State v. Whitefeather

2026 UT App 81

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JUSTIN TIMOTHY WHITEFEATHER,
Appellant.

Opinion
No. 20240247-CA
Filed May 21, 2026

First District Court, Brigham City Department
The Honorable Brandon J. Maynard
No. 221100024

Ramon Ortiz, Debra M. Nelson, Benjamin Miller, and
Wendy M. Brown, Attorneys 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 AMY J. OLIVER
concurred.

HARRIS, Judge:

¶1 A jury convicted Justin Timothy Whitefeather of forcible
sexual abuse, a second-degree felony. Whitefeather now appeals
his conviction, arguing that the trial court erred in several
respects, including by allowing the State to amend the
information during trial, refusing to strike a juror for cause, and
overruling his objection to certain testimony. Whitefeather also
asserts that his trial attorneys (Counsel) rendered ineffective
assistance by not objecting to several other parts of various
witnesses’ testimony. For the reasons that follow, we reject
Whitefeather’s appellate arguments and affirm his conviction.
State v. Whitefeather

BACKGROUND 1

The Incident

¶2 Whitefeather had recently reconnected with an old friend.
This friend introduced Whitefeather to his girlfriend, Sydney.2
Later, Sydney and the friend (Boyfriend) invited Whitefeather to
go out “for his birthday” and to stay over at their house that night.
Whitefeather accepted.

¶3 On the appointed day, Whitefeather arrived at the house,
where Sydney and Boyfriend gave him a “house tour.” The couple
showed him the bedroom in which he would be staying, which
was down the hall from their own bedroom. That evening, they
met up with “quite a few people” at a local bar, where they drank,
played pool, sang karaoke, and had “a good time.” Throughout
the night, Whitefeather “kept making jokes about being a trained
killer,” and he mentioned “how he had been shot before.” By
Sydney’s own account, she had “more than five” but “[l]ess than
20” drinks, and she “left the bar before anyone else” because she
“had to work the next morning.” She “got a ride home,” “went
upstairs to [her] room and went straight to bed,” wearing her
“normal[]” “shirt and underwear.”

¶4 Later that night, Sydney “woke up to . . . someone rubbing
[her] vagina” “over [her] underwear.” She did not feel
“intoxicated at that time.” The “only person” she thought it could

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.

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State v. Whitefeather

be was Boyfriend, but when she opened her eyes, she saw that it
was Whitefeather. She “closed [her] eyes” and “kicked [her] legs,
hoping he’d leave.” Whitefeather left, but he came back soon after.
Sydney “opened [her] eyes” to see Whitefeather come “into [her]
room again,” but she “closed them again,” pretending to be asleep
and “hoping that he would just leave.” This time, Whitefeather
“tried to talk to [her] to see if [she] was awake.” And “when [she]
didn’t respond, he said, ‘Fuck it. She’s out,’” and then he left. After
Whitefeather left the second time, Sydney called a friend (Friend)
who she knew was also at the house at that time, and he came and
sat by the “side of [her] bed.” Sydney told Friend that she had
been “touched inappropriate[ly]” and “that [she] needed to
leave,” but when she heard “someone coming up the stairs,” she
told Friend “not to say anything” and she again pretended to be
asleep. Whitefeather “opened the door for the third time,” and
Friend said to Whitefeather, “Shh. She’s sleeping.” Whitefeather
called Friend a “creep” for “just sitting there watching her sleep”
and then left the room. After that, Friend helped Sydney “pack a
bag,” and they left the house.

¶5 Friend called a coworker and mutual friend (Coworker),
who said Sydney could come stay with her in her apartment. On
the way there, Sydney began to “fog out” due to the traumatic
experience, meaning she was unable to remember specific
“conversations and details” about what happened after she left
the house. She remembers “being hysterical, and not knowing
what to do, because [she] didn’t want to tell everyone” and
because she “didn’t know what would happen to [her] or to
[Boyfriend] or [her] friends if [she] told them what [Whitefeather]
did to [her].” According to Friend, when they got to Coworker’s
apartment, Sydney seemed “[s]cared [and] shocked,” so he tried
to hug Sydney “to comfort her,” but “she wouldn’t let [him] get
near her,” which was not “typical for her” because “[s]he was
usually a pretty huggy person.” According to Coworker, when
Sydney got there, she “seemed very frantic, and she was almost

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hysterical. She would sit down for a minute, and then she would
get back up and walk around.” She also “couldn’t form sentences”
and “didn’t really want to talk about anything.” Coworker
testified that she had seen Sydney intoxicated before and that this
was not how Sydney acted after she had been drinking. Friend left
Sydney with Coworker at Coworker’s apartment, where Sydney
spent the rest of the night.

