State v. Mendoza

2025 UT App 179

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
STEPHEN MENDOZA,
Appellant.

Opinion
No. 20230090-CA
Filed December 11, 2025

Fourth District Court, Provo Department
The Honorable Robert A. Lund
No. 211401805

Staci Visser, Attorney for Appellant
Derek E. Brown and Connor Nelson,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred.

HARRIS, Judge:

¶1 A jury convicted Stephen Mendoza of rape of a child and
aggravated sexual abuse of a child. He now appeals the rape
conviction, asserting that his trial attorney rendered ineffective
assistance in various ways. For the reasons discussed below, we
reject Mendoza’s arguments and affirm.
State v. Mendoza

BACKGROUND 1

¶2 When Vanessa 2 was eleven years old, she told her mother
(Mother) that Mendoza, her stepfather, was sexually abusing her.
The next day, Mother took Vanessa and her younger brother
(Brother) to the police station to make a report. That same day,
Vanessa and Brother were interviewed at the Children’s Justice
Center (the CJC).

¶3 The first thing Vanessa told the CJC interviewer about the
abuse was, “My dad had sex with me.” She later identified her
“dad” as Mendoza. She explained that Mendoza would call it “oh,
yeah time.” Vanessa even said that she was “scared [she] was
going to get pregnant.” She reported that Mendoza began abusing
her when she was around four years old and that it happened
“practically . . . every time [Mother] was working.” Vanessa
offered a description of some of the instances of abuse: she said
that Mendoza “would have [her] pull [her] pants down” and lie
“down on the bed,” and “then he would take off his pants . . .
[and] he would put it on [her].” She later described “it” as being
“[h]is private part” that he uses to “[p]ee.” She explained that
Mendoza “would put it” on her “private part,” which she clarified
was the part that she used “[t]o go pee,” and that Mendoza would
move “it” “up and down” until “something [white] would
splatter.” And she said that during the incidents, Mendoza would
say “oh yeah” and call her “good girl” and “princess.”

¶4 Vanessa also told the CJC interviewer that there were times
when Mendoza would “make [her] put [her] hand on it.” She

1. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and we recite the facts accordingly. We
present conflicting evidence only when necessary to understand
issues raised on appeal.” State v. Popp, 2019 UT App 173, n.1, 453
P.3d 657 (cleaned up).

2. A pseudonym.

20230090-CA 2 2025 UT App 179
State v. Mendoza

described one such incident in detail, explaining that Mendoza
“just had [her] sit there” with her clothes on, then he “took off his
pants and his underwear” and “put . . . baby oil” on his “private
part.” Mendoza then had Vanessa “put one hand on top and just
do it like up and down” “until something white squirted out.” She
also said that Brother knew about the abuse because, on at least
one occasion when the family lived in Las Vegas, Brother “saw
[her] putting [her] hands on [Mendoza’s] private part.”

¶5 During his discussion with a separate CJC interviewer,
Brother reported that, “when [the family] lived in Las Vegas,
[Mendoza] would make [Vanessa] touch his parts,” but Brother
explained that he only “saw it happen” once and that he “didn’t
see it very well.” He reported that, when he was “five or four,” he
“saw [his] dad leaning down” over Vanessa, who was sitting on a
couch. As soon as Mendoza saw Brother, he told Brother “to go
back to [his] room.” Then, when asked what Vanessa had told him
about the incident, Brother reported that Vanessa had told him
that Mendoza “said to touch his parts.” The interviewer later
asked Brother to describe what he “saw in the living room,” and
Brother claimed to have seen Mendoza with “no pants on,” but
then clarified that he “didn’t know if [Mendoza] had no pants on.”
But in any event, he reported that Vanessa was “sitting down”
and that Mendoza “was laying down,” and that Vanessa was
“touching [Mendoza’s] parts” and that she “didn’t like it.” In
Brother’s interview, it is at times unclear whether Brother is
describing events he personally witnessed or whether he is
describing what Vanessa told him.

