State v. Haynes

2025 UT App 75

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JIMMY JOSEPH HAYNES,
Appellant.

Opinion
No. 20220420-CA
Filed May 22, 2025

Third District Court, Salt Lake Department
The Honorable Matthew Bates
No. 201912835

Andrea J. Garland and Brock Van De Kamp,
Attorneys for Appellant
Derek E. Brown and Michael Gadd,
Attorneys for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES RYAN M. HARRIS and JOHN D. LUTHY concurred.

OLIVER, Judge:

¶1 A jury convicted Jimmy Joseph Haynes on one count of
rape of a child, three counts of aggravated sexual abuse of a child,
and one count of sodomy upon a child. Haynes appeals his
convictions, asserting that the trial court erred in denying his
motions to dismiss and that his trial attorneys (Counsel) rendered
constitutionally ineffective assistance. In connection with his
ineffective assistance claims, Haynes filed a motion requesting a
remand under rule 23B of the Utah Rules of Appellate Procedure
for entry of factual findings necessary to establish his claims. We
reject Haynes’s claims of error by the trial court and of ineffective
assistance that are based on the record. We also determine that
Haynes has not met his burden under rule 23B on the ineffective
State v. Haynes

assistance claims for which he requests a remand. Accordingly,
we affirm Haynes’s convictions.

BACKGROUND 1

The Abuse

¶2 In 2004, eleven-year-old Emma moved from California to
Utah to live with Haynes—who was a friend of Emma’s late
father—and his wife, Ashley. 2 Initially, Emma’s relationship with
Haynes was positive, and she began calling him “dad.” 3
Eventually, however, Haynes began “tickling” Emma underneath
her bra and underwear. Emma initially “just brushed it off” and
tried to “assume[] that it was an accident.” When Emma would
“try to tickle back,” Haynes would challenge her to “find out
where he’s ticklish at.”

¶3 One morning in August 2007, just before Emma’s
fourteenth birthday, Haynes and Emma were alone in the house.
Haynes, wearing only a towel around his waist, came into
Emma’s bedroom and woke her up. He told her to come into his
bedroom, and Emma, thinking she was in trouble because Haynes
“came off kind of aggressive,” did as she was told. By the time

1. “On appeal from a jury trial, we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly,” and “we present conflicting evidence only as
necessary to understand issues raised on appeal.” State v. Speights,
2021 UT 56, n.1, 497 P.3d 340 (cleaned up).

2. Emma and Ashley are both pseudonyms.

3. While Haynes and Ashley were not Emma’s biological or
adoptive parents, Emma regarded them as her parents and called
them “dad” and “mom.”

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State v. Haynes

Emma entered his bedroom, Haynes had taken off the towel and
was getting under the sheets. He told her to get into bed with him,
and as she did, he said he would show her where he was ticklish
and grabbed her hand, putting it on his penis. Haynes moved her
hand over his penis, then pulled up Emma’s tank top and bra and
began sucking on her breasts. Emma was “nervous” and “just did
whatever he told” her, biting one of her fingers so she would not
cry. Next, Haynes pulled her pajama shorts and underwear down
around her legs and began licking her vagina. Haynes then
penetrated Emma’s vagina with his finger. Kicking her shorts and
underwear all the way off her, Haynes climbed on top of Emma
and penetrated her vagina with his penis. When he finished, he
told her to go back to bed. Before Haynes left for work, he came
into her bedroom, asking if she had any birthday money left, and
gave her fifteen dollars.

¶4 Emma showered and went to her best friends’ (the Twins)
house up the street. Emma struggled to tell the Twins what had
happened because she “just kept crying.” Eventually, Emma told
the Twins, their older sister, their mother, and their grandmother
what had happened. When they suggested she call the police,
Emma refused, not wanting to risk being sent back to California.
Emma also blamed herself for the assault because she “was
wearing short shorts.” A few days later, the Twins’ older sister
gave Emma a pregnancy test.

¶5 After that day, Haynes began acting differently with
Emma, reading her journals, forbidding her from hanging out
with the Twins, and getting upset when he found out she had a
boyfriend. His behavior around Emma escalated into violence,
with him slamming her against the cupboards one time and
breaking her vanity mirror on another occasion. Emma “was
scared of” Haynes and tried to avoid being alone with him.
Sometimes, if they were momentarily alone and people were in
other rooms of the house, Haynes “would just randomly come up

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State v. Haynes

and grab [Emma’s] face and kiss” her. The kissing kept Emma in
fear that Haynes would rape her again.

¶6 One day in 2009, Haynes “started yelling” at Emma when
her school sent home a notice about her numerous absences.
Haynes pushed Emma out of their front door and told Ashley, “if
you don’t get that little fucking bitch out of here, I’m going to kill
her.” Emma was then sent to live with her aunt in California.

The Disclosure and Investigation

¶7 While in California, Emma began therapy after having
nightmares about the abuse, cutting herself, and attempting
suicide. Emma disclosed Haynes’s abuse to her therapist, who in
turn reported it to the police. When officers contacted Emma, she
told them she did not want to press charges because she “wanted
to go home,” which she still considered to be in Utah with Haynes
and Ashley. The officers asked Emma to write a statement to that
effect. The note stated, “I, [Emma], feel nothing should be done
with this case, I will not break up my family, or have anything
happen to them. I’m not willing to discuss what happened
sexually to me.”

¶8 In early 2010, a social worker from California called Ashley
and disclosed that Emma had been sexually abused in Ashley’s
home but did not say by whom. Ashley then called Emma, but
when Emma revealed it was Haynes who had abused her, Ashley
hung up the phone because she didn’t want to believe Emma.
After that, Ashley cut off contact with Emma for the next few
years, even when Emma messaged her on Facebook, “I still care
about you guys. What happened wasn’t my fault. I shouldn’t be
the one getting blamed for what [Haynes] did to me . . . . I still
love you . . . . I want my family back.” Ashley continued to ignore
Emma, even after Emma moved back to Utah in 2012 to live with
her sister.

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¶9 In 2014, Ashley’s father had an eightieth birthday party
and wanted Emma to attend. Ashley reached out to Emma and
invited her to the party, and they began talking about the details
of the abuse for the first time. Emma’s description of how Haynes
had kissed her changed Ashley’s mind, and she then believed
Emma’s account. Ashley—no longer married to Haynes but still
friends with him—confronted Haynes at a backyard barbecue
that day about the abuse allegations. Haynes said nothing in
response and “just walked in the house.”

¶10 Emma eventually reported the abuse to the police in Utah.
Officers interviewed Haynes, who denied the abuse but admitted
that he often played a tickling game with Emma and that he broke
her vanity mirror. Haynes also suggested Ashley “was coaching”
Emma to make these accusations.