¶6 Sydney later told Boyfriend about the incident, and they
“got into an argument” about when or if they should report it to
the police due to fear of retaliation from Whitefeather. Sydney
eventually reported the incident to the police four days after it
occurred, and an officer (Officer) interviewed her.

The Charging Document

¶7 Later, the State charged Whitefeather with forcible sexual
abuse, a second-degree felony, in violation of Utah Code section
76-5-404. 3 In the information, the State described the crime as
having occurred when Whitefeather touched “any part of the
genitals of an individual 14 years of age or older with intent to
cause substantial emotional or bodily pain to any person,
regardless of the sex of any participant.” In the probable cause
statement contained in the information, the State alleged that
Whitefeather, “while visiting as a guest at [Sydney’s] residence,
entered [Sydney’s] bedroom while she was sleeping and touched
her genitals over her clothing.”

3. The State initially charged Whitefeather with sexual battery, a
class A misdemeanor, but amended the charge to forcible sexual
abuse well before trial. Whitefeather does not challenge the
propriety of this pretrial amendment to the charging document.

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State v. Whitefeather

Pre-Trial Procedure

¶8 Whitefeather waived his right to a preliminary hearing,
and the case proceeded toward trial. Some ten months in advance
of the eventual trial date, both sides submitted proposed jury
instructions. Notably, both the State’s and Whitefeather’s
proposed instructions included two different pathways by which
the State could prove the intent element of forcible sexual abuse.
Specifically, the instructions indicated that the State could meet
the intent requirement by showing that Whitefeather intended to
either (a) cause Sydney “substantial emotional or bodily pain”
(the method specified in the information) or (b) “arouse or gratify
the sexual desire of any person.” A few days before trial, the court
asked if there were “any objections to the [jury] instructions,” and
both parties responded in the negative.

¶9 During the jury selection process, the trial court permitted
both sides to ask jurors certain questions about themselves as well
as questions about responses the jurors had given on a
questionnaire. The court also gave both sides five total
peremptory challenges, in addition to challenges for cause. In
response to questions, Juror 16 disclosed that she “had a cousin
that [had] worked with [the] County Sheriff, but she recently
changed” jobs, and that she had another “cousin that works at the
courthouse.” When asked about how often she visited with those
cousins, Juror 16 responded, “[N]ot so much because they
moved.” The court then asked Juror 16 if “[a]nything in those
relationships . . . would cause [her] to favor or disfavor one side
over the other side,” and she responded in the negative. Neither
the prosecutor nor Counsel asked Juror 16 any follow-up
questions about these relationships, and neither attorney sought
to remove Juror 16 for cause or by peremptory challenge. Juror 16
served on the jury.

¶10 Juror 23 disclosed that his two daughters had been
“molested by their uncle.” The court asked if “that experience

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would cause [him] to favor or disfavor one side over the other,”
and Juror 23 responded in the negative. The court also asked Juror
23 if he “would be able to put that aside and make a fair and
impartial decision based on what [he] hear[d] on this case and
these facts,” and Juror 23 responded in the affirmative. Juror 23
also stated that he could apply the law as instructed, that he could
apply the presumption of innocence, and that past experiences
with law enforcement would not influence him. At the conclusion
of this colloquy, Counsel asked the court to strike Juror 23 for
cause. The court denied the request because it “believe[d] that
[Juror 23 was] able to indicate . . . fairly well that [his situation]
would not impact” his ability “to be able to make a fair, impartial
decision.” Counsel used one of Whitefeather’s peremptory
challenges to strike Juror 23. Counsel did not seek the dismissal
for cause of any other juror; thus, no juror who was challenged for
cause ended up sitting on the jury.

The Trial

¶11 At trial, the State presented evidence from Sydney,
Boyfriend, Friend, Coworker, and Officer, all of whom testified
consistently with the events recounted above.

¶12 Sydney testified first, and when the State asked why she
didn’t report the incident with Whitefeather right away, she
responded that she remembered Whitefeather calling himself a
“trained killer” and that, consequently, she was afraid of “some
sort of retaliation.” On cross-examination, Counsel questioned
Sydney about a discrepancy between her trial testimony and a
statement she had earlier made to police. Sydney replied, “The
first event, when I gave that statement, was recently after. I’ve
been trying to cope and work through what has happened to me.
And so it’s very normal for my brain to block out—anyone’s brain
to block out traumatic things that have happened to you, and not
remember everything.” Counsel did not object to or probe into

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this statement further. Following Sydney’s testimony, the court
excused the jury for the day.