¶6 Mendoza was also interviewed after Mother reported the
abuse to the police; the interview was recorded on video, and the
recording is part of the record submitted to us. During the
interview, officers asked Mendoza about Vanessa’s allegation that
he made her rub his penis with her hand until white stuff came
out, and Mendoza responded as follows: “You know what? Fuck
it. Yeah. That did happen just one time.” Mendoza said that
Vanessa had asked him about sex and he wanted to show her “this
is what a penis looks like” so that she could get “all the

20230090-CA 3 2025 UT App 179
State v. Mendoza

information at home.” He said he eventually ejaculated after
Vanessa “just reached for it” and he told her “this is what you
gotta do . . . you just grab the stupid thing and just go up and
down.” But although Mendoza admitted to having Vanessa rub
his penis with her hand, he repeatedly denied ever having rubbed
his penis on Vanessa’s vagina.

¶7 Ultimately, the State charged Mendoza with two crimes.
The first count (Count 1), a first-degree felony, accused Mendoza
of committing rape of a child. The second count (Count 2), also a
first-degree felony, accused Mendoza of committing aggravated
sexual abuse of a child.

¶8 While he was in jail awaiting trial, Mendoza made a series
of phone calls to Mother. During one of those calls, he apologized
to Mother multiple times and, in response to Mother asking if he
did it because he was “drugged,” he said, “Maybe it’s because I
was drunk my love. The truth is I don’t know why I did it.”

¶9 Before trial, the State filed a notice of its intent to introduce
“other bad acts evidence as propensity evidence pursuant to rule
404(c)” of the Utah Rules of Evidence. In the notice, the State said
it “intend[ed] to introduce and argue evidence of [Mendoza’s]
propensity to commit acts of child molestation” and that it would
do so “through the testimony of [Vanessa],” in two different ways.
First, it intended to introduce evidence that Mendoza “molested”
Vanessa “on other occasions,” presumably referencing occasions
other than the two charged counts. Second, it stated that, because
Mendoza “admitted to” Count 2, it intended to argue that
Mendoza’s “commission of [Count 2] makes it more likely that he
committed the offense charged in” Count 1. Mendoza’s trial
attorney (Counsel) lodged no objection to the State’s notice, and
on the morning of the first day of trial, Counsel “stipulated to the
admission of” the State’s proffered rule 404(c) evidence.

¶10 At trial, during the State’s opening statement, the
prosecutor offered the following summary to the jury as to how it
could utilize the rule 404(c) evidence:

20230090-CA 4 2025 UT App 179
State v. Mendoza

And in this case, you’ll realize that the State has only
charged one count of rape of a child, and one count
of aggravated sexual abuse of a child. That doesn’t
mean we believe it only happened one time of each
of those offenses. We charged, at our discretion, one
charge for each. That means that you are allowed to
consider the years and the frequent [incidents] to
help you determine whether or not those two
charges happened. They can help guide you in your
decision.

The fact that [Mendoza] admitted to having
his daughter stroke his penis can help you
determine whether or not he raped her, as you
evaluate that evidence on its individual merits. And
any other act[s] of molestation that you hear in this
case are things that can help you determine whether
or not he committed the acts in this case. But
remember, we only charged one offense for each of
those pieces of conduct.

At that point, Counsel opted not to offer an opening statement of
his own, instead electing to “defer” any such statement “until
after the State’s case-in-chief.”

¶11 In support of its case-in-chief, the State presented the
testimony of several witnesses, including Mother, Vanessa,
Brother, the CJC interviewers, and a police officer, all of whom
testified about the events described above. During both Vanessa’s
and Brother’s testimony, the video recordings of their respective
CJC interviews were played.

¶12 During his testimony, Brother became very emotional, and
the attorneys agreed to ask no further questions of him and to
simply present the CJC interview recording. As that recording
was being played, the court told the State to pause the video.
Outside the jury’s presence, the court and the attorneys discussed

20230090-CA 5 2025 UT App 179
State v. Mendoza

the video, with the court offering its view that it “need[ed] to
instruct the jury . . . to consider [Brother’s] testimony only for
what he observed through his senses” and to “disregard . . .
anything that [Brother] says [Vanessa] told him.” The attorneys
agreed that such an instruction was proper. So, when the jurors
retook their seats, the court offered the following instruction:

During the publishing of . . . the CJC interview of
[Brother], you heard [Brother] . . . relate events that
he contends that he observed, and you heard him
speak about things that he contends that [Vanessa]
told him. I’m instructing you now to consider only
what [Brother] said that he saw, himself. And I’m
instructing you to disregard anything that he says
that any other person told him.

¶13 Later in the trial, during a recess, a juror submitted a
question to the court, asking, “[A]re we supposed to consider
allegations/accusations from Las Vegas, or just the ones in Utah?”
In response, the court gave the following instruction:

The State of Utah has charged the defendant with
two separate allegations. Those allegations relate to
charged conduct that occurred in Provo, Utah at a
specific residence. Those are the counts you’re here
to decide. Any other references to alleged sexual
activity that occurred elsewhere in Utah, at different
times in Utah, or in the State of Nevada . . . do not
relate specifically to the charged conduct. The State
has offered that evidence to assist you in evaluating
your decision as to whether the State has proven
Counts 1 and 2.

¶14 After the State rested, the court asked Counsel if he
“intend[ed] to offer an opening statement,” and Counsel
responded that he was “actually going to waive that, [and] go

20230090-CA 6 2025 UT App 179
State v. Mendoza

right into calling [Mendoza] as [the defense’s] only witness.” At
that point, Mendoza took the stand to testify in his own defense.

¶15 Mendoza began by talking about his relationship with
Mother, and he offered his view that, right before Vanessa made
her allegations, his relationship with Mother “was real bad.” He
stated that he and Mother had been “arguing almost every day to
the point where” Mother “assaulted” Mendoza by holding “a
knife to [his] throat.” Mendoza considered that instance to be “the
last straw” in their relationship, and he testified that he then asked
Mother for a divorce.

¶16 With regard to the jailhouse phone calls, Mendoza said he
made the calls to express “remorse” to Mother for “everything
[he] had done,” including “the allegation [he] admitted to,”
presumably a reference to the penis-rubbing incident he
discussed in his police interview. But he testified that the calls
were not intended to convey remorse “for raping” Vanessa
because, he said, “[T]hat didn’t happen. I did not do that.”

¶17 Mendoza also addressed his police-interview admission
that Vanessa had rubbed his penis. He said he felt “really
pressured by [the officer] just to . . . say something.” Counsel
asked Mendoza, “[W]hy did you tell the police about this baby oil
situation?” Mendoza answered by saying, “I just couldn’t take it
anymore. I know what I did, and I wasn’t going to hide from it. . . .
So I felt like it was my responsibility to tell [the officer] exactly
what . . . happened, and what I did.” In further explaining himself,
Mendoza claimed that Vanessa had asked him “what sex was”
and that he “tried to explain it to her the best way possible, but
she wasn’t understanding,” so he “showed her” his penis by way
of explaining it to her and Vanessa “just ended up . . . reaching
out for it,” at which point “adrenaline started pumping” and “the
situation happened.”

¶18 After completion of the evidentiary presentations, the
court gave final instructions to the jury. One of those instructions
told jurors “to rely on [their own] memory of the evidence” if

20230090-CA 7 2025 UT App 179
State v. Mendoza

something a lawyer said conflicted with their recollection. And
another one discussed rule 404(c) propensity evidence, as follows:

You’ve heard evidence the defendant committed
acts of prior child molestation with [Vanessa], other
than those charged in this case. This evidence was
introduced to prove a propensity to commit the
crimes charged. Keep in mind that the defendant is
on trial for the crimes charged in this case, and for
these crimes only.

In that same instruction, the court told the jury that it “may not
convict [Mendoza] of the crimes charged simply because [it]
find[s] that [Mendoza] committed these [other] acts, or that he had
a character trait that predisposed him to commit the crimes
charged.” But the court told the jury that it “may consider these
other acts as additional proof that the charged acts were
committed.” And in a different instruction, the court explained
that Mendoza was charged with multiple counts, that the jury had
a “duty to consider each charge separately,” and that the jury’s
“verdict on one charge does not determine [its] verdict on any
other charge.”