The Charges and Motion for Pre-trial Detention

¶11 In 2020, the State charged Haynes with one count of rape
of a child, three counts of aggravated sexual abuse of a child, and
one count of sodomy upon a child. The State simultaneously filed
a motion for pre-trial detention arguing that there was
“substantial evidence supporting [Haynes’s felony] charges” and
clear and convincing evidence that he “would constitute a
substantial danger to any other individual or to the community.”
The State pointed to, among other things, Haynes’s involvement
in the Vagos Motorcycle Club/Gang 4 (the gang) and a recent

4. “The 2011 National Gang Threat Assessment designated the
Vagos as a criminal organization and ‘Outlaw Motorcycle Gang.’”
Godwin v. Rogue Valley Youth Corr. Facility, No. 1:12-CV-00478-MC,
2017 WL 3816150, at *1 (D. Or. Aug. 31, 2017). An Outlaw
Motorcycle Gang is one “whose members use their motorcycle
clubs as conduits for criminal enterprises.” Id. at *1 n. 2 (cleaned
up).

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State v. Haynes

assault against Ashley’s son (Stepson)—who was Haynes’s
stepson and like a brother to Emma—by gang members that
Haynes may have been involved with. The court granted the
motion.

The Preliminary Hearing

¶12 At the preliminary hearing on the charges, the State elicited
testimony concerning Haynes’s association with the gang. A
detective (Detective) testified that although Haynes was involved
with the gang, he had no gang-related criminal charges apart from
the recent investigation into Stepson’s assault. The assault took
place at a bar in Salt Lake County. According to Detective, the
assault allegedly occurred because Stepson was talking to gang
members about Emma’s allegations against Haynes. Detective
also testified that the investigation into the assault provided
evidence of Haynes’s involvement with the gang. He explained
that when police executed a search warrant related to the assault,
they found a gang patch. He further testified that Haynes told
other gang members on a jail phone call that they could consult
with him and get assistance from him.

The Motions to Dismiss

¶13 Before trial, Haynes filed a motion to dismiss, claiming his
right to due process had been violated by the State’s failure to
preserve relevant evidence. 5 At a hearing on the pre-trial motion,
Haynes alleged that evidence from Emma’s disclosure of the
abuse to her California therapist in 2010 had been destroyed.
When the trial court asked Haynes “precisely what . . . evidence”

5. Haynes also filed a post-trial motion to dismiss that raised
nearly identical issues as the pre-trial motion. The trial court’s oral
ruling on the pre-trial motion likewise resembles the court’s
written ruling on the post-trial motion. Because they are
essentially identical, we describe and consider them together.

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State v. Haynes

he believed “was lost or destroyed,” Haynes explained that
Emma’s disclosure in 2010 had set in motion an investigation by,
and communication between, California’s and Utah’s child
welfare and law enforcement agencies, but that only some of that
documentation still existed because so much time had elapsed.
Haynes pointed to the following attachments in his motions:

• a fax cover sheet from California’s child welfare agency to
Utah’s, stating that Emma “disclosed to her therapist
forcible [sexual abuse] occurred 2 years ago in” Utah;

• the body of that fax containing the California report sent to
law enforcement, stating that “2 years ago, when [Emma]
was 14 years old,” Haynes “came into her room and
forcibly had sexual intercourse with her”;

• a dispatch log by the California police stating Emma
“refused[] to speak to” the officers and she told them “there
was no crime”; and

• an email from a forensic specialist (Expert) at the Utah
Children’s Justice Center to a detective in which Expert
explained that Emma “reported sexual abuse that would
have occurred [in Utah] a few years ago to her therapist,”
but that Emma “denied the abuse” to police and “recanted
because she [did] not want the family to be upset with her.”

¶14 From these documents, Haynes inferred that there must be
more, and potentially exculpatory, documentation about Emma’s
case. The trial court disagreed and denied the motions to dismiss,
finding there “is no evidence that there are any additional”
reports from law enforcement or child welfare agencies. The court
further explained that “[g]iven that the complaining witness and
perpetrator were living in different states and [the complaining
witness] did not appear to be in any immediate danger, there is
no reason to expect any further investigation or reports from”

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State v. Haynes

California’s child welfare agency. Moreover, the trial court found
there was “no evidence that any other exculpatory therapist
records exist” and Emma’s alleged recantation came from
comments she made on Facebook, not from supposedly now-
destroyed records. Thus, the trial court concluded that Haynes
had “not met his burden to establish that the State failed to
preserve any evidence, let alone exculpatory evidence,” and
denied the motions.

The Rule 404(b) Motion

¶15 Haynes also filed a pre-trial motion to exclude any mention
of any of his prior bad acts under rule 404(b) of the Utah Rules of
Evidence. Haynes specifically sought to exclude his gang
membership and his prior assaults. The parties stipulated that
unless Haynes “open[ed] the door,” the State would not admit
evidence that (1) Haynes “is a member of the . . . gang,” (2) Haynes
“has prior assaultive behaviors unrelated to” Emma, and (3)
Haynes “has a character trait of being violent.”

The Trial

¶16 During the three-day jury trial, the State called various
witnesses—including Emma, Ashley, one of the Twins (Friend),
the Twins’ older sister, and their mother—who testified about the
events as described above. Emma testified she never told anyone
the abuse did not happen or that she “made it up.” On cross-
examination, Emma was asked about her preparation for trial
with the prosecutor. Emma answered that they had met three
times in person and had several phone calls. On redirect, the
prosecutor asked Emma what the prosecutor had explained was
the “most important rule . . . about testifying,” and Emma
answered, “To tell the truth.” Emma was also asked, on cross-
examination, about an exchange she had on Facebook with her
sister-in-law about Haynes. Emma responded, in part, “[My
sister-in-law] never stopped talking to me. She believed me.”

20220420-CA 8 2025 UT App 75
State v. Haynes

Counsel objected, moving to strike the statement as
nonresponsive. The trial court overruled the objection and said,
“You can’t object to your own question, Counsel.”

¶17 Counsel did not object, however, to two other similar
statements from other witnesses. First, Ashley testified about how
she initially did not believe Emma’s account but that she later
changed her mind and believed Emma. And Friend testified, “I
knew something was bothering her,” when Emma came over after
the assault. When asked how she knew, Friend replied, “Because
we, like, knew each other where you can’t lie to each other. Like,
we knew when something was wrong.”

¶18 The State also introduced a yearbook photo of Emma from
2007 and a photo of her on vacation in 2006 to demonstrate how
Emma looked around the time of the abuse. Emma testified that
during 2007, she would ride bikes, go to the water park, and
“hang out with friends. You know, just be kids. Watch TV.” She
added, “We were still young so it was before . . . social media.”
The State also introduced a photo of Emma and Haynes together
before Emma’s prom to demonstrate the size difference between
the two and the “physics of what happened” when his body was
on top of hers. In the photograph, Emma is wearing a dress while
Haynes is wearing a t-shirt with the sleeves cut off that says “just
do me,” under a symbol that resembles the Nike Swoosh.

¶19 During the defense’s case, Counsel called Expert and asked
her about her email in which she stated Emma had “recanted” her
allegations of abuse. Expert testified she never met Emma, nor did
she recall the basis on which she had said Emma recanted; she
also offered her view that Emma’s statement to the California
police asking it not to proceed with the case was not a recantation
by Emma. Expert defined the term “recant” as “when a child
makes a disclosure of something and then they rescind that
disclosure and say never mind, it didn’t really happen.” Expert

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State v. Haynes

also stated that it is common for children to recant and agreed that
lack of family support is a significant factor for recanting or
delayed reporting.