¶13 The court then brought up, on its own, the discrepancy
between the information—which mentioned only one intent
pathway (an intent to cause substantial emotional or bodily
pain)—and the jury instructions—which mentioned two intent
pathways (adding an intent to arouse or gratify sexual desire). At
that point, Counsel lodged an objection to the proposed jury
instruction, describing the earlier submission of and agreement to
it as an “oversight” and asking that the instruction be changed to
“comport with” what was stated in the information. In response,
the State asked the court to “stick with the instruction that both
parties agreed to,” and it further posited that it was “happy to file
an amended information to make sure . . . the [i]nformation
comports with what the instruction is.”

¶14 Counsel objected to the State’s proposal to amend the
information, asserting that changing the information at that point
“would be a due process violation.” The State then acknowledged
that there were “errors” in the information, but it pointed out that
Utah’s rules of criminal procedure allow a court to “permit an
[i]nformation [to] be amended after the trial has commenced, but
before verdict,” so long as “no additional or different offense is
charged and the substantial rights of the defendant are not
prejudiced.” See Utah R. Crim. P. 4(d). The State argued that,
given that both sides, long before trial, had submitted a proposed
instruction containing both intent pathways, Counsel had
“prepared for this trial in anticipation of the charge being due to
the touching of [Sydney’s] vagina for sexual gratification.” The
court eventually permitted the State to amend the information to
add the sexual gratification intent pathway, because it found that
doing so did not result in an “additional charge or offense being
charged,” and because it found that Whitefeather’s “substantial
rights [would not be] prejudiced by allowing the State to make
that amendment.”

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State v. Whitefeather

¶15 The State then filed an amended information, charging
Whitefeather with the same crime—forcible sexual abuse, a
second-degree felony, in violation of Utah Code section 76-5-
404—but now asserting that Whitefeather had acted “with the
intent to arouse or gratify the sexual desires of any person.” The
probable cause allegation remained the same as in the previous
information, accusing Whitefeather of “enter[ing] [Sydney’s]
bedroom while she was sleeping and touch[ing] her genitals over
her clothing.”

¶16 The next day, Boyfriend testified that, while they were
on their way home from the bar, Whitefeather had “mention[ed]
that . . . he was a trained killer.” Counsel did not object. During
cross-examination, Counsel followed up on the “trained killer”
comment, asking Boyfriend if “it [was] possible that the
trained killer comment might have been phrased another way,”
and Boyfriend acknowledged that as “a possibility.” Boyfriend
also admitted that Whitefeather had not made that comment
to scare him; indeed, Boyfriend offered his view that
Whitefeather “wasn’t trying to intimidate” anyone by making
that comment.

¶17 Officer testified next. On cross-examination, Counsel asked
if, when Officer was interviewing Sydney, he was looking “for
any verification details . . . to determine whether or not a
particular story or version of events was true.” Officer explained
that intoxication “is taken into account” but that “it didn’t appear
that intoxication was a clear factor in [Sydney’s] account.” On
redirect, the State asked Officer if Sydney told him “how much
she had had to drink that night.” Officer responded that Sydney
had told him “she had five or six drinks” and that she had been
“very specific” in indicating that she had consumed “10 ounces
total.” Counsel did not object to this part of Officer’s testimony.

¶18 Finally, the State called Friend to testify. During direct
examination, the State asked Friend to recount what Sydney had

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told him happened to her on the night of the incident. Counsel
objected on hearsay grounds, which objection the court initially
sustained. At that point, a sidebar discussion was held, and the
State argued that Sydney’s statement was not hearsay because it
wasn’t being admitted for its truth but, instead, “to show why
[Sydney] was so frantic to get out of the house, and why [Friend]
understood the need to get her out of the house that night.” The
State further argued that even if the statement could be
considered hearsay, it qualified for admission under one or more
exceptions to the hearsay rule, such as the exceptions for excited
utterances or present sense impressions. After the sidebar
discussion, the court changed its mind and overruled the
objection. Friend then responded to the question, testifying that
Sydney told him that she had been “touched inappropriate[ly].”

¶19 In closing argument, the State heavily relied on Sydney’s
testimony. The prosecutor argued that Sydney was credible
because she had a clear perception of what happened and had no
reason to lie. During the defense closing, Counsel argued that
Sydney’s testimony was not credible because of her alcohol
consumption and related mental state at the time of the incident
and the lack of corroborating physical evidence. After
deliberation, the jury convicted Whitefeather as charged.

ISSUES AND STANDARDS OF REVIEW

¶20 Whitefeather now appeals his conviction, and he asks us to
consider three issues. First, he contends that the trial court erred
by improperly allowing the State to amend the information
during trial. As a general matter, we review for abuse of discretion
a court’s decision to permit amendment of an information during
a trial. State v. Williams, 2025 UT App 118, ¶ 25, 576 P.3d 1142, cert.
denied, 581 P.3d 554 (Utah 2025). But we review for correctness a
court’s interpretation of a procedural rule. Drew v. Lee, 2011 UT
15, ¶ 7, 250 P.3d 48.

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State v. Whitefeather

¶21 Second, Whitefeather challenges the court’s decision to
deny his request to strike Juror 23 for cause. We will not reverse a
trial court’s decision not to excuse a prospective juror “absent an
abuse of discretion.” State v. Taylor, 2025 UT App 14, ¶ 15, 564 P.3d
962 (cleaned up). However, in this context, we “view the trial
court’s exercise of discretion in light of the fact that it is a simple
matter to obviate any problem of bias simply by excusing the
prospective juror and selecting another.” Id. (cleaned up).

¶22 Third, Whitefeather complains that some of the State’s
evidence was inadmissible. This issue has two components. First,
he challenges the court’s evidentiary ruling regarding Friend’s
testimonial recitation of what Sydney told him. “We review a trial
court’s evidentiary rulings for an abuse of discretion, and we will
not reverse the trial court’s ruling on evidentiary issues unless it
is manifest that the trial court so abused its discretion that there is
a likelihood that injustice resulted.” State v. Gollaher, 2020 UT App
131, ¶ 21, 474 P.3d 1018 (cleaned up). Second, he asserts that
Counsel rendered ineffective assistance by not objecting to three
other instances of testimony. “A claim of ineffective assistance of
counsel raised for the first time on appeal presents a question of
law, which we consider de novo.” State v. King, 2018 UT App 190,
¶ 11, 437 P.3d 425 (cleaned up).

ANALYSIS

I. Midtrial Amendment of the Information

¶23 First, Whitefeather challenges the trial court’s decision to
allow the State to amend the information, during trial, to add the
second (sexual gratification) intent pathway. 4 Both parties agree

4. In addition to contesting Whitefeather’s argument on its merits,
the State also asserts that, because Whitefeather did not request a
(continued…)

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State v. Whitefeather

that this question is controlled by rule 4(d) of the Utah Rules of
Criminal Procedure. That rule allows a court to “permit an
information to be amended after the trial has commenced but
before verdict if no additional or different offense is charged and
the substantial rights of the defendant are not prejudiced.” Utah
R. Crim. P. 4(d). Whitefeather focuses his argument on the second
part of this test, 5 asserting that the amendment adversely affected
his substantial rights. We find this argument unpersuasive.

continuance, his challenge to the State’s request to amend the
information was not properly preserved for our review. But
because we can resolve this issue on the merits in the State’s favor,
we opt to take that route here. See State v. Kitches, 2021 UT App 24,
¶ 28, 484 P.3d 415 (“[I]f the merits of a claim can easily be resolved
in favor of the party asserting that the claim was not preserved, we
readily may opt to do so without addressing preservation.”).

5. In his opening brief, Whitefeather also argued that the first part
of the rule 4(d) test—that the amendment must allege “no
additional or different offense”—was not met. Utah R. Crim. P.
4(d). Specifically, citing language from Tillman v. Cook, 855 P.2d
211 (Utah 1993), he argued that the “different offense” question
“turns on whether different elements are required to prove the
offense charged in the amended information.” Id. at 215. He then
asserted that, because the amended information used a different
intent pathway, it required different elements to be proven. In
response, the State argued that Tillman’s statements on this point
were merely dicta, and it asserted that the point was instead
controlled by the court’s holding in State v. Peterson, 681 P.2d 1210
(Utah 1984). In that case, our supreme court held that, as long as
the same criminal statute was invoked and the same crime
charged, a midtrial amendment did not allege an additional or
different offense even where it invoked a different subsection of
(continued…)

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State v. Whitefeather

¶24 The second part of rule 4(d)’s test asks whether “the
substantial rights of the defendant” would be “prejudiced” by the
amendment in question. See id. In this vein, we have stated that
“even if an amended information does create a new and
additional offense, reversal is only appropriate if the defendant
can demonstrate that his or her substantial rights are prejudiced
as a result of the amendment.” State v. Hattrich, 2013 UT App 177,
¶ 39, 317 P.3d 433.

¶25 Here, Whitefeather asserts that the amendment prejudiced
him, and he claims that his defense “was based entirely on the
information that existed at the start of trial.” The State disagrees,
arguing that the facts of the case “obviously suggested an intent
for sexual gratification,” and pointing out that Whitefeather—
based on the jury instructions he himself submitted prior to trial—
was on notice that the State intended to argue that Whitefeather
had acted with an intent to arouse or gratify sexual desire. The
trial court ruled that the amendment would not impair
Whitefeather’s substantial rights, and we discern no abuse of
discretion in that conclusion.

¶26 For starters, we agree with the State that the facts of the
case point strongly toward sexual gratification being the alleged
motive. Whitefeather was accused, in the previous information’s
probable cause statement, of “enter[ing] [Sydney’s] bedroom
while she was sleeping and touch[ing] her genitals.” This
accusation implies that Whitefeather did so for purposes of sexual
gratification. And Whitefeather clearly understood this, as

that same statute. See id. at 1220–21 (noting that the amendment
“did not change the basic charge” and used the same statutory
“Title and Section” as the original information). By way of reply
to the State’s argument, Whitefeather conceded the point,
acknowledging that “the same offense was alleged in both
informations.” In light of Whitefeather’s concession, we need not
further discuss the first element of the rule 4(d) test.

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State v. Whitefeather

evidenced by the fact that, some ten months in advance of the
eventual trial date, he and the State both submitted proposed jury
instructions that included the sexual-gratification intent pathway.
While Counsel later argued that Whitefeather’s submission of and
stipulation to such instructions had been a mistake, it is
incontrovertible that Whitefeather was on notice of the sexual
gratification intent pathway and had every opportunity to
prepare to defend against that accusation at trial.

¶27 In addition, it is worth noting that Counsel’s primary
defense was available under either intent pathway. See State v.
Holt, 2004 UT App 213U, para. 9 (concluding that the defendant
had not “suffer[ed] any harm or prejudice as a result” of an
amendment to the information, because “[t]he defense that he
raised was available regardless of whether he was charged with
aggravated sexual abuse of a child or forcible sexual abuse”).
Counsel’s primary defense—articulated in more or less the same
way during both opening statement and closing argument, that
is, both before and after the amendment to the information—was
that the alleged abuse never occurred, that Sydney’s testimony
was not credible, and that the State failed to present enough
evidence to support the charge. This defense works just as well
against a sexual-gratification intent accusation as it does against a
bodily-pain intent accusation. In this situation, it is difficult to see
how Whitefeather’s substantial rights could have been prejudiced
by the amendment.

¶28 For these reasons, we discern no error in the trial court’s
decision to allow the State to make the requested midtrial
amendment to the information.

II. Juror 23

¶29 Second, Whitefeather challenges the trial court’s decision
to deny his request to strike Juror 23 for cause. In response, the
State argues that Whitefeather failed to preserve this claim and—

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alternatively—that even if the claim was preserved, it fails on its
merits. We agree with the State on both counts.

¶30 Under current Utah law, “parties need not use all of their
challenges on jurors who were previously challenged for cause in
order to preserve the issue of jury bias for appeal.” Turner v.
University of Utah Hosps. & Clinics, 2013 UT 52, ¶ 32, 310 P.3d 1212.
“Rather, as long as (a) all of the party’s peremptory challenges
were used and (b) a juror who was previously challenged for
cause ends up being seated on the jury, the issue of jury bias has
been preserved.” Id. 6 Here, Whitefeather meets the first part of
this test—he used all of his peremptory challenges—but he cannot
meet the second, because no juror that was challenged for cause
ended up being seated on the jury. The only juror that
Whitefeather challenged for cause was Juror 23, who did not end
up sitting on the jury because Whitefeather used a peremptory
challenge to strike him. Accordingly, under Turner, Whitefeather
has not taken the steps necessary to preserve his jury bias
challenge for appellate review.

¶31 But in any event, Whitefeather’s claim would fail on its
merits even if it were somehow preserved. Juror 23 repeatedly
affirmed that, despite his daughters’ abuse at the hands of their
uncle, he would still be able to put that aside and render a fair and
impartial decision based on the facts presented. Juror 23 also
stated that he could apply the law as instructed, that he could
apply the presumption of innocence, and that past experiences

6. Whitefeather argues that the standard set forth in Turner v.
University of Utah Hospitals & Clinics, 2013 UT 52, 310 P.3d 1212,
leads to “an illogical result,” and he contends that the Turner
“standard should be abandoned.” But we have no authority to
consider this argument; we must apply Turner as written. See
Ortega v. Ridgewood Estates LLC, 2016 UT App 131, ¶ 30, 379 P.3d
18 (“We are bound by vertical stare decisis to follow strictly the
decisions rendered by the Utah Supreme Court.” (cleaned up)).

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State v. Whitefeather

with law enforcement would not influence him. Unlike the juror
in the recent case of State v. Bunton, 2026 UT App 59, ¶ 7, who
offered an unsolicited statement that he could not be fair and
impartial, Juror 23 did not give any indication that his life
experience would prevent him from adjudging the facts fairly.
Under these circumstances, the trial court did not abuse its
discretion in denying Whitefeather’s for-cause challenge. 7

¶32 For any and all of these reasons, then, Whitefeather’s
challenge to the composition of the jury fails.

III. Evidentiary Issues

¶33 Third, Whitefeather complains that four pieces of
testimony that the State used to argue for conviction were
inadmissible. One of these challenges involves a preserved claim,

7. Moreover, Whitefeather has not demonstrated that any
prejudice resulted to him from that decision. Under Turner, to
prove prejudice on a jury bias claim, Whitefeather must show
“that (a) a juror who was previously challenged for cause sat on
the jury, and (b) that juror was, in fact, biased.” 2013 UT 52, ¶ 29.
As already noted, Whitefeather cannot meet the first element,
because no juror who was previously challenged for cause ended
up sitting on the jury. Whitefeather points to Juror 16, but he
didn’t ask for Juror 16 to be dismissed for cause. And even on
appeal, he doesn’t argue that Counsel’s decision not to lodge a
for-cause objection to Juror 16 was ineffective assistance. Such an
argument would be tough sledding: as Juror 23 did, Juror 16 told
the court that she could be fair and impartial despite the issues
being discussed. And it should go without saying that simply
having a cousin—even two cousins—in law enforcement does
not, without much more, disqualify a juror from service. And
here, Juror 16 indicated that her relationships with the cousins in
question were not particularly close ones. On this record, there is
simply insufficient indication that Juror 16 was actually biased.

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State v. Whitefeather

and the other three involve an assertion that Counsel rendered
ineffective assistance. We discuss each challenge, in turn, and
conclude that none of them have merit.

A. The Preserved Claim Regarding Friend’s Testimony

¶34 Whitefeather first contends that the trial court erred in
allowing Friend to testify that Sydney told him that she had been
“touched inappropriate[ly].” Whitefeather asserts that this
statement constituted inadmissible hearsay. In response, the State
counters that Friend’s testimony was not hearsay at all or, if it
was, it fell into an exception. We agree with the State that Friend’s
statement did not constitute hearsay.

¶35 Hearsay is defined as an out-of-court statement that “a
party offers in evidence to prove the truth of the matter asserted
in the statement,” and hearsay statements are generally not
admissible. Utah R. Evid. 801(c)(2), 802. But where “an out of
court statement is offered for some other purpose—e.g., to show
its effect on the hearer’s state of mind and not for its truth—it is
not hearsay.” Arnold v. Grigsby, 2018 UT 14, ¶ 20, 417 P.3d 606
(cleaned up); see also State v. Huey, 2022 UT App 94, ¶¶ 49–50, 516
P.3d 345 (holding that a mother’s testimony that an officer called
and told her that her daughter had been raped was not hearsay
because it was “not offered to prove the truth of the matter
asserted” but, instead, “was offered to lay the groundwork” for
the mother’s subsequent actions).

¶36 Here, the State argued that Friend’s statement about
Sydney having been “touched inappropriate[ly]” was not offered
for its truth but, instead, was offered “to show why [Sydney] was
so frantic to get out of the house, and why [Friend] understood
the need to get her out of the house that night.” After hearing this
argument, the court overruled Whitefeather’s objection, and we
discern no abuse of discretion in that decision. Friend took action
to help Sydney—he stayed with her and assisted her when

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State v. Whitefeather

Whitefeather returned to the bedroom, and later he helped her get
out of the house and relocate to Coworker’s apartment. Friend’s
brief statement that he did these things because Sydney had told
him that Whitefeather had touched her inappropriately was, in
this situation, not hearsay because it was not offered for its truth
but, instead, to explain why Friend would take such unusual
actions on Sydney’s behalf. On this basis, we reject Whitefeather’s
challenge to the trial court’s decision to allow this testimony.

B. The Ineffective Assistance of Counsel Claims

¶37 Whitefeather next argues that Counsel rendered ineffective
assistance by not objecting to certain other testimony offered by
various witnesses. A defendant seeking to show that his or her
attorney rendered ineffective assistance must make a two-part
showing: that (1) the attorney’s performance was deficient and
(2) this “deficient performance prejudiced the defense” by giving
rise to “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 687, 694
(1984). The first part of this inquiry involves an assessment of the
objective reasonableness of counsel’s actions, see State v. Scott,
2020 UT 13, ¶ 35, 462 P.3d 350, and “requires [a] showing . . . that
counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment,” Strickland, 466 U.S. at 687.
The second part requires a showing that “counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Id. In this second inquiry, the crucial question is
whether “the outcome of [the defendant’s] case would have been
different absent counsel’s error.” Scott, 2020 UT 13, ¶ 43.

¶38 Here, Whitefeather identifies three pieces of testimony that
he believes should not have been admitted and to which he
believes Counsel should have objected: (1) Officer’s testimony
about the amount of alcohol Sydney consumed on the evening in
question; (2) Sydney’s statements about the extent to which she

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State v. Whitefeather

believes trauma can affect memory; and (3) statements from both
Sydney and Boyfriend that Whitefeather had described himself as
a “trained killer” on the evening in question. We address each of
these issues in turn.

1. Officer’s Testimony Regarding Alcohol

¶39 Whitefeather first contends that Counsel rendered
ineffective assistance by not objecting to Officer’s testimony that
Sydney told him “she had five or six drinks” and that she had
been “very specific” in indicating that she had consumed “10
ounces total.” Whitefeather argues that this testimony constituted
inadmissible hearsay and that Counsel should have objected to it.

¶40 “In deciding whether to lodge objections, attorneys are
entitled to pick their battles, and do not have a Sixth Amendment
obligation to object to everything.” State v. Samora, 2021 UT App
29, ¶ 44, 484 P.3d 1206 (cleaned up); see also State v. Hart, 2020 UT
App 25, ¶ 29, 460 P.3d 604 (“[J]ust because counsel can make an
objection does not mean counsel must make an objection to avoid
rendering ineffective assistance. Legal objections are an
inherently strategic business.”). “We must view a decision to not
object in context and determine whether failure to do so was
objectively unreasonable—i.e., a battle that competent counsel
would have fought.” Samora, 2021 UT App 29, ¶ 44 (cleaned up).

¶41 Even assuming, for purposes of the discussion only, that
Officer’s testimony on this topic was inadmissible hearsay, a
competent attorney could have reasonably opted not to object to
it. To be sure, Officer’s testimony placed Sydney’s alcohol
consumption on the lower end of Sydney’s own admitted range;
during her trial testimony, she acknowledged that she had
enjoyed “more than five” but “[l]ess than 20” drinks on the
evening in question. But even so, Officer’s testimony corroborated
the fact that Sydney had consumed quite a bit of alcohol (ten
ounces), and Counsel could have reasonably believed that

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State v. Whitefeather

allowing Officer to offer this testimony supported Whitefeather’s
defense that Sydney was not in the right mental state to be able to
accurately identify Whitefeather at the scene. In this situation, a
decision not to object to Officer’s testimony would not be
unreasonable, and on that basis—lack of deficient performance—
we reject Whitefeather’s first claim of ineffective assistance.

2. Sydney’s Testimony Regarding Trauma

¶42 Next, Whitefeather argues that Counsel should have
objected to Sydney’s testimony about trauma and memory. At
trial, Sydney testified that, in her view, it was “very normal” for
the human “brain to block out traumatic things” that had
happened and that this causes people who have experienced
trauma to “not remember everything.” Whitefeather contends
that this constituted impermissible expert testimony because the
topics of “memory formation” and “trauma responses” are not
within the common knowledge of most laypersons.

¶43 But again, even if we assume—for purposes of the
discussion—that this testimony was inadmissible, a competent
attorney could have opted not to object to it. Any reasonable juror
could have discerned that Sydney was not an expert in this field,
so Counsel could have reasonably believed that Sydney offering
testimony like this could have damaged her credibility, thus
working in Whitefeather’s favor rather than to his detriment. See
State v. Repsher, 2025 UT App 50, ¶ 48, 568 P.3d 1095 (rejecting an
ineffective assistance claim in a similar context and concluding
that “a reasonable attorney might have thought the jury would
find [the complaining witness’s] armchair medical testimony”
about the effects of trauma on memory to be “off-putting or
unconvincing, thus rendering her other testimony less credible”).
Additionally, “a reasonable attorney might have believed that it
was to his [or her] client’s benefit to allow the State’s main witness
to discuss the reasons why her memory appeared to be faulty,
because such discussion draws additional attention to the fact that

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State v. Whitefeather

the witness’s memory is in fact faulty.” Id. Thus, “there were
strategic reasons why Counsel may have chosen to forgo an
objection” to Sydney’s “trauma testimony.” Id.

¶44 Moreover, even if an objection had been lodged, Counsel
could only have moved to strike the testimony and obtained a
curative instruction. That is because Sydney’s statement about
trauma and memory was largely unresponsive to the questions
put to her, providing Counsel no opportunity to object before the
testimony was heard by the jury. The exchange occurred during
Counsel’s own cross-examination of Sydney, and Counsel was
asking her about a discrepancy between her trial testimony and a
statement she had earlier made to police. Without prompting,
Sydney offered her thoughts about how she believed her
traumatic experiences had affected her memory. Thus, the only
remedy Counsel could have sought—even if Counsel believed
that Sydney’s trauma-related testimony was unhelpful—was to
have the testimony stricken from the record and a curative
instruction provided to the jury.

¶45 “[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. King, 2024 UT
App 151, ¶ 33, 559 P.3d 96; see also State v. Popp, 2019 UT App 173,
¶ 50, 453 P.3d 657 (“[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.”). In this case, a reasonable attorney could
have strategically decided not to reemphasize the testimony
relating to Sydney’s purported trauma with a curative instruction.
See State v. Garrido, 2013 UT App 245, ¶ 26, 314 P.3d 1014
(“Choosing to forgo a limiting instruction can be a reasonable
decision to avoid drawing attention to unfavorable testimony.”).

¶46 Accordingly, Whitefeather has not demonstrated that
Counsel performed deficiently in reacting to Sydney’s trauma-

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State v. Whitefeather

related testimony, and on that basis we reject Whitefeather’s
second claim of ineffective assistance.

3. Testimony About Whitefeather Being a “Trained Killer”

¶47 Finally, Whitefeather argues that Counsel should have
objected to Sydney and Boyfriend testifying that Whitefeather
had described himself as a “trained killer.” He argues that this
testimony was “unsubstantiated” and “highly inflammatory
character evidence,” and he asserts that it was inadmissible under
rule 403 of the Utah Rules of Evidence. The State argues that
Counsel did not perform deficiently by not objecting to this
testimony, because any such objection would have been unlikely
to succeed. We agree with the State.

¶48 Rule 403 allows a court to “exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . .
unfair prejudice.” The “probative value of evidence is judged by
the strength of the evidence and its ability to make the existence
of a consequential fact either more or less probable and the
proponent’s need for the evidence.” Anderson-Wallace v. Rusk,
2021 UT App 10, ¶ 19, 482 P.3d 822 (cleaned up). This rule
“imposes the heavy burden not only to show that the risk of unfair
prejudice is greater than the probative value, but that it
substantially outweighs the probative value.” State v. Smith, 2019
UT App 141, ¶ 35, 449 P.3d 971 (emphasis added) (cleaned up).

¶49 Here, Counsel could have reasonably thought that any
objection to the “trained killer” testimony would have been
overruled. After all, the testimony did have some probative
value—it served to explain why Sydney had delayed her
disclosure of the events in question—and a competent attorney
could reasonably have believed that the trial court would be
extremely unlikely to conclude that this probative value was
substantially outweighed by the risk of unfair prejudice. Here, the
risk of unfair prejudice was not particularly high, where

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State v. Whitefeather

Boyfriend acknowledged that Whitefeather’s statement was not
meant to intimidate anyone and where the offense in question
was not murder—the sort of crime a “trained killer” might
commit—but was forcible sexual abuse. In this situation,
Whitefeather has simