineffective

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State v. Draper

assistance of counsel. The motion will be available
only upon a nonspeculative allegation of facts, not
fully appearing in the record on appeal, which, if
true, could support a determination that counsel
was ineffective.

¶79 To obtain a remand under this rule, “a defendant must
present the court with the evidence he intends to present on
remand and explain how that evidence supports both prongs of
the ineffective assistance of counsel test.” Suhail, 2023 UT App 15,
¶ 126 (quotation simplified). If the proffered evidence and
arguments do not “meet the test for ineffective assistance of
counsel,” “there is no reason to remand the case.” State v. Samples,
2022 UT App 125, ¶ 57, 521 P.3d 526 (quotation simplified), cert.
denied, 525 P.3d 1279 (Utah 2023); see also State v. Miller, 2023 UT
App 85, ¶ 52, 535 P.3d 390 (explaining that “the alleged facts, if
true, must establish both elements of a traditional ineffective-
assistance claim” (quotation simplified)), cert. denied, 540 P.3d 78
(Utah 2023).

¶80 To prevail on an ineffective assistance claim, Draper must
show that Counsel performed deficiently and that the deficient
performance prejudiced him. See Suhail, 2023 UT App 15, ¶ 122.
To establish deficient performance, Draper must “overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” State v. Forbush, 2024
UT App 11, ¶ 25, 544 P.3d 1 (quotation simplified), cert. denied, 550
P.3d 995 (Utah 2024). The focus of this inquiry is reasonableness,
and when “we judge the reasonableness of counsel’s challenged
conduct,” we do so “viewed as of the time of counsel’s conduct.”
State v. Carter, 2023 UT 18, ¶ 45, 535 P.3d 819 (quotation
simplified). To establish prejudice, Draper “must show that there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Suhail, 2023 UT App 15, ¶ 122 (quotation simplified). “Because
failure to establish either prong of the test is fatal to an ineffective
assistance of counsel claim, we are free to address . . . either

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State v. Draper

prong” in our review. Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d
182; see also State v. Meik, 2024 UT App 46, ¶ 31, 547 P.3d 878
(recognizing that because a defendant “must establish both
prongs,” if “either is lacking, the claim fails and this court need
not address the other” (quotation simplified)), cert. denied, 554
P.3d 923 (Utah 2024).

¶81 In his rule 23B motion, Draper requests a remand to create
a record regarding a large number of proposed ineffective
assistance claims. We’ll address these requests in the following
groups: first, we’ll address a claim relating to text messages
between Diane and Draper; second, we’ll address several claims
relating to an alleged lack of consultation between Counsel and
Draper; and finally, we’ll address several claims relating to
Counsel’s alleged failures to impeach witnesses.

A. Texts with Diane

¶82 At trial, Diane testified that she became close with Draper
during her junior year of high school. She said they “hung out
about almost every time he came down” to Monticello and that
they communicated via text or app “almost every day.” Diane
also testified that she “[n]ever” had romantic interests in Draper.
When Counsel asked Diane during cross-examination if there had
“ever been any conversations between [her] and Mr. Draper that
were sexual in nature,” Diane responded, “Absolutely not.”

¶83 In his rule 23B motion, Draper points out that, during
discovery, Counsel obtained a large number of text messages that
Draper and Diane had exchanged while they were friends. Draper
then points to a subset of texts in which Draper and Diane
discussed Diane’s romantic and physical interests in boys she
knew, none of whom were Draper. In those texts, the two also
discussed some sexual matters. In his motion, Draper argues that
Counsel was ineffective for failing to offer and then use these text

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messages at trial. But we see no basis for ordering the requested
remand. 8

¶84 Rule 412 of the Utah Rules of Evidence “generally prohibits
the admission of evidence of a victim’s sexual behavior or sexual
predisposition in any criminal proceeding involving alleged
sexual misconduct.” State v. Bravo, 2015 UT App 17, ¶ 11, 343 P.3d
306. Despite this general prohibition, Draper argues that these
texts were admissible and should have been used for two
particular purposes.

¶85 First, Draper claims that Counsel should have offered the
texts as evidence that Diane had consented to have sex with him.
In support, Draper points out that rule 412 contains several
exceptions, one of which permits the admission of “evidence of

8. “Before admitting evidence” of a victim’s sexual behavior or
predisposition, “the [district] court must conduct an in camera
hearing,” and “[u]nless the court orders otherwise, the motion,
related materials, and the record of the hearing are classified as
protected.” Utah R. Evid. 412(c)(3). In State v. Rallison, we recently
recognized that “the rule does not address the handling of the
evidence upon appeal.” 2023 UT App 34, ¶ 5 n.2, 528 P.3d 1235.
And we further noted that our decision about how much detail to
include in an appellate decision should reflect the “purpose of
rule 412,” which “is to prevent the accusers in sexual assault cases
from being subjected to unwarranted inquiries into their sexual
behavior.” Id. (quotation simplified).
In his rule 23B motion, Draper seeks to create a record
about Counsel’s failure to admit certain texts between himself and
Diane that discussed some sexual matters. But because there was
no request before the district court (and, thus, no in camera
review), and because we conclude that Counsel was not
ineffective for failing to introduce these texts, we conclude that
the purposes of rule 412 are best served by keeping our
description of these texts somewhat vague. We’ll accordingly
provide only enough detail to explain the basis for our decision.

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State v. Draper

specific instances of a victim’s sexual behavior with respect to
the person accused of the sexual misconduct, if offered by
the defendant to prove consent,” so long as that “evidence
is otherwise admissible” under the Utah Rules of Evidence.
Utah R. Evid. 412(b)(2). But even if these texts could have
been admitted under this exception—an issue that we need not
and do not decide—we disagree with Draper’s contention that
Counsel performed deficiently by not offering them for this
purpose.

¶86 When assessing whether counsel performed deficiently, “a
court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered
sound trial strategy.” Strickland, 466 U.S. at 689 (quotation
simplified). “If it appears counsel’s actions could have been
intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance.” State v.
Ray, 2020 UT 12, ¶ 34, 469 P.3d 871.

¶87 The problem here is that if Counsel had used these texts
to show that Diane consented to sex, this would have
been contrary to the theory that Counsel ran regarding Diane
at trial. At trial, Counsel argued that the instances of sexual
contact involving Helen, Tori, and Nora were not rape because
the encounters were consensual. But with respect to Diane,
Counsel argued that this was “a whole different situation.”
Pointing to various alleged problems with Diane’s account,
Counsel argued the alleged sexual encounter never happened,
and Counsel further asserted that Draper “was not interested in
having sex” with Diane because he viewed her as a “little sister.”
Indeed, Draper has filed an affidavit in support of his rule 23B
motion, and in that affidavit, Draper himself insists that he did
not have sex with Diane.

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¶88 As we’ve recently recognized, a defense attorney’s “wide
latitude to make tactical decisions surely include[s] the ability to
protect the integrity of his preferred theory of the case by not
simultaneously advancing a contradictory one.” State v. Rivera,
2022 UT App 44, ¶ 41, 509 P.3d 257 (quotation simplified); cf. State
v. Pascual, 804 P.2d 553, 556 (Utah Ct. App. 1991) (concluding that
an “election between inconsistent defenses was a legitimate
exercise of trial strategy rather than ineffective assistance of
counsel”). Here, if Counsel had tried introducing the texts from
Diane to show that she consented to sex with Draper, this could
have undermined the defense’s insistence that Draper regarded
her as a “little sister” and did not have sex with her. The failure to
offer these texts for this purpose was therefore not deficient
performance.

¶89 Second, Draper also argues that Counsel could and should
have introduced these texts to impeach Diane’s testimony at trial
that she’d never had “any conversations” with “Draper that were
sexual in nature.” While rule 412 does not contain a specific
exception for impeachment, Draper argues that the texts would
have been admissible for this purpose under rule 412(b)(3), which
allows admission of evidence “whose exclusion would violate the
defendant’s constitutional rights.” In Draper’s view, his rights to
confrontation and to present a complete defense would have
allowed him to use these texts for impeachment.

¶90 The parties disagree about whether these texts would
actually have been admissible under this rule. See generally State v.
Eddington, 2023 UT App 19, ¶ 39 n.15, 525 P.3d 920 (discussing,
but not deciding, the question of whether rule 412(b)(3) allows
evidence of prior sexual conduct to be admitted for impeachment
purposes). But we need not decide this question here. This is so
because, even if these texts could have been admitted for this
purpose, Counsel could have reasonably chosen not to use them.

¶91 We’ve reviewed the texts at issue. Without getting into the
specifics, it’s enough to point out that while Diane and Draper

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texted about some sexual things, Draper points to no place in
those texts (and we see none) where Diane ever texted Draper
about having engaged or intending to engage in sexual activity
with him.

¶92 This distinction matters because of the particular exchange
at issue during trial. In the moments before the key question,
Diane had been prompted to describe how she’d ended up sitting
on Draper’s lap while driving his truck that night. When Diane
was asked whether she thought “it was odd to be sitting on his
lap while [she] was driving,” Diane said “no.” When she was
asked, “Why not?”, Diane responded, “Because we were friends.”
It was in response to that question and answer that Diane was
asked whether there had “ever been any conversations between
[her] and Mr. Draper that were sexual in nature,” to which Diane
responded, “Absolutely not.”

¶93 Against this backdrop, we agree with the State’s assertion
that Diane could have understood this question to be about
whether she’d had conversations that were “sexual in nature”
regarding sexual activity with Draper. After all, what had
prompted that question was Diane’s assertion that it was not
weird for her to be sitting on Draper’s lap because she and Draper
were just friends. As a result, if Counsel had tried to impeach
Diane by pointing to texts in which she’d discussed sexual things
involving other people, Diane would have had an obvious
response—she had understood the earlier question to be about
sexual activity with Draper. Moreover, the impeachment value of
this exchange would have been somewhat minimal anyway.
This wouldn’t have allowed Counsel to impeach Diane about
her account of the alleged rape. Rather, it would have
only allowed Counsel to impeach her about a decidedly
peripheral issue (whether Diane and Draper had previously
discussed sexual things over text). For this reason too, Counsel
could have reasonably decided that this simply wasn’t worth the
distraction.

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¶94 We thus disagree with Draper’s assertion that Counsel
performed in an objectively unreasonable manner by failing to
pursue this potential line of impeachment, and we therefore deny
this request for a remand.

B. Consultation Issues

¶95 Draper next asks for a remand so that he can create a record
on several claims relating to Counsel’s lack of consultation with
him before trial. These requests are supported by affidavits from
both Draper and his lead attorney.9 We address each in turn.

1. Number of Meetings

¶96 In his affidavit, Draper states that he “only met with his
attorneys twice before trial and these visits occurred within two
weeks of trial.” From this, Draper claims that Counsel was
ineffective for not meeting with him often enough to prepare for
trial. Even assuming that this allegation is true, we reject this
request for a remand because Draper has not shown that Counsel
performed deficiently.

¶97 In a criminal case, defense “counsel’s function is to assist
the defendant,” and from this derives “the more particular duties
to consult with the defendant on important decisions and to keep
the defendant informed of important developments in the course
of prosecution.” Strickland, 466 U.S. at 688. But the deficient
performance prong of an ineffective assistance analysis ultimately
looks to “the reasonableness of counsel’s challenged conduct”

9. As noted, Draper was represented by two attorneys below, and
for simplicity, we’ve referred to them collectively by the singular
“Counsel” throughout this opinion. The affidavit that was filed in
support of Draper’s rule 23B motion was provided by the attorney
who appears to have acted as Draper’s lead attorney. Since her
affidavit informs our assessment of many of the rule 23B issues
moving forward, we’ll refer to her as “Lead Counsel” when
discussing assertions she made in that affidavit.

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when “viewed as of the time of counsel’s conduct.” Carter, 2023
UT 18, ¶ 45 (quotation simplified). In Strickland, the Supreme
Court expressed its concern that the “availability of intrusive
post-trial inquiry into attorney performance or of detailed
guidelines for its evaluation would encourage the proliferation of
ineffectiveness challenges,” and the Court cautioned lower courts
against imposing “rigid requirements for acceptable assistance.”
466 U.S. at 690. More saliently here, we have declined “to
determine what amount of time counsel must spend with a
defendant to ensure that the representation does not fall below an
objective standard of reasonableness.” State v. Bair, 2012 UT App
106, ¶ 57, 275 P.3d 1050 (quotation simplified).

¶98 On this issue, we first note that Counsel’s ability to meet
with Draper was impaired in the early stages of the case by
circumstances that were outside Counsel’s control. In her
affidavit, Lead Counsel states:

One of the major issues we had in preparing for trial
was our inability to have regular, confidential
contact with [Draper] in the jail. . . . We were aware
that our calls were likely being monitored and when
we attempted to schedule to meet with [Draper], we
were unable to do so. Some of this was due to the
global pandemic but I was told . . . that in-person
visits were not allowed.

Lead Counsel then avers that, at her request, the prosecutor
“communicated with the jail to ensure in-person visits would be
facilitated.” And in his affidavit, Draper explains that his father
spoke with “the head of State corrections” to ensure that in-person
visits could occur. Draper does not dispute that any of this
occurred, nor has he persuasively argued that there was anything
more that Counsel should have done in the early stages of the case
to overcome the access problems that were created, in part, by the
COVID-19 pandemic.

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State v. Draper

¶99 What we’re left with, then, is Draper’s assertion that, after
those problems were resolved, Counsel met with him just twice
and that both meetings were held shortly before trial. But again,
we’ve been cautioned against imposing “detailed guidelines” or
“rigid requirements” for reasonable performance, Strickland, 466
U.S. at 690, and we’ve declined to set forth a particular “amount
of time counsel must spend with a defendant to ensure that the
representation does not fall below an objective standard of
reasonableness,” Bair, 2012 UT App 106, ¶ 57 (quotation
simplified). Moreover, although Draper avers that he met with
Counsel only twice, he says nothing about how long those
meetings were. But under Strickland, we must “indulge a strong
presumption that counsel’s conduct” did fall “within the wide
range of reasonable professional assistance.” Strickland, 466 U.S.
at 689. 10

¶100 To the extent that Draper has asked for a remand relating
to Counsel’s alleged failures to discuss certain subjects with him
during those meetings, we’ll address those claims below. But in
light of the Strickland presumption and our prior caselaw, we see
no basis for holding that Counsel performed deficiently simply
based on the number of in-person meetings. We accordingly
decline to remand on this basis.

10. Although it’s a touch tangential to the issue of whether the
number of meetings was sufficient, Draper’s affidavit does
provide some indication that these meetings were more than
perfunctory. For example, Draper avers that, during those
meetings, he was given some of the police reports and portions of
several victim interviews to review, that he and Counsel
discussed “text messages recovered from [his] phone” and how
they could support the defense, and that he and Counsel
discussed “a few of the reports that would show the witnesses
were untruthful.”

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2. Failure to Consult About Waiving the Preliminary Hearing

¶101 Draper next asks for a remand to show that Counsel did
not adequately consult with him about his decision to waive his
right to a preliminary hearing in exchange for being able to hold
informal interviews with the victims. In his affidavit, Draper says
that he “was not told the reason for not having the preliminary
hearing until after” the decision was already made. But even with
this proffer, there are two reasons why Draper has not shown that
he was prejudiced by any such consultation failure.

¶102 First, even if it were true that Counsel did not tell Draper
about the reason for waiving the preliminary hearing during one
of the pretrial meetings, it’s also unquestionably true that Draper
was told those reasons by Counsel in open court. The record
shows that Draper was present at the hearing when the district
court and the attorneys for both sides discussed the plan to waive
the preliminary hearing and instead hold informal interviews.
During that hearing, Counsel explained to the court that this
proposal would be helpful because electronic preliminary
hearings were hard to conduct, this format would more easily
accommodate the large number of witnesses involved, and this
option would help reduce any unnecessary delays. Draper would
have heard this, and he would have likewise heard the prosecutor
assure the court that “Draper could ask for his [preliminary
hearing] anytime prior to entering the plea . . . if the other
alternative meetings don’t give them what they think they need.”
Indeed, at the close of that hearing, the court addressed Draper
directly, telling him that he could “change [his] mind, and ask for
a preliminary hearing.” The court reminded Draper that he had a
right to a preliminary hearing and then asked him whether he
agreed to “conditionally” waive it. Draper responded that, on the
advice of Counsel, he would do so.

¶103 We’ve previously held that a defendant cannot prevail on
an ineffective assistance claim based on a lack of information from
counsel if the record shows that the defendant received the

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relevant information from another source. See McCormick v. State,
2014 UT App 49, ¶ 3, 321 P.3d 1172 (per curiam) (denying an
ineffective assistance claim where the attorney had commented
“that by pleading guilty, [the defendant] would probably only
spend a few days in jail,” where the court’s plea form “clearly
informed [the defendant] that he could be sentenced to the
maximum penalty allowed by law”). Here, even if it’s true that
Counsel did not tell Draper the reasons for waiving the
preliminary hearing during their pretrial meetings, it’s also
true that Draper was apprised of these reasons during the
pretrial hearing in court. For this reason alone, he cannot show
prejudice.

¶104 Second, though perhaps a touch unclear, we understand
this claim to ultimately be grounded in the suggestion that Draper
would not have waived his right to a preliminary hearing if he
had been properly advised. But it’s settled in Utah that
“conviction beyond a reasonable doubt cures any flaw in a
preliminary hearing—including the complete deprivation of a
preliminary hearing.” State v. Aleh, 2015 UT App 195, ¶ 18, 357
P.3d 12; see also id. ¶ 18 n.2. Here, Draper was convicted of various
charges at the close of the trial. As a result, even if Counsel
performed deficiently by not consulting with Draper about the
decision to waive the preliminary hearing, and even if that failure
led Draper to waive it where he might not have done so otherwise,
Draper cannot show prejudice. For this reason too, we have no
reason to order a remand.

3. Failure to Advise Draper About His Right to Testify

¶105 Finally, Draper claims that, during both their pretrial
meetings and again during trial, Counsel did not properly advise
him of his right to testify or prepare him to testify. In his affidavit,
Draper says that he “believed that [he] would be testifying” in his
“own defense” and that he “believe[d]” his testimony “was
necessary to show the jury that what [the victims] said was not
what happened.” Draper says that Counsel told him that Counsel

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State v. Draper

would decide if he should testify and that, if Counsel decided that
he would testify, Counsel would come to the jail and prepare him
before that testimony. Draper then avers that Counsel never came
to the jail or prepared him to testify, and he further says that he
“relied on the advice of [his] attorneys on whether or not to
testify.”

¶106 From these and other statements Draper made in his
affidavit and rule 23B motion, we understand Draper to be
asserting that Counsel both did not advise him that he had the
right to decide whether to testify and was ineffective for not
recommending that he choose to testify. And we further
understand Draper to be asserting that, if he had been properly
advised, he would have chosen to testify at trial.

¶107 While certain “[t]rial management” decisions are the
“lawyer’s province,” “[s]ome decisions” “are reserved for the
client”—including, notably, the decision whether to “testify in
one’s own behalf.” Mccoy v. Louisiana, 584 U.S. 414, 422 (2018).
Thus, while an attorney may advise a defendant not to exercise
the right to testify, see State v. Martinez, 2020 UT App 69, ¶ 51, 464
P.3d 1170, “[t]he defendant retains ultimate authority in deciding
whether or not to testify,” State v. Brooks, 833 P.2d 362, 364 (Utah
Ct. App. 1992). Moreover, as noted above, we’ve recognized that
defense attorneys have “particular duties to consult with the
defendant on important decisions and to keep the defendant
informed of important developments in the course of
prosecution.” Strickland, 466 U.S. at 688. We therefore have no
difficulty concluding that a defense attorney must advise a
defendant that he or she has the right to testify and provide
reasonable consultation about the potential exercise of that right.
But even assuming that Counsel failed to comply with that duty
in this case, we still deny Draper’s request for remand because
Draper has failed to show that he was prejudiced by this
deficiency such that “the result of the proceeding would have
been different” if he had been properly advised. Miller, 2023 UT
App 85, ¶ 27 (quotation simplified).

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State v. Draper

¶108 As noted, Draper submitted his own affidavit in support of
this motion. His affidavit is 20 pages, and it includes a detailed
account of the testimony that Draper says he would have offered
at trial, with separate subheadings setting forth his proposed
testimony about each victim. At the broadest level, we note that
Draper denies having sexually assaulted any of the victims. And
more particularly, Draper explains on a victim-by-victim basis
why he thinks each victim was lying in her testimony.

¶109 But our consideration of this question is not limited to
Draper’s affidavit. In determining whether a defendant was
prejudiced by trial counsel’s deficient performance, “a court
hearing an ineffectiveness claim must consider the totality of the
evidence before the judge or jury.” Strickland, 466 U.S. at 695; see
also King, 2012 UT App 203, ¶ 46 (“When we examine counsel’s
alleged errors, we consider the totality of the evidence to
determine whether the errors altered the entire evidentiary
picture and whether the verdict is supported by the record.”
(quotation simplified)). Moreover, we also “assess counterfactuals
scenarios” of “what would have happened but for the ineffective
assistance.” Ross v. State, 2019 UT 48, ¶ 76, 448 P.3d 1203. And “we
may do so with the evidence available to us, even when not part
of the original record.” State v. Ames, 2024 UT App 30, ¶ 19, 546
P.3d 356 (quotation simplified), cert. denied, 550 P.3d 993 (Utah
2024).

¶110 The prejudice question before us here is whether it’s
reasonably likely that, if Draper had testified as indicated in his
affidavit, he would have received a better outcome at trial. In
Draper’s view, the benefits of his proposed testimony are clear
enough. If he had testified, the jury would have now heard him
say, under oath, that he did not have nonconsensual sex with any
of the victims. And the jury would have also heard his
explanations for why he thought the victims were falsely accusing
him.

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State v. Draper

¶111 But even so, Draper has not persuaded us that there is a
reasonable likelihood that his proposed testimony would have
resulted in a more favorable verdict on any count. In assessing
this, we start with the testimony that was presented against him
originally. We recounted that testimony above and need not
repeat it here. Focusing more specifically on Draper’s proposed
testimony, we note that it’s decidedly problematic on any number
of levels—both in terms of problematic things that Draper tells us
he would have said, as well as through damaging information
that’s in the record that the State very likely would have offered
in response. We need not and do not recount all of the potential
problems here. We highlight three of them to illustrate the nature
of our conclusion.

¶112 First, evidence about Nora. In his affidavit, Draper opines
that the “case really begins and ends with” Nora. Draper then
spends over six pages of his affidavit setting forth his proposed
testimony about Nora, which is nearly equal to the space he gives
to his proposed testimony about the remaining victims combined.
Our focus will follow suit.

¶113 Much of Draper’s proposed testimony about Nora seeks to
cast her as playing an aggressive and even controlling role in their
relationship. For example, Draper says that he would have
testified that he and Nora were in a “volatile relationship” and
that she had hit him “a lot” towards the end of their relationship.
But if Draper had testified in this manner, he would have opened
the door to a large amount of damaging information about his
own actions in that relationship that the State could—and,
according to the State on appeal, would—have offered in
response. As part of Draper’s rule 23B submission, Draper
attached police reports from officers who investigated the case. In
one report, an officer recounts that Nora said that Draper had
“threatened suicide every time she tried to break up with him or
leave him.” In that same report, Nora said that on one occasion
after she had an argument with Draper, Draper drove her down a
dirt road, got out, put a “gun to his head and pulled the hammer

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back” before Nora was able to calm him down. Nora also said that
on another occasion, Draper had “sent her a picture of a shotgun
in the vehicle and a text that said he was going to kill himself
because of her,” and according to the report, Nora provided a
copy of that text and picture to law enforcement.

¶114 In another incident recounted in those same reports, Nora
described what had happened on a trip she had taken with Draper
to Las Vegas. According to Nora, during that drive, Draper
“twisted her arm and held it up behind her back, forcing her body
to go forward” in order to “get her phone away from her.” She
said that while they were later stopped at the side of the road,
Draper “grabbed her by the back of the neck,” after which they
had a struggle that left Nora with a bloody nose and a bruised eye,
and Nora told officers that she had a video of that bruise. In
another incident that Nora described, Draper allegedly squeezed
her arm so hard that it resulted in “small fingertip like bruises on
both arms,” and Nora told officers that she had a photo of these
bruises.

¶115 In yet another alleged incident, Nora claimed that Draper
followed her home after work even though she told him she did
not want him to do so, that Draper followed her inside her home,
and that when she tried to leave, Draper “locked the front door,
the door to the garage[,] and the back door,” and “he then
followed her around the house making sure she did not leave.”
According to the officer’s notes, Nora provided security camera
footage from inside her home that corroborated these claims.

¶116 Separate from these allegations, we note that in Draper’s
own affidavit, he says that he told Nora at one point that “unless
she was willing to talk to [him] about the relationship issues [they]
were having,” he would tell her parents and church leader about
their sexual relations. To some people, this may have seemed to
be a manipulative and controlling threat.

¶117 There are other incidents of a similar nature in the record.
As a result, if Draper had testified about Nora in the manner he

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State v. Draper

proposes in his affidavit, the very likely result would have been
the State then putting on evidence in rebuttal of a number of
incidents in which Draper was volatile, sometimes violent, and
often controlling toward Nora. If the point of Draper’s proposed
testimony was to undermine Nora’s credibility on this basis, it
seems clear enough that it would have had a similar (if not
greater) effect on his own credibility as well. And in the broader
context of a case that centered in no small measure on various
victims’ claims that Draper refused to take no for an answer, the
damaging effect of the testimony recounted above could and
likely would have been pronounced.

¶118 Second, inconsistencies. In August 2019, Draper gave an
interview to law enforcement during which he was asked about
his relationships with some of the victims. As the State points out,
Draper gave a number of inconsistent or shifting answers—all of
which could have been used to impugn his credibility during
cross-examination if he had testified. These include the following:

• Draper told officers that he could never have had sex in the
front seat of his car because “it’s just too small in my car, I
can’t do anything, it’s just too small.” But in response to
further questions from officers, Draper admitted that he
did have sex with Nora in the front seat of his car, but he
then claimed that “it was consensual every single time.”

• When Draper was asked if he and Nora had ever done
anything sexual while driving between Monticello and
Moab, he first said that he thought “the only time [they]
did stuff in the car might have been up the mountain.” But
a short time later, he changed his story entirely, saying, “I
don’t know it has happened so many times, I can’t even
remember half of them.”

• Draper was asked about Nora’s account of the incident in
which he had gone to her house uninvited and then
refused to leave. At first, Draper specifically denied

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State v. Draper

unplugging the video camera. But when he was confronted
with video footage that showed him unplugging it, Draper
changed his answer, saying, “yeah, I unplugged it, I'm
admitting that.”

¶119 Aside from the internal inconsistencies, Draper also made
a number of statements that were contradicted by physical
evidence:

• During the interview, Draper denied that he was suicidal.
He also stated, “I have never had a gun with [Nora], I’ve
never showed her a gun, I’ve never [waved] a gun at her,
nothing.” But as noted, law enforcement had evidence that
Draper sent Nora a picture of a shotgun and a text from
Draper saying that he would kill himself because of her.

• Draper told officers that the relationship with Nora never
included “punching or hitting or holding down” and that
“[t]he only person that hit in this relationship was [Nora].”
But as indicated, law enforcement had testimony and
photo evidence showing that Draper had physically
harmed Nora.

• In his rule 23B affidavit, Draper says he would have
testified that his relationship with Nora was “100%
consensual” and “very much a two-sided relationship.”
But the State could have presented some of the evidence
referenced above, as well as a number of text messages in
which Nora repeatedly told Draper that she did not want
to see him and in which Draper pressed her for a
relationship anyway.

¶120 From these and other instances in the record that are
highlighted in the State’s appellate filings, it’s clear enough that,
if Draper had testified, the State had multiple pieces of evidence
from which it could directly impeach his credibility. Indeed,
Draper’s own appellate filings tacitly recognize that his credibility

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could have been impugned. After the State pointed out Draper’s
credibility problems in its opposition to the rule 23B motion,
Draper suggested in his reply that, in the identified instances, he
“wasn’t being dishonest—he was eighteen years old and
communicated poorly.”

¶121 But since the apparent goal of Draper’s testimony would
have been to convince the jury that he never had nonconsensual
sex with any of the victims, and since the success of that endeavor
would have turned in no small part on his credibility, giving the
State the opportunity to highlight his own shifting stories and the
many instances in which his accounts conflicted with physical
evidence could well have undermined his own case.

¶122 Third, cumulative evidence. Finally, we note that much of
the proposed testimony set forth in Draper’s affidavit would have
been cumulative of information provided by other witnesses at
trial. In past cases, we’ve recognized that the absence of otherwise
cumulative evidence is less likely to be prejudicial. See, e.g., King,
2012 UT App 203, ¶ 34. Here, these include, but are not limited to,
the following.

• Draper says that he would have testified that Nora
“solicited everyone else to say these things against [him].”
But as noted above, the jury already heard that Nora had
spoken with at least one of the other victims about “the
situation” with Draper.

• Draper says that he could have explained that Diane was
motivated to lie about the incident at the lake because she
wanted to sue him or was jealous of his relations with other
girls. But at trial, Counsel elicited testimony from other
witnesses about both things.

• Draper says in his affidavit that he would have testified
that Nora became “upset” and “afraid” when he
threatened “to disclose [their] sexual relationship” to her

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parents and church leader, and he then suggests that this is
what prompted her to falsely accuse him of raping her. But
evidence of Nora’s religiosity and preference to stay
celibate until she was married already came up several
times during her testimony, and it was referenced again in
closing argument.

¶123 In sum, with respect to Draper’s assertion that Counsel’s
lack of proper consultation resulted in him not testifying when he
otherwise would have, we’re sensitive to the conceptual
complexity of the task at hand. As presented to us, we’re being
asked to evaluate the potential impact of testimony that was never
given on a trial that we didn’t see. But even so, this is the question
before us, and under controlling authority, Draper is not entitled
to a remand unless the evidence that he proffers persuades us that
there’s a reasonable probability he would have received a more
favorable outcome, even when considered alongside the other
evidence that’s already in the record and the likely responses from
the State. Here, we have carefully evaluated Draper’s affidavit,
the trial record, and the arguments made by counsel for both sides
about the likely impact of Draper’s proposed testimony. In light
of the above, we don’t believe that there’s a reasonable probability
that Draper’s proposed testimony would have led to a more
favorable outcome at trial. We accordingly deny his request for a
remand on this issue.

C. Impeachment and Defense Evidence

¶124 Finally, Draper asks for a remand on a series of claims
about whether Counsel was ineffective for not impeaching the
victims with available evidence or offering certain defense-
favorable evidence in the case-in-chief. Draper points to a large
number of potential examples, and we have considered each of
them. But “an appellate court has discretion as to the nature and
extent of the opinions it renders and we need not address in
writing each and every argument, issue, or claim raised and
properly before us on appeal.” State v. Payne, 964 P.2d 327, 332 n.3

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(Utah Ct. App. 1998) (quotation simplified). In our view, none of
the identified claims justify a remand. We address just a few of
the claims for which we think some analysis is justified or
otherwise helpful. 11

11. In conjunction with this claim, Draper asks for a remand to
support the claim that Counsel was ineffective for not ensuring
that the informal interviews with the victims were recorded. In
Draper’s view, the lack of recordings impaired Counsel’s ability
to attack the credibility of the victims at trial with information
obtained in those interviews.
In opposing this request, the State initially suggests that
Draper has not shown that Counsel acted deficiently. After all, as
the State points out, Lead Counsel’s affidavit indicates that she
and co-counsel were both present and took detailed notes during
the interviews. That affidavit further shows that an investigator
was also present during those interviews and could have testified
at trial if any victim said anything that contradicted statements
she made in her interview. In the State’s view, this, alone, was
sufficient under prevailing professional norms.
But on the record before us, it remains unclear whether
Counsel consciously chose to forego recording the interviews, or
whether the non-recording was instead unintended. Regardless,
we need not decide whether Counsel performed deficiently in this
regard. As noted, a remand is only warranted if Draper shows
both deficient performance and prejudice. And Draper’s claim of
prejudice for the lack of recording turns on Counsel’s alleged
inability to use the information obtained during the interviews to
impeach the victims at trial. For the reasons set forth below, we
conclude that Draper was not prejudiced by any failure to
impeach any of the victims. As a result, we likewise conclude that
he has not shown that he was prejudiced by Counsel’s failure to
ensure that the interviews were recorded.

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1. Helen’s Poor Memory

¶125 Draper faults Counsel for not introducing a portion of
Helen’s CJC interview in which she said, “I have a really bad
memory, so it’s going to take me a minute.” But during her trial
testimony, Helen said at least eighteen times that she did not
remember something or that she was uncertain about a particular
detail. Some of these instances were about fairly benign things,
while others were about more important things (such as what
caused the end of her relationship with Draper). But regardless,
in light of these many examples, the jury didn’t need to hear her
additional acknowledgment that she had a bad memory in order
to understand that her memory wasn’t always clear. Since this
statement was cumulative of other evidence, Counsel could have
reasonably decided not to introduce it, and we likewise see no
basis for concluding that its absence prejudiced Draper.

2. Diane’s Other Conversations

¶126 Draper faults Counsel for not eliciting testimony from
Diane during cross-examination that she spoke with “multiple
individuals about the allegations before speaking to law
enforcement.” But in cross-examination, Counsel elicited
testimony from Diane that she had spoken with her friend, her
sister, Nora, her mother, and Victim Advocate. While Draper now
argues that Counsel should have elicited testimony that Diane
also told her boyfriend and another friend, he does not
demonstrate that adding these two names into the mix would
have altered the evidentiary picture in anything approaching a
meaningful way. As a result, Counsel could have reasonably
decided not to elicit this information, and we see no basis for
concluding that its absence prejudiced Draper.

3. The Nature of Draper and Nora’s Relationship

¶127 Draper argues that Counsel should have introduced a
statement from Nora’s protective order request in which she said,
“We discussed and agreed to being each other’s

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boyfriend/girlfriend.” Draper says this statement could have been
used to contradict Nora’s trial testimony that her
“boyfriend/girlfriend” relationship with Draper was “against
[her] will from the beginning.” In his affidavit, Draper likewise
says that he would have testified that when he was served with
that protective order, Nora “made many, many allegations of
physical and sexual abuse” against him, but that he was prepared
to testify that none of them were true.

¶128 In a recent case, however, this court affirmed a suppression
ruling precisely because the evidence in question may have led
the jury to hear that the defendant had a protective order against
him. See State v. Lewis, 2024 UT App 96, ¶ 36, 553 P.3d 1081, petition
for cert. filed, Sept. 11, 2024 (No. 20240969). In the court’s view, that
would have created the impermissible “risk that the jury would
improperly consider” the defendant’s “conduct that gave rise to
issuance of the protective order.” Id. 12

¶129 Unlike that case, the claim here arises in the ineffective
assistance context. But this context is all the more reason why the
claim fails. Here, even if Counsel could have impeached Nora
about whether she initially agreed to be Draper’s girlfriend, using
the protective order for this purpose would have now informed
the jury that Nora had obtained a protective order against Draper,
and Counsel could readily have thought that the downside of the
jury learning about this far exceeded any upside. This was not
deficient performance, and no remand is warranted on this claim.

12. There was a dissent in State v. Lewis, but the dissenting judge
likewise agreed that “a defendant might be unfairly prejudiced if
a jury unnecessarily learns that there was a protective order
against the defendant.” 2024 UT App 96, ¶ 74 n.16, 553 P.3d 1081
(Tenney, J., dissenting), petition for cert. filed, Sept. 11, 2024 *(No.
20240969).

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4. Diane’s Video

¶130 Finally, Draper faults Counsel for not seeking to introduce
a video that Draper says he “received from Diane on the night of
the alleged rape.” In his affidavit, Draper says, “After I left,
[Diane] sent me a video of her dancing around the campfire at the
lake.” In Draper’s view, this video would have contradicted
Diane’s claim at trial that, after the rape (and the alleged assault),
she went home immediately and was in a traumatized state.

¶131 We’re not persuaded that this proposed evidence would
have meaningfully impacted the evidentiary picture. As a starting
place, Draper never says that he has any information about when
the video was taken (as opposed to when it was sent). Thus, to the
extent that the proffer might be read to suggest that Diane was
dancing after the time that she claims she had been raped and
assaulted, the proffer is inadequate to establish this.

¶132 But Draper’s proffer really seems directed at the assertion
that the video could have at least shown that, contrary to her claim
at trial, Diane was happily communicating with him after the
rape. Even if Counsel had introduced the video in question, and
even if this had contradicted Diane’s testimony in some measure,
we’re not persuaded that there’s a reasonable likelihood that this
would have mattered. After all, as the State points out, it’s widely
understood that rape victims do not always act in a particular
way. See, e.g., State v. Torres-Orellana, 2021 UT App 74, ¶ 33 n.12,
493 P.3d 711 (noting that a victim’s “expressions of affection
toward” the defendant were “not necessarily inconsistent with
rape”), cert. granted, 503 P.3d 268 (Utah Dec. 9, 2021) (No.
20210634); State v. Nunes, 2020 UT App 145, ¶ 30 n.12, 476 P.3d 172
(“[D]espite the persistence of certain cultural myths, not all rape
victims will . . . have no further interaction with their rapists.”);
State v. Jok, 2019 UT App 138, ¶ 24, 449 P.3d 610 (“[R]ape victims
display a diverse range of reactions to the harm they suffered.”),
aff’d, 2021 UT 35, 493 P.3d 665; State v. Heath, 2019 UT App 186,
¶¶ 49–50, 453 P.3d 955 (affirming a jury conviction of sexual

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battery against a chiropractor even though the patient continued
to see that same chiropractor after the criminal conduct).

¶133 In the counterfactual world in which Counsel had
attempted to impeach Diane with this video, the likely response
would have been clear and plausible enough—that in the
immediate wake of being sexually assaulted by someone she had
regarded as a close friend, Diane’s emotions were unsettled and
she was unsure how to react. And when viewed alongside all the
other testimony presented at this trial, whether it be from Diane
or the other witnesses, we’re not convinced that there’s a
reasonable possibility that introducing this video would have
resulted in a more favorable outcome here. We accordingly deny
Draper’s request for a remand on this issue.

CONCLUSION

¶134 For the foregoing reasons, we affirm Draper’s convictions
and deny his request for a rule 23B remand.

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