¶20 In closing, Counsel emphasized that Haynes had “no
burden here” and argued that the State had not met its burden of
proof in the case. Counsel asked, “Where are all the other
witnesses that [Emma] disclosed to?” and then proceeded to list
off names of witnesses that the defense believed the State should
have called to testify. In its rebuttal closing, the State explained it
did not call more of the witnesses to whom Emma disclosed the
abuse because the testimony would be inadmissible as hearsay or
it would violate patient-therapist confidentiality. The State also
argued that there was “zero evidence, zero, that [Emma]
recanted.”

¶21 After deliberation, the jury found Haynes guilty on all five
counts. He was later sentenced to five concurrent prison terms of
fifteen years to life.

ISSUES AND STANDARDS OF REVIEW

¶22 Haynes now appeals and presents numerous issues for
review. First, he argues the trial court erroneously denied his
motions to dismiss, maintaining that his right to due process was
violated because the State destroyed exculpatory evidence.
“Whether the State’s destruction of potentially exculpatory
evidence violates due process is a question of law that we review
for correctness, though we incorporate a clearly erroneous
standard for the necessary subsidiary factual determinations.”
State v. DeJesus, 2017 UT 22, ¶ 18, 395 P.3d 111 (cleaned up).

¶23 Next, Haynes argues Counsel rendered ineffective
assistance by failing to object to (1) bolstering, (2) other-acts
evidence, (3) Expert’s testimony on recantation, and

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State v. Haynes

(4) prosecutorial misconduct. “When a claim of ineffective
assistance of counsel is raised for the first time on appeal, there is
no lower court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as a
matter of law.” State v. Lisenbee, 2022 UT App 19, ¶ 8, 505 P.3d 523
(cleaned up).

¶24 Finally, Haynes has also filed a motion under rule 23B of
the Utah Rules of Appellate Procedure, asking us to remand the
case to the trial court to develop the record on additional
ineffective assistance claims. 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. The Motions to Dismiss

¶25 Haynes contends his state constitutional due process rights
were violated when the trial court denied his motions to dismiss
for destruction of evidence. We disagree.

¶26 “It is a matter of clear Utah law that criminal defendants
are entitled to information possessed by the State to aid in their
defense.” State v. Tiedemann, 2007 UT 49, ¶ 40, 162 P.3d 1106. But
it is equally clear that Utah law requires a defendant making a due
process claim based on the loss or destruction of evidence to meet
a threshold showing that there is “a reasonable probability that
the lost evidence would have been exculpatory.” State v. DeJesus,
2017 UT 22, ¶ 22, 395 P.3d 111. To meet this threshold
requirement, “a defendant must make some proffer as to the lost
evidence and its claimed benefit” that “is not pure speculation or
wholly incredible.” Id. ¶ 39. Only after this threshold showing is

20220420-CA 11 2025 UT App 75
State v. Haynes

met does a court “balance the culpability of the State and the
prejudice to the defendant in order to gauge the seriousness of the
due process violation and to determine an appropriate remedy.”
Id. ¶ 27.

¶27 Here, the trial court concluded Haynes did not meet the
threshold requirement because there was “no evidence that there
are any additional” reports from law enforcement or child welfare
agencies, and “there [was] no evidence that any other exculpatory
therapist records exist.” We agree with the trial court that Haynes
has fallen far short of his burden here.

¶28 Before Haynes can demonstrate that lost evidence was
potentially exculpatory, he must demonstrate that there was lost
evidence to begin with. He has presented nothing but speculation
on both fronts. A mere inference that because there were some
reports from law enforcement and child welfare agencies there
must have been more reports is insufficient to establish a loss of
evidence. Because Haynes did not meet the threshold
requirement of showing that there was exculpatory evidence or
“a reasonable probability that the lost evidence would have been
exculpatory,” we hold that his state constitutional due process
rights were not violated when the trial court denied his motions
to dismiss for destruction of evidence. Id. 6

II. Ineffective Assistance

¶29 Haynes asserts Counsel provided ineffective assistance by
not objecting to (1) bolstering, (2) other-acts evidence, (3) expert

6. Haynes also argues on appeal that the State violated his due
process rights by allowing witnesses’ memories to be “lost to
time.” We decline to address this argument, both because it was
not preserved for appeal and because no Utah case law supports
such a notion.

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State v. Haynes

testimony, and (4) prosecutorial misconduct. We disagree with
respect to all of his claims.

¶30 “[T]he Sixth Amendment does not guarantee the right to
perfect counsel; it promises only the right to effective assistance.”
Burt v. Titlow, 571 U.S. 12, 24 (2013). To prevail on an ineffective
assistance of counsel claim, a defendant must meet the two-prong
test set forth by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). “First, the defendant must show
that counsel’s performance was deficient,” meaning that
“counsel’s representation fell below an objective standard of
reasonableness.” Id. at 687–88. Even if counsel “made an error, the
ultimate question is always whether, considering all the
circumstances, counsel’s acts or omissions were objectively
unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350.
“Second, the defendant must show that the deficient
performance prejudiced the defense,” in “that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 687, 694. To demonstrate ineffective
assistance, both deficient performance and prejudice “must be
present.” State v. Herrera, 2025 UT App 1, ¶ 16, 563 P.3d 416. “If
either is lacking, the claim fails, and the court need not address
the other.” Id. (cleaned up).

¶31 Before turning to our analysis of Haynes’s claims, we
reiterate our court’s prior admonition that ineffective assistance
of counsel claims are “not an invitation to flyspeck the record and,
with the luxury of time and the benefit of hindsight, identify ways
in which counsel might have been even more effective.” State v.
Boyer, 2020 UT App 23, ¶ 65, 460 P.3d 569. And we note that “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

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State v. Haynes

appeal.” State v. Draper, 2024 UT App 152, ¶ 124, 560 P.3d 122
(cleaned up).

¶32 Here, we have considered each of Haynes’s numerous
ineffective assistance of counsel claims, but we conclude that none
of them demonstrate that Counsel provided constitutionally
ineffective assistance. We address below those “claims for which
we think some analysis is justified or otherwise helpful.” Id.

A. Bolstering

¶33 Haynes asserts Counsel should have objected to several
instances of alleged bolstering. We briefly describe then address
each in turn, concluding that Counsel did not render ineffective
assistance.

1. Ashley’s Testimony that She Believed Emma

¶34 Ashley testified about how she initially did not believe
Emma’s account of the abuse but then changed her mind and
eventually did believe Emma. Haynes argues that Counsel’s
failure to object to this testimony was deficient performance that
prejudiced Haynes because, as he sees it, Ashley offered an
opinion on Emma’s truthfulness. The State conceded at oral
argument that Counsel’s performance was deficient on this point.
We thus address the prejudice relevant to Ashley’s testimony
along with another ineffective assistance claim asserted by
Haynes, discussed infra ¶ 46, in order to assess whether there was
cumulative prejudice from the multiple instances of deficient
performance. See infra ¶¶ 72–78.