¶19 After the instructions were read, the attorneys made their
closing arguments. In the State’s argument, the prosecutor
reminded jurors that they should “[r]ely on [their] own memory”
and that, if anything the prosecutor said was inconsistent with
jurors’ memories of the evidence, jurors should “go with what
[they] remember.” Later, the prosecutor specifically discussed
Brother’s CJC interview. He began by “remind[ing]” the jury of
“what the judge instructed” regarding Brother’s interview,
namely, that the jury was “only to consider what [Brother] saw
and heard himself” and not things Vanessa told him. The
prosecutor continued the discussion through the lens of his own
notes and told the jury, “[I]f your notes are different, . . . go with
what you remember.” With those caveats, the prosecutor then
offered the following argument:

20230090-CA 8 2025 UT App 179
State v. Mendoza

Here’s my notes.

[Brother] quote, “Only once I saw it happen.
Saw Dad laying down and sister on couch. Dad had
no pants on. My sister was touching his parts. Dad
told me to go back to room.”

¶20 The prosecutor also discussed the other-acts evidence, and
he explained that the jury was permitted to “use” the “things that
happened in Las Vegas” to help it “determine whether [the] two
[charged] crimes were committed.” In addition, the prosecutor
argued that the jury was permitted to “use one count to help show
that the other one happened.” He pointed out that Mendoza
“admitted to the aggravated sexual abuse of a child” and told the
jury that it could “use that to help . . . show that [Mendoza] raped
her” too. And the prosecutor added that the jury was also
permitted to “use any of the other evidence, the Las Vegas
incidents, . . . to show [guilt on] those two [charged] crimes.”

¶21 In his closing argument, Counsel began by telling the jury
that his “strategy” during the trial was not “to pick every battle”
but instead was to “focus in on what really [the defense was]
fighting against.” In that vein, Counsel stated plainly that
Mendoza was “not contesting” conviction on “Count 2, the
aggravated sexual abuse of a child” charge. Counsel said,
“[W]e’re picking our spots,” and that on Count 2 Mendoza
“should be found guilty.” But Counsel argued that Mendoza
should be acquitted on Count 1, the count accusing him of raping
Vanessa. And he argued that all of Brother’s testimony, to the
extent it was useful, went to Count 2 and not to the rape count.
He also reminded the jury that, while Mendoza had admitted to
Count 2, he had “steadfastly denied” the rape charge, and he
asked the jury to acquit on that count.

¶22 After deliberation, the jury found Mendoza guilty on both
counts, and the court later sentenced Mendoza to prison.

20230090-CA 9 2025 UT App 179
State v. Mendoza

ISSUE AND STANDARD OF REVIEW

¶23 Mendoza now appeals his conviction on Count 1, the rape
count, asserting that Counsel rendered constitutionally ineffective
assistance. “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. Popp, 2019 UT App 173, ¶ 19, 453 P.3d 657 (cleaned up).

ANALYSIS

¶24 To prevail on an ineffective assistance claim, a defendant
must satisfy the two-part test from Strickland v. Washington, 466
U.S. 668 (1984). Under that test, Mendoza must show “(1) that trial
counsel’s performance was objectively deficient and (2) that such
deficient performance was prejudicial.” Honie v. State, 2014 UT 19,
¶ 31, 342 P.3d 182. “Because failure to establish either prong of the
test is fatal to an ineffective assistance of counsel claim, we are free
to address [such] claims under either prong.” Id. (cleaned up); see
also Strickland, 466 U.S. at 687 (“Unless a defendant makes both
showings, it cannot be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the result
unreliable.”). Thus, “if either is lacking, the claim fails and this
court need not address the other.” State v. Kufrin, 2024 UT App 86,
¶ 55, 551 P.3d 416 (cleaned up). And with respect to the first part
of the test, an attorney’s performance is considered to be deficient
“if the alleged conduct fell below an objective standard of
reasonableness under prevailing professional norms.” State v.
Samora, 2023 UT 5, ¶ 20, 529 P.3d 330 (cleaned up).

¶25 In this case, Mendoza asserts that Counsel rendered
ineffective assistance in three particulars: (1) by failing to object to
what he calls “prosecutorial misconduct” when the prosecutor
argued, during both opening statement and closing argument,
that the jury could use evidence of guilt on Count 2 as propensity
evidence supporting a conviction on Count 1; (2) by not objecting

20230090-CA 10 2025 UT App 179
State v. Mendoza

to the State’s mischaracterization of Brother as an eyewitness to
instances of abuse; and (3) by offering no opening statement on
behalf of Mendoza. We discuss each of these claims, in turn.

I. Propensity Evidence

¶26 Mendoza argues that Counsel performed deficiently by not
objecting when the prosecutor, during both opening statement
and closing argument, argued that the jury was permitted to use
Mendoza’s admitted guilt on Count 2 as propensity evidence that
could contribute to a finding of guilt on Count 1. Mendoza asserts
that this argument is wrong and amounted to prosecutorial
misconduct, because factfinders are not ordinarily permitted to
use evidence of guilt on one charged count as propensity evidence
regarding another charged count; indeed, Mendoza asserts that
allowing this sort of argument serves to lower the State’s burden
of proof. On some of this, Mendoza might have a point: we can
see potential problems with allowing factfinders, in most cases, to
use evidence of guilt on one charged count as propensity evidence
on another charged count. But on the facts of this case, where
Mendoza admitted to the facts underlying Count 2 and even
invited the jury to find him guilty on that count beyond a
reasonable doubt, Counsel did not perform deficiently by opting
not to raise an objection to the State’s argument.

¶27 As a general rule, evidence of a person’s prior bad acts 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). Such evidence is, however,
admissible for non-character purposes. See id. R. 404(b)(2)
(“[E]vidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”); see
also State v. Thornton, 2017 UT 9, ¶ 58, 391 P.3d 1016 (stating that
other-acts evidence is “presumptively admissible (subject to rule
402 and 403 analysis)” if there is an “avowed purpose beyond the
propensity purpose” for admission of the evidence).

20230090-CA 11 2025 UT App 179
State v. Mendoza

¶28 But when a defendant is accused of child molestation,
“prosecutors need not go through the exercise of articulating a
non-propensity purpose for evidence ‘that the defendant
committed any other acts of child molestation.’” State v. Fredrick,
2019 UT App 152, ¶ 42, 450 P.3d 1154 (quoting Utah R. Evid.
404(c)(1)). “[A]s a policy matter, . . . propensity evidence in child
molestation cases can come in on its own terms, as propensity
evidence, even if there is no other plausible or avowed purpose
for such evidence.” Id. Indeed, our rules provide that when “a
defendant is accused of child molestation, the court may admit
evidence that the defendant committed any other acts of child
molestation to prove a propensity to commit the crime charged.”
Utah R. Evid. 404(c)(1).

¶29 Mendoza acknowledges all of this, and he does not contest
the trial court’s admission of evidence regarding various
uncharged acts of molestation that Vanessa said occurred in Las
Vegas. He acknowledges that evidence of these uncharged acts
was admissible under rule 404(c) to prove propensity, and that the
State was permitted to argue, from evidence that Mendoza
committed the Las Vegas acts, that Mendoza had a propensity to
commit both charged crimes. But he asserts that the State should
not have been able to argue, from evidence that Mendoza
committed the acts charged in Count 2, that Mendoza had a
propensity to commit the acts charged in Count 1. And he
supports this assertion by pointing out, correctly, that a factfinder
must consider each offense separately and that there is a
difference in the burden of proof when it comes to establishing
the existence of an uncharged prior act versus a charged crime.
From these premises, he argues that allowing the State to make
the argument it made in this case had the effect of combining the
two charges and lowering the State’s burden of proof.

¶30 We agree with Mendoza’s premises: separate charges must
be considered separately, and there is a difference in the burden
of proof between charged offenses and prior-bad-acts evidence.
With regard to the first point, the trial court correctly instructed
the jury that it must consider the charges separately. Indeed, it

20230090-CA 12 2025 UT App 179
State v. Mendoza

explained that Mendoza had been charged with multiple counts,
that the jury had a “duty to consider each charge separately,” and
that the jury’s “verdict on one charge does not determine [its]
verdict on any other charge.”

¶31 And with regard to the second point, the existence of an
uncharged prior bad act—whether admitted pursuant to rule
404(b) or rule 404(c)—need only be established by a
preponderance of the evidence. See State v. Lucero, 2014 UT 15,
¶ 19, 328 P.3d 841 (“In the context of rule 404(b), similar act
evidence is relevant only if the jury can reasonably conclude by a
preponderance of the evidence that [1] the act occurred and that
[2] the defendant was the actor.” (cleaned up)), abrogated on other
grounds by Thornton, 2017 UT 9; State v. Estes, 2025 UT App 10,
¶ 23, 564 P.3d 239 (stating that, “to admit evidence under rule
404(c), that evidence must support only a finding that a fact exists;
in other words, that fact must be supported by a preponderance
of the evidence”), cert. denied, 568 P.3d 261 (Utah 2025); see also
Utah R. Evid. 104(b) (“When the relevance of evidence depends
on whether a fact exists, proof must be introduced sufficient to
support a finding that the fact does exist.”). But the existence of
an act that forms the basis for a charged crime must be proved
beyond a reasonable doubt. See, e.g., Estes, 2025 UT App 10, ¶ 23
(“To convict a defendant of a crime, every element of the offense
must be proved beyond a reasonable doubt.”).

¶32 If one charged count could be used as propensity evidence
for another charged count, then the State would only need to
prove the existence of the propensity count by a preponderance of
the evidence—even though its existence may not be proved beyond
a reasonable doubt—in order to invite the jury to use it as
evidence that could contribute to a finding of guilt on the other
count beyond a reasonable doubt. And this might result in different
charges effectively being considered together, rather than
separately. Like Mendoza, we wonder whether this sort of
maneuver is permissible, at least in most cases. And neither side
points us to any Utah caselaw discussing this precise issue. At
some point, we may need to decide the question definitively.

20230090-CA 13 2025 UT App 179
State v. Mendoza

¶33 But we need not decide that question on its merits here in
order to comfortably conclude that, in this case, Counsel did not
perform deficiently by opting not to object to the State’s
argument. Here, there was no confusion about the separateness of
the counts or about the burden of proof with regard to Count 2
because, even before the jury began its deliberation on that count,
it had heard Mendoza admit the facts underlying that count and
it had heard Counsel, during his closing argument, say that the
defense had been “picking [its] spots” and that Mendoza “should
be found guilty” on Count 2. On these unique facts, given the
defense’s acknowledgment of Mendoza’s guilt on Count 2, a
reasonable attorney could have believed that Count 2 had already
separately been proved beyond a reasonable doubt and that any
separateness or burden-of-proof problem had been eliminated.

¶34 Under these circumstances, then, Mendoza has failed to
demonstrate that Counsel performed deficiently by opting not to
object to the State’s opening statement and closing argument
about using Count 2 as propensity evidence for Count 1. On this
basis, we reject Mendoza’s first ineffective assistance claim.

II. Brother’s CJC Interview

¶35 Next, Mendoza asserts that Counsel rendered ineffective
assistance by not objecting, during closing argument, to what
Mendoza describes as the prosecutor’s incorrect characterization
of Brother’s CJC interview. Mendoza argues that Counsel’s failure
to object to this “prosecutorial misconduct” was not objectively
reasonable. We find Mendoza’s argument unpersuasive here,
however, because an objection would have yielded, at best, yet
another instruction telling the jury that it could consider only
Brother’s actual observations, something the jury had already
been told. In this situation, Counsel did not perform deficiently
by opting not to lodge an objection during closing argument.

¶36 At trial, Brother’s CJC interview was played for the jury
and admitted into evidence. During that interview, Brother
explained that he “saw” the abuse that occurred in Las Vegas only

20230090-CA 14 2025 UT App 179
State v. Mendoza

once and that he “didn’t see it very well.” He described Mendoza
“leaning down” over Vanessa on a couch and said that as soon as
Mendoza saw him, Mendoza told him “to go back to [his] room.”
The interviewer also asked Brother to describe anything Vanessa
had told him about the incident. Brother then described what
Vanessa had relayed to him. But after that, the interviewer again
asked Brother to describe what he “saw in the living room.”
(Emphasis added.) During this back and forth, Brother’s accounts
of what he personally observed and what Vanessa told him
became somewhat muddled. And Brother could not provide
additional clarity during his trial testimony, because he became
very emotional and was not able to continue.

¶37 Then, during closing argument, the prosecutor discussed
Brother’s CJC interview and, as described above, he centered that
discussion around his own “notes” that he had apparently taken
as the recording of Brother’s interview was played for the jury. He
reminded the jury of the court’s instruction that the jury was
“only to consider what [Brother] saw and heard himself” and not
things Vanessa told him. After that, the prosecutor described the
contents of his notes to the jury, including assertions that Brother
“[s]aw [Mendoza] laying down and [Vanessa] on couch,” that
Mendoza “had no pants on,” and that Vanessa “was touching his
parts.” Mendoza argues that the prosecutor’s description of
Brother’s interview further muddled the question of what Brother
had seen with what Brother had been told, and Mendoza asserts
that, to the extent the prosecutor was arguing that Brother saw
some of those things, that characterization was inaccurate.

¶38 But the jury was already fully aware of the confusing
nature of Brother’s CJC interview statements. As noted already,
the court instructed the jury—during the playing of the video
recording of Brother’s interview—that it should “consider only
what [Brother] said that he saw, himself” and that it must
“disregard anything that he says that any other person told him.”
And during the court’s final set of instructions, it told jurors “to
rely on [their own] memory of the evidence” if something a
lawyer said conflicted with their recollection. And finally, we note

20230090-CA 15 2025 UT App 179
State v. Mendoza

again that the prosecutor also reminded the jury that it was “only
to consider what [Brother] saw and heard himself” and that, to the
extent jurors’ own notes were “different” from the prosecutor’s
notes, the jurors were to “go with what [they] remember[ed].”

¶39 Once the prosecutor had made his argument about
Brother’s testimony, Counsel had few options. He could have
done nothing (which is what he chose). Or he could have objected
to the prosecutor’s argument, 3 in which case he might have
succeeded in persuading the trial court that the prosecutor had
mischaracterized the evidence. But even in that event, the remedy
would have been yet another instruction from the court
reminding the jury to consider only Brother’s firsthand
observations. A reasonable attorney could have decided to forgo
asking for yet another instruction along these lines. See State v.
Houston, 2015 UT 40, ¶ 76, 353 P.3d 55 (“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.” (cleaned up)). Indeed, the presumption is that
jurors follow the court’s instructions. See State v. Suhail, 2023 UT
App 15, ¶ 142, 525 P.3d 550.

¶40 Moreover, an objection might have served to emphasize
certain aspects of the State’s case that Counsel did not wish to
emphasize. See State v. Popp, 2019 UT App 173, ¶ 50, 453 P.3d 657
(noting that asking for an objection and a curative instruction
“may actually serve to draw the jury’s attention toward the
subject matter of the instruction and further emphasize the issue
the instruction is attempting to cure”). We are reluctant to second-
guess an attorney’s choice in these circumstances. See State v. King,

3. Mendoza does not suggest that Counsel had options other than
these. In particular, he does not argue that Counsel performed
deficiently by opting not to move for a mistrial. Nor does he argue
that Counsel should have lodged an objection to the language of
any of the trial court’s instructions to the jury.

20230090-CA 16 2025 UT App 179
State v. Mendoza

2024 UT App 151, ¶ 33, 559 P.3d 96 (stating that “decisions
regarding whether to move to strike and seek a curative
instruction are highly strategic ones that courts are loath[] to
second-guess”).

¶41 Ultimately, Counsel did not perform deficiently by opting
not to object to the prosecutor’s argument regarding Brother’s CJC
interview. On this basis, we reject Mendoza’s second ineffective
assistance claim.

III. Opening Statement

¶42 Finally, Mendoza takes issue with Counsel’s choice to
forgo an opening statement. But on the record before us, there
were strategic reasons why Counsel may have opted not to offer
an opening statement. Therefore, we cannot conclude that
Counsel’s performance was deficient.

¶43 “The purpose of an opening statement is to apprise the jury
of what counsel intends to prove in his own case in chief by way
of providing the jury an overview of, and general familiarity with,
the facts the party intends to prove.” State v. Williams, 656 P.2d
450, 452 (Utah 1982). In most cases, attorneys reasonably choose
to offer an opening statement. See ABA Criminal Justice Standards
for the Defense Function, Standard 4-7.5(a) (4th ed. 2017),
https://www.americanbar.org/groups/criminal_justice/resources/
standards/defense-function/ [https://perma.cc/DLR3-V9PS]
(“Defense counsel should be aware of the importance of an
opening statement and, except in unusual cases, give an opening
statement immediately after the prosecution’s, before the
presentation of evidence begins.”). But in some cases, attorneys
might have reason to choose not to do so, and that choice is a
strategic one that is second-guessed only when it is unreasonable.
See, e.g., State v. Dew, 2025 UT App 22, ¶ 64, 566 P.3d 53 (“In
evaluating whether counsel was deficient, we will not second-
guess trial counsel’s legitimate strategic choices.” (cleaned up)),
cert. denied, 568 P.3d 264 (Utah 2025); State v. Harry, 873 P.2d 1149,
1154 (Utah Ct. App. 1994) (discussing the choice not to offer an

20230090-CA 17 2025 UT App 179
State v. Mendoza

opening statement, noting that this choice could be strategic, and
stating that such a choice, if “legitimate,” will not be second-
guessed, “however flawed” that choice “might appear in
retrospect” (cleaned up)). Indeed, we have specifically held that
“[t]here are several circumstances where it may be advantageous
for counsel to” forgo offering an opening statement. Harry, 873
P.2d at 1154. In Harry, we observed that an attorney who “felt the
jury had a good understanding of the defendant’s case due to [the
attorney’s] cross-examination of the State’s witnesses” and who
“felt that he may have been losing the jury’s attention and felt that
the jury would have appreciated the case moving along” had a
“strategic” reason to opt out of offering an opening statement at
the beginning of the defense’s case-in-chief, after deferring such
statement at the beginning of the case. Id.

¶44 Here, Counsel had arguably more justifiable grounds to
opt not to offer an opening statement. As in Harry, at the
beginning of the case Counsel here opted to “defer” an opening
statement “until after the State’s case-in-chief.” And as in Harry,
Counsel opted not to offer any such statement at the conclusion
of the State’s case-in-chief. Instead, Counsel decided to just move
“right into calling [Mendoza] as [the defense’s] only witness.”
And in this case, Counsel had an apparent reason for doing so: he
knew that he was going to have to concede guilt on Count 2 (as
he eventually did in his closing argument). In this unique
situation, delaying that concession until closing argument—after
Mendoza had had a chance to testify—was perhaps a bold but not
an unreasonable choice; Counsel could reasonably have wanted
to try to avoid souring the jury’s perception of Mendoza before he
testified. In our view, and under the circumstances, Counsel’s
conduct did not fall “below an objective standard of
reasonableness under prevailing professional norms.” State v.
Samora, 2023 UT 5, ¶ 20, 529 P.3d 330 (cleaned up).

¶45 Thus, Mendoza has not demonstrated that Counsel
performed deficiently by opting not to offer an opening
statement. And on this basis, we reject his third ineffective
assistance claim.

20230090-CA 18 2025 UT App 179
State v. Mendoza

CONCLUSION

¶46 Mendoza has not shown that Counsel rendered ineffective
assistance in any of the ways he asserts. We therefore reject his
arguments and affirm the trial court’s judgment.

20230090-CA 19 2025 UT App 179