2. Testimony from Friend and Emma

¶35 Haynes asserts that there were additional instances of
improper bolstering of Emma and argues that Counsel’s failure to

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object to this testimony amounted to ineffective assistance. 7 First,
Friend testified that when Emma came to her house after the
abuse, she “knew something was bothering [Emma].” When
asked how she knew, Friend replied, “Because we, like, knew
each other where you can’t lie to each other. Like, we knew when
something was wrong.” Second, when responding to a question
about whether she ever had a Facebook exchange with her sister-
in-law, Emma replied, “[My sister-in-law] never stopped talking
to me. She believed me.” Although Counsel objected to the
nonresponsive element of this particular testimony, he did not
object to the statement on bolstering grounds, and Haynes argues
this error was deficient performance. 8

7. One of the instances Haynes points to was not bolstering. In
response to Counsel’s questioning of Emma about her
preparation for trial, the prosecutor asked Emma what she had
told Emma was the “most important rule . . . about testifying.”
Emma answered, “To tell the truth.” Witnesses do not “bolster”
their own testimony by testifying that they are telling the truth.
See State v. Sanchez-Jacobo, 282 P.3d 880, 886 (Or. Ct. App. 2012)
(concluding that “a witness does not impermissibly ‘vouch for’ or
‘bolster’ his or her own testimony by proclaiming truthfulness”).
We therefore decline to further address this claim.

8. Haynes also asserts that failing to strike this testimony was
plain error by the trial court. But as we explain below, see infra
¶¶ 40–41, it was not deficient performance for Counsel to elect not
to object on bolstering grounds. And where Counsel had a
strategic reason not to object, it was not plain error for the court
not to strike the testimony from the record. See State v. Bedell, 2014
UT 1, ¶ 26, 322 P.3d 697 (“Plain error does not exist when a
conceivable strategic purpose exists to support the use of the
evidence.” (cleaned up)).

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¶36 Under the deficient performance prong of Strickland, a
defendant must “overcome the presumption that the challenged
action might be considered sound trial strategy.” Provo City v.
Bishop-Garcia, 2022 UT App 16, ¶ 17, 505 P.3d 81 (cleaned up).
Even if a strategic reason for failing to object does not exist, this
court must consider “whether correcting the purported error was
sufficiently important under the circumstances that failure to do
so was objectively unreasonable—i.e., a battle that competent
counsel would have fought.” Id. (cleaned up).

¶37 Haynes points to Bishop-Garcia to support his assertion that
this testimony “was obviously inadmissible bolstering.” In Bishop-
Garcia, the defendant argued on appeal that his trial counsel
provided ineffective assistance, in part because counsel failed to
object to two statements by a police officer witness that
commented on the victim’s truthfulness. Id. ¶¶ 1, 15, 19. First, the
prosecutor asked the officer whether he found the victim “to be
credible,” to which the officer replied, “Yes.” Id. ¶ 21. Second,
when asked by the prosecutor why he arrested the defendant, the
officer explained that the victim’s statements were “consistent”
and “not changing,” whereas the defendant’s statements were not
consistent. Id. ¶ 22. This court explained that though “merely
observing that a witness’s statements are consistent does not
necessarily amount to bolstering,” the officer in this instance did
not only “state that [the victim’s] account was consistent.” Id.
Rather, “in context the officer gave the equivalent of an
affirmative statement that [the defendant] was being untruthful
when he interviewed him.” Id. (cleaned up). Thus, this court
concluded both statements warranted an objection under rule
608(a) of the Utah Rules of Evidence. Id.

¶38 Recently, this court was asked to consider a similar issue.
In State v. Herrera, 2025 UT App 1, 563 P.3d 416, the defendant also
argued ineffective assistance of counsel on appeal, comparing the
statements made by a police officer witness in his trial with the

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statements of the officer in Bishop-Garcia. The prosecutor asked the
officer, “After your interview of [the defendant], was there
anything else of note that occurred—that you did?” Id. ¶ 25. In
response, the officer said, “I made a decision kind of with his
inconsistencies of the interview, the statements, injuries, and
stuff—I mean, I made an ultimate decision to place him under
arrest.” Id. ¶ 24.

¶39 This court disagreed with the defendant’s assessment that
the situation was like that in Bishop-Garcia. Id. We explained that
in Bishop-Garcia, counsel’s performance was deficient because
counsel had “ample opportunity to object and prevent the error
where the prosecutor overtly elicited each instance of inadmissible
testimony.” Id. ¶ 25 (emphasis added) (cleaned up). However, in
Herrera, the prosecutor did not overtly elicit inadmissible
testimony. Id. In fact, “it would have been impossible for counsel
to predict that [the] officer was going to respond to the
[prosecutor’s] general question with a statement discussing [the
defendant’s] credibility.” Id. (cleaned up).

¶40 Based on the facts before us, the testimony at issue in the
present case more closely resembles the situation in Herrera than
the situation in Bishop-Garcia. Counsel could not have expected
Friend would say that she and Emma could not “lie to each other”
in response to the general follow-up question, “How did you
know that [Emma was upset]?” Nor could Counsel have
predicted that Emma would respond to a simple question about
whether she ever had a Facebook exchange with her sister-in-law
with a comment that her sister-in-law believed her.

¶41 When a witness “spontaneously volunteer[s] an
inadmissible opinion, Counsel ha[s] to decide whether to object
and request a curative instruction.” Id. ¶ 26. “Deciding whether to
object to testimony and request a curative instruction after the
jury already heard it is a strategic decision.” Id. (cleaned up). After

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all, the act of objecting, combined with the instruction from the
trial court to disregard the testimony, may well solidify the
particular testimony in the mind of the jurors when they were
otherwise inclined to dismiss or ignore it. See State v. King, 2024
UT App 151, ¶ 33, 559 P.3d 96 (“[W]e have often held that
decisions regarding whether to move to strike and seek a curative
instruction are highly strategic ones that courts are loathe to
second-guess.”); State v. Tippets, 2021 UT App 137, ¶ 29, 501 P.3d
570 (“Choosing to forgo a limiting instruction can be a reasonable
decision to avoid drawing attention to unfavorable testimony.”
(cleaned up)). Accordingly, declining to object and request an
instruction “may be considered sound trial strategy.” Herrera,
2025 UT App 1, ¶ 26 (cleaned up). Thus, in this situation, Counsel
did not perform deficiently.

B. Other-Acts Evidence

¶42 Haynes asserts that Counsel failed to object to the
introduction of a litany of evidence that he claims was
inadmissible other-acts evidence under rule 404(b) of the Utah
Rules of Evidence. We categorize this testimony as follows:
(1) Haynes’s “tickling” of Emma and post-rape behavior by
Haynes and Emma, (2) three photographs of Emma around 2007,
and (3) a screenshot of Emma’s Facebook message to Ashley. 9 The
State asserts these claims are inadequately briefed but, even if
they were, Haynes’s list does not constitute impermissible other-

9. The State admitted the screenshot as two separate exhibits.
However, the exhibits are photos of the same message. Because of
this, we refer to the screenshot in the singular.

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State v. Haynes

acts evidence. 10 We agree with the State that the evidence does not
fall within the prohibitions of rule 404(b) and that Counsel did not
perform deficiently in failing to object.

¶43 Generally, other-acts evidence “is not admissible to prove
a person’s character in order to show that on a particular occasion
the person acted in conformity with the character.” Utah R. Evid.
404(b)(1). An exception to this rule arises where a proper non-
character purpose exists for the admission of the evidence. Id. R.
404(b)(2); State v. Fredrick, 2019 UT App 152, ¶ 41, 450 P.3d 1154.
“The threshold [rule] 404(b) question is whether the evidence has
a plausible, avowed purpose beyond the propensity purpose that
the rule deems improper. If it does then the evidence is
presumptively admissible (subject to rule 402 and 403 analysis).”
State v. Thornton, 2017 UT 9, ¶ 58, 391 P.3d 1016 (emphasis
omitted).

1. Tickling and Post-rape Behavior

¶44 The first category of other-acts evidence Haynes takes issue
with Counsel not objecting to includes Haynes’s pre-rape
“tickling” of Emma, Haynes’s post-rape kissing of Emma,
Haynes’s post-rape violence toward Emma, and Emma’s post-
rape mental health. Here, none of this evidence was admitted to
show that Haynes “acted in conformity” with these other acts.
Utah R. Evid. 404(b)(1). Instead, this evidence explained the
relationship between Haynes and Emma.

¶45 The pre-rape tickling goes to show why Emma would be
naive to the rape, while Haynes’s post-rape behavior—including

10. We observe that it is inherently difficult for an appellant to
adequately brief all of his arguments when asserting nearly thirty
of them. Although we have declined to address some of Haynes’s
arguments, see supra ¶¶ 31–32, we have elected to address the
arguments identified here.

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State v. Haynes

getting upset when Emma had a boyfriend, slamming her against
the cupboards, breaking her vanity mirror, and kissing her—
demonstrates control in the relationship and Haynes’s
consciousness of guilt. And all of this evidence speaks to why
Emma delayed reporting the rape. These are plausible purposes
beyond propensity, and therefore, the evidence would be
presumptively admissible. See State v. Tanner, 675 P.2d 539, 546
(Utah 1983) (holding that “evidence of specific instances of the
defendant’s treatment of the child is relevant to establish . . . a
specific pattern of behavior by the defendant toward one
particular child”), abrogated on other grounds by State v. Deporto, 935
P.2d 484 (Utah 1997). Because the evidence was admissible,
reasonable counsel would have no need to object. Thus, Counsel
was not ineffective by failing to object to this category of other-
acts evidence.

2. Photographs of Emma

¶46 The second category of other-acts evidence Haynes takes
issue with Counsel not objecting to is a series of three
photographs: two that show Emma around the time of the rape
and one that shows Emma and Haynes together to demonstrate
the size difference between the two at the time the rape occurred. 11
Haynes argues that Counsel should have objected to these
photographs because they were irrelevant and their probative
value was substantially outweighed by the risk of unfair prejudice
to Haynes. See Utah R. Evid. 401 & 403. Here, we elect to evaluate
this issue on prejudice. See Strickland v. Washington, 466 U.S. 668,

11. Haynes presented his argument regarding the photographs as
one concerning “other-acts evidence,” which is addressed by rule
404(b) of the Utah Rules of Evidence. Although we analyze the
argument under rules 401 and 403 of the Utah Rules of Evidence,
we nonetheless include it under the “other-acts evidence”
heading for organizational convenience.

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State v. Haynes

697 (1984) (“If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, . . . that course should
be followed.”). We address later in this opinion whether Haynes
suffered prejudice from Counsel’s failure to object to the
photographs. See infra ¶¶ 72–78.

3. Screenshot of Messages

¶47 The final category of other-acts evidence that Haynes
argues Counsel should have objected to is a screenshot of a
Facebook message Emma sent to Ashley. In the message, Emma
states that she “shouldn’t be the one getting blamed for what
[Haynes] did” and the two of them “should talk about this like
adults.” Haynes argues that Counsel’s failure to object was
deficient because the message was “substantially more unfairly
prejudicial than probative.” See Utah R. Evid. 403 (“The court may
exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice . . . .”). We
disagree.

¶48 Haynes’s defense was to attack Emma’s credibility.
Counsel told the jury during his opening statement that Emma
“changed her story over the years,” and in his police interview,
Haynes explained away Emma’s allegations against him by
saying that Ashley “was coaching her.” Counsel could have
rightly assumed that the screenshot would be admissible as a
prior consistent statement to show that Emma told Ashley about
the incident prior to any alleged coaching. See Utah R. Evid.
801(d)(1)(B). Thus, Counsel could have reasonably determined
that any objection to the screenshot under rule 403 would be
unsuccessful. Therefore, it was not deficient performance for
Counsel not to object to the screenshot.

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State v. Haynes

C. Expert Testimony

¶49 Haynes contends Counsel was ineffective in relation to
testimony from Expert—a witness called by Counsel during
Haynes’s case-in-chief—in several instances: (1) when Counsel
failed to object to Expert’s testimony that recantation is common
among children in sex abuse cases, (2) when Counsel failed to
object to Expert’s testimony that Emma did not want to disclose
her allegations or know what recantation meant, and (3) when
Counsel failed to clarify Expert’s opinion about Emma’s
recantation. We do not find Counsel’s performance to be deficient
on any of these grounds.

1. Commonness of Recantation

¶50 As an initial matter, there is no merit to Haynes’s
insinuation that Expert was not a qualified expert witness. Under
rule 702(a) of the Utah Rules of Evidence, “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). For specialized knowledge to
“serve as the basis for expert testimony,” there must be “a
threshold showing that the principles or methods that are
underlying in the testimony . . . are reliable, . . . based upon
sufficient facts or data, and . . . have been reliably applied to the
facts.” Id. R. 702(b). Our supreme court has clarified that a
“threshold showing is satisfied if the underlying principles or
methods, including the sufficiency of facts or data and the manner
of their application to the facts of the case, are generally accepted
by the relevant expert community or if the testimony meets a
threshold showing of reliability.” State v. Lopez, 2018 UT 5, ¶ 21,
417 P.3d 116 (cleaned up).

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State v. Haynes

¶51 Here, both Haynes and the State elicited testimony from
Expert that met this threshold showing. Expert has worked with
child abuse victims for nearly twenty years. In various roles with
the Utah Children’s Justice Center, she monitored interviews of
children, conducted research, and provided resources for families
to navigate the justice system. At some points in her career, she
oversaw approximately six to seven thousand child abuse cases a
year. And Expert has published articles for the federal
government and spoken on news programs about recantations by
children.

¶52 Notwithstanding these qualifications, Haynes challenges
Expert’s testimony that “almost 25 percent of kids in sex abuse
cases recant the allegation.” He asserts that “[t]here was no
showing that [Expert’s] anecdotal data had statistical validity,”
citing both State v. Rammel, 721 P.2d 498 (Utah 1986), and State v.
Iorg, 801 P.2d 938 (Utah Ct. App. 1990). In State v. Garcia-Cardiel,
2024 UT App 174, 561 P.3d 692, cert. denied, 564 P.3d 959 (Utah
2025), this court recently distinguished these two cases from the
situation before it. There, the defendant claimed that an expert’s
statement that there is “some research that suggests that 60 to 80
percent of all [child] abuse is not reported at all or not reported
until adulthood resemble[d] the inadmissible probability
evidence in” both Rammel and Iorg. Id. ¶ 20 (cleaned up). We
disagreed.

¶53 In Rammel, “a detective testified that he did not think it was
unusual for [an] accomplice to have lied during his first
interrogation because most suspects lie when initially questioned
by police.” Id. ¶ 21 (cleaned up). Our supreme court found this
testimony to be inadmissible and noted that “probabilities cannot
conclusively establish that a single event did or did not occur and
are particularly inappropriate when used to establish facts such
as whether a particular individual is telling the truth at any given
time.” Id. (cleaned up).

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State v. Haynes

¶54 In Iorg, “an officer testified that at least fifty percent of the
thirty abuse victims she had worked with waited more than a year
to report the abuse,” going on to opine “that delayed reporting
was not an indication of the charge being fabricated or being
untrue.” Id. (cleaned up). The Iorg court held that the “officer’s
testimony had the same potential for prejudice as the testimony
condemned in Rammel because the anecdotal statistical evidence
weighed in on the victim’s truthfulness.” Id. (cleaned up).

¶55 Our court held that the testimony at issue in Garcia-Cardiel
was materially different from the testimony at issue in both
Rammel and Iorg because the expert’s “testimony about delayed
reporting was neither anecdotal nor used to bolster [other
witnesses’] truthfulness. Instead, [the expert’s] 60 to 80 percent
figure came from his experience interviewing victims” and the
expert “never testified specifically about [the victims’]
disclosures; he spoke only in general terms about delayed
reporting of child abuse.” Id. ¶ 22.

¶56 Counsel could have reasonably determined that Expert’s
testimony was not anecdotal and did not address Emma’s
truthfulness. Expert’s testimony that “almost 25 percent of kids in
sex abuse cases recant” was admissible because Expert has
performed research in her field related to recantation, and she was
not opining as to Emma’s truthfulness. Reasonable counsel could
have believed this testimony was admissible on these grounds,
and therefore failure to object was not deficient performance.

2. Expert’s Responses to Questions About Emma’s Testimony

¶57 Haynes argues that Counsel performed deficiently by not
objecting to two parts of Expert’s testimony: first, when Expert
read aloud Emma’s testimony that she did not want to disclose
the abuse and, second, when Expert repeated Emma’s testimony
that Emma did not know what “recant” meant. Haynes asserts
that Counsel should have objected to this testimony because

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State v. Haynes

Expert was relying “on anecdotal experience with others” and
was not qualified to “opine” on Emma’s knowledge of the word
recant. Haynes mischaracterizes the testimony that occurred.

¶58 On cross-examination, the State asked Expert to read a
portion of Emma’s preliminary hearing testimony. Then, the
following exchange occurred:

Q: [R]eviewing this passage from [Emma’s]
testimony, do you have an opinion as to whether or
not the child did not want to disclose the abuse?

A: Um, she said so. She tells the reason in her own
words.

Q: Okay. And what are those words that are
significant to you?

A: Um, that it was just easier to keep it a secret, and
she still had some kind of parts of a relationship
going with people at the time so it was easier just to
keep the other things a secret.

Q: And does she describe in that passage that . . . she
didn’t understand the word “recant”?

A: Yeah, she didn’t know what that word meant.

¶59 Based on this line of examination, it is evident that Expert
was not relying on anecdotal evidence, her experience with
others, or her training and experience in general. Expert merely
responded to questions about Emma’s own testimony that were
clear from Emma’s testimony itself. Expert made no comment on
whether Emma was being truthful in relation to that testimony.
Because reasonable counsel could assume that these portions of

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State v. Haynes

Expert’s testimony were admissible, Counsel was not deficient in
failing to object.

3. Expert’s Opinion About Emma’s Recantation

¶60 Haynes contends that Counsel acted unreasonably by
failing to “clarify” Expert’s testimony that Emma’s written
statement to California law enforcement officers was not a
recantation and should have asked Expert “whether the record of
[Emma] telling . . . officers that no crime occurred was a
recantation.” Haynes argues that this “left the impression that
[Expert], applying her expertise to sufficient facts, opined that
evidence did not support recantation, despite [Expert’s] email
indicating recantation.”

¶61 Again, Haynes mischaracterizes the record. On cross-
examination, the State asked Expert to read aloud the following
statement Emma made to California law enforcement officers: “I,
[Emma], feel nothing should be done with this case, I will not
break up my family, or have anything happen to them. I’m not
willing to discuss what happened sexually to me.”

¶62 After Expert read the statement aloud, her testimony went
as follows:

Q: So in your opinion, based on your many years of
being an expert in this area, is this a recantation?

A: It’s not.

Q: What is this really describing?

A: It’s acknowledging something happened but the
child isn’t in a position to talk about it right now,
because she’s worried about the impact to her
family.

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State v. Haynes

Accordingly, Expert testified only as to whether Emma’s written
statement was a recantation.

¶63 Haynes makes much of Expert’s email from 2010, but this
email does not change Expert’s testimony about Emma’s written
statement. The portion of the email Haynes relies upon reads as
follows: “The child is stating that the allegations are true but she
recanted because she does not want the family to be upset with
her.” When asked about her statement in the email that Emma
“recanted,” Expert testified that she could not remember why she
used that word or where she got the information, and she
confirmed that she did not speak with Emma. Thus, reasonable
counsel would not need to further clarify Expert’s opinion on
Emma’s written statement or ask further questions about the
email. And at this point in the testimony, Counsel could have
reasonably concluded that any additional questioning was only
going to further solidify—and emphasize for the jury—Expert’s
opinion that Emma had not recanted. Accordingly, Counsel did
not perform deficiently.

¶64 In sum, it was not deficient performance for Counsel to fail
to object to or clarify any of Expert’s testimony. Thus, Counsel did
not render ineffective assistance.

D. Prosecutorial Misconduct

¶65 Finally, Haynes argues Counsel was ineffective for not
objecting to two instances that he asserts constitute prosecutorial
misconduct: (1) the prosecutor’s statement in closing argument
that the rules of evidence prevented bringing in more witnesses
and that there was “zero evidence” of Emma recanting, and (2)
the prosecutor eliciting Detective’s testimony recounting
Haynes’s statement to police that Ashley coached Emma to accuse
him. We determine that Counsel’s performance in these regards
was not ineffective.

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State v. Haynes

1. Rules of Evidence and “Zero Evidence” Statement

¶66 Haynes complains that the prosecutor’s statements during
closing argument that there was “zero evidence” Emma had
recanted her allegation of rape against Haynes and that the rules
of evidence prevented the State from calling more witnesses
constituted prosecutorial misconduct. Prosecutors have
considerable freedom to discuss “properly admitted evidence and
reasonable inferences that may be drawn from it.” State v. Dew,
2025 UT App 22, ¶ 58, 566 P.3d 53, cert. denied, Apr. 23, 2025 (No.
20250288). “When we review an attorney’s failure to object to a
prosecutor’s statements during closing argument, the question is
not whether the prosecutor’s comments were proper, but whether
they were so improper that counsel’s only defensible choice was to
interrupt those comments with an objection.” State v. Houston,
2015 UT 40, ¶ 76, 353 P.3d 55 (cleaned up).

¶67 Even if we agreed with Haynes that the State’s arguments
were improper, we conclude that they were not “so improper as
to render trial counsel ineffective for not objecting to [them].” See
State v. Hulse, 2019 UT App 105, ¶ 44, 444 P.3d 1158 (cleaned up).
The prosecutor’s comments about there being “zero evidence”
that Emma recanted and the inability to call additional witnesses
were dispersed throughout a longer rebuttal closing argument.
See id. ¶¶ 43–44. And Counsel may have had strategic reasons for
not objecting, including to avoid further highlighting the
testimony by Expert that Emma did not recant and calling
attention to the many more witnesses that Emma told about the
abuse. See State v. King, 2024 UT App 151, ¶ 33, 559 P.3d 96
(explaining “the pink-elephant paradox” where “by being
told not to think about a thing, jurors may actually be more likely
to think about that thing”).

¶68 Moreover, the “failure of defense counsel to object to
statements made by a prosecutor during the closing is a matter to

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State v. Haynes

which we attach significance.” State v. Redcap, 2014 UT App 10,
¶ 33, 318 P.3d 1202 (cleaned up), abrogated on other grounds by State
v. Wall, 2025 UT App 25, 556 P.3d 726. “It is not only a sign that
what was said sounded less exciting at trial than appellate counsel
now would have it seem, but it is also some indication that the
tone and manner of the now challenged aspect of the prosecutor’s
argument were not unfairly prejudicial.” Id. Thus, we are reticent
to second-guess Counsel’s strategic decision not to interrupt
closing argument with an objection. Therefore, we conclude that
Counsel’s performance was not deficient in failing to object
during closing argument.

2. Eliciting Haynes’s Statements About Coaching

¶69 Haynes finally contends that Counsel was ineffective for
not objecting to the prosecutor eliciting testimony from Detective
that when he asked Haynes why Haynes had sexual activity with
Emma, Haynes’s response was that Ashley had coached Emma.
Haynes asserts that the State eliciting this testimony was
prosecutorial misconduct. It is first important to note that the
testimony did not come from Haynes directly because he did not
testify at trial. Thus, he was not asked under oath to comment on
the veracity of another witness. Rather, Haynes’s statements were
made during his police interview, and the jury heard them
recounted by Detective. The relevant part of Detective’s testimony
is as follows:

Q: I’m assuming that [Haynes] was asked in this
interview whether any sexual activity happened
between him and [Emma]?

A: Yes.

Q: And what did he say about that?

A: He said, “No, never.”

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State v. Haynes

Q: Okay. Did he say any reason why he thought
[Emma] would be saying that he had had sexual
activity with her?

A: He said that . . . [Ashley] . . . was coaching her.

¶70 This testimony was admissible as a statement of a party
opponent, see Utah R. Evid. 801(d)(2), and it was actually
beneficial to Haynes. Without having to take the risk of testifying
at trial, Haynes was able to have the jury hear that he denied the
allegations and also hear his theory of the case—Emma was
coached by Ashley. Thus, it was reasonable for Counsel not to
object to the testimony.

¶71 Because Counsel’s failure to object to any of the alleged
instances of prosecutorial misconduct was not deficient, Counsel
did not provide Haynes ineffective assistance.

E. Cumulative Prejudice

¶72 We identified above one instance where the State conceded
that Counsel’s performance was deficient—failing to object to
Ashley’s testimony that she changed her mind and believed
Emma, see supra ¶ 34—and one instance where we assumed that
Counsel’s performance was deficient—failing to object to the
admission of the photographs of Emma and of Emma and Haynes
together, see supra ¶ 46. We now consider whether these two
instances of Counsel’s deficient performance prejudiced Haynes.
See State v. Campos, 2013 UT App 213, ¶ 61, 309 P.3d 1160.

¶73 To reverse under the cumulative error doctrine, this court
“must determine that (1) an error occurred, (2) the error, standing
alone, has a conceivable potential for harm, and (3) the cumulative
effect of all the potentially harmful errors undermines its
confidence in the outcome.” State v. Martinez-Castellanos, 2018 UT
46, ¶ 42, 428 P.3d 1038; see also State v. Wright, 2013 UT App 142,

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State v. Haynes

¶ 44, 304 P.3d 887 (citing cases where our supreme court has
declined to apply the cumulative error doctrine). For purposes of
this analysis, we assume that each of these errors, standing alone,
had a “conceivable potential for harm.” Martinez-Castellanos, 2018
UT 46, ¶ 42. We next examine whether the cumulative effect of
these two errors prejudiced Haynes.

¶74 “To evaluate prejudice under Strickland, we assess
counterfactual scenarios—that is, what would have happened but
for the ineffective assistance.” State v. Soto, 2022 UT App 107, ¶ 25,
518 P.3d 157 (cleaned up). And “we consider whether, in the
absence of the improperly admitted evidence, the likelihood of a
different outcome is sufficiently high to undermine our
confidence in the verdict.” Id. (cleaned up). Applying this analysis
here, we are not convinced that “there is a reasonable probability
the result would have been better for” Haynes if the trial
proceeded without both Ashley’s testimony and the photographs.
State v. Garcia-Flores, 2021 UT App 97, ¶ 28, 497 P.3d 847.

¶75 The State presented strong evidence that Haynes had
raped Emma. The jury heard testimony from multiple witnesses
that Emma consistently maintained that Haynes raped her,
including Emma’s testimony about the various people she told
about the rape over the years; testimony from Friend, the Twins’
older sister, and their mother that Emma contemporaneously
reported the rape to them and the Twins’ grandmother; and
Emma’s report of the rape to her therapist. The jury also heard
testimony about Haynes’s change in behavior towards Emma
after the rape, and Emma’s testimony about her mental health
struggles.

¶76 Though Ashley’s testimony about changing her mind and
believing Emma added to the mix of evidence before the jury,
there was substantial evidence of the rape without her testimony,
and we are not persuaded that Ashley’s testimony had a

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State v. Haynes

significant impact on the outcome of the trial. C.f. State v. Nunes,
2020 UT App 145, ¶ 23, 476 P.3d 172 (explaining that “most jurors
are likely to assume that a mother will believe accusations of
sexual abuse made by her own children” and as a result this
evidence likely did not have a “significant impact on the jury’s
decision to convict” (cleaned up)).

¶77 The same is true for the photographs. Indeed, the
photographs likely had little, if any, impact on the jury reaching a
guilty verdict where they were merely used to demonstrate
Emma’s appearance in her youth and her size relative to Haynes.
And we do not agree with Haynes’s characterization of the
photograph in which Haynes was standing next to Emma
wearing a t-shirt with the phrase “just do me” as “portray[ing]
[Emma] as a princess, [and] Haynes as a sex-hungry slob.” The
photograph simply shows the two of them standing side-by-side
posing for the picture, with Emma smiling widely.

¶78 Accordingly, we see no reasonable probability that Haynes
would have been acquitted had the trial proceeded without both
Ashley’s testimony and the photographs. Thus, the cumulative
effect of these two errors does not “undermine[] our confidence
that a fair trial was had.” See Martinez-Castellanos, 2018 UT 46, ¶ 39
(cleaned up).

III. The Rule 23B Motion

¶79 In his rule 23B motion, Haynes requests this court remand
the case to the trial court to supplement the record on six
additional ineffective assistance claims that boil down to alleged
failures to adequately investigate or to call particular witnesses to
testify. We deny his request.

¶80 “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

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State v. Haynes

of ineffective assistance of counsel.” Utah R. App. P. 23B(a). Yet a
rule 23B motion 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.” Id. Consequently, to succeed on a rule 23B motion, “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.” State v.
Schoenenberger, 2024 UT App 187, ¶ 64, 562 P.3d 1174 (cleaned up).

¶81 To support the many ineffective assistance claims that
Haynes asserts against Counsel in his motion, he attached three
affidavits and two exhibits. The State contends “Haynes has not
presented facts, which, if true, could prove that Counsel was
ineffective.” We have reviewed the affidavits and exhibits and
determined that none of the claims presented have merit. We elect
to address only two. See Carter v. State, 2012 UT 69, ¶ 16 n.7, 289
P.3d 542 (“This court need not analyze and address in writing
each and every argument, issue, or claim raised . . . Rather, it is a
maxim of appellate review that the nature and extent of an
opinion rendered by an appellate court is largely discretionary
with that court.” (cleaned up)).

A. Testimony from Nephew

¶82 Haynes provided an affidavit wherein he stated that he
instructed Counsel to present testimony at trial from his nephew
(Nephew), who “spent a lot of time at [his] house” during the time
that Emma lived with Haynes. Haynes also provided an affidavit
from an investigator that discusses the investigator’s conversation
with Nephew. Nephew was willing to testify that Haynes’s house
had too many people in it for sexual abuse to go unnoticed and
that Emma’s first sexual experience was in 2008 with her
boyfriend rather than with Haynes. We do not think this

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State v. Haynes

testimony is evidence that supports either prong of the ineffective
assistance of counsel test.

¶83 It would not have been unreasonable for Counsel to decline
to call Nephew as a witness because, without more, the bare
number of people living in a home has no bearing on whether
sexual abuse could occur. Because this argument is rather weak,
it was not only reasonable to choose not to bring it, but failure to
do so would not have been prejudicial to Haynes. Such a weak
argument was unlikely to resonate with the jury.

¶84 Nor would testimony that Emma told Nephew that her
first sexual experience happened in 2008 with her boyfriend add
much to Haynes’s case. As with Nephew’s other testimony, it
would have been reasonable and not prejudicial for Counsel to
decline to have Nephew testify to Emma’s statement. Because
there is a significant difference between a rape and a first
consensual sexual experience, it is understandable, and within the
common sense of a juror, that, even if she had a sexual experience
after the rape occurred, Emma would have still said that the
consensual experience was her first sexual experience. Such a
statement is not inherently false and would not have proved that
Emma was lying. Thus, Nephew’s testimony could not
demonstrate that Haynes received ineffective assistance of
counsel.

B. Testimony from Relative

¶85 Haynes also stated in his affidavit that he instructed
Counsel to present testimony at trial from Stepson’s widow
(Relative)—who “spent a lot of time at [Haynes’s] house and
around both” Ashley and Emma—but that Counsel told Haynes
that he decided not to present Relative’s testimony because doing
so “would ‘open the door’ to the State presenting evidence that
[Haynes] was a member of the [gang].” The investigator’s
affidavit discusses his conversation with Relative. Relative was

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State v. Haynes

willing to testify that Emma “was a liar,” that Emma admitted to
her that Emma’s boyfriend sexually assaulted her, and that Emma
falsely accused Haynes.

¶86 While it is possible that evidence of Emma’s reputation for
dishonesty and of an admission that she falsely accused Haynes
could have benefited Haynes’s case, Counsel’s decision not to call
Relative as a witness was not unreasonable when viewed in the
broader context. After the State filed charges against Haynes, it
filed a motion for pre-trial detention, which the court granted,
alleging information about Haynes’s association with the gang.
Testimony by Detective at the preliminary hearing confirmed that
Haynes was involved with the gang and that some members of
the gang believed that the assault of Stepson was related to
Emma’s allegations against Haynes.

¶87 Counsel was representing Haynes when the motion for
pre-trial detention was filed and at the preliminary hearing, and
was well aware that this damaging information about Haynes’s
involvement with the gang could potentially be presented at trial.
Not surprisingly, Counsel filed a motion in limine to exclude all
evidence about the gang, which the court granted. The court’s
order noted that evidence of Haynes’s involvement in the gang
would be excluded “unless [Haynes] open[ed] the door.”

¶88 Haynes now maintains that presenting Relative’s
testimony would not have opened “the door for the State to
present evidence of Haynes’s membership in” the gang and that
the reason Counsel tried to exclude evidence of Haynes’s gang
involvement was speculative. But based on the record before us,
it is clear that the risk was high that the gang-related evidence
could have come in at trial had Haynes put Relative on the stand.
Relative was Stepson’s widow, and it is likely that the court would
have permitted questions regarding the gang’s involvement with
the assault on Stepson, his death, and any effect the gang had on

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State v. Haynes

both Relative’s willingness to testify and on the substance of her
testimony. Relative’s testimony presented a real risk of
undermining Haynes’s victory on the motion in limine excluding
the gang evidence. Thus, we cannot say that it was an
unreasonable strategic choice for Counsel to decide not to present
testimony from Relative in order to prevent the jury from hearing
any testimony about Haynes’s involvement with the gang. And
“we will not second-guess trial counsel’s legitimate strategic
choices” in assessing a claim of deficient performance. State v.
Dew, 2025 UT App 22, ¶ 64, 566 P.3d 53, cert. denied, Apr. 23, 2025
(No. 20250288).

¶89 In sum, we conclude that Haynes has failed to establish
that Counsel was ineffective for failing to call Nephew and
Relative to testify at trial. Accordingly, we deny his motion for a
rule 23B remand.

CONCLUSION

¶90 The trial court did not err in denying Haynes’s motions to
dismiss for lost evidence. Haynes has not carried his burden of
demonstrating that Counsel provided constitutionally ineffective
assistance. We also deny Haynes’s rule 23B motion for remand.
Thus, we affirm Haynes’s convictions.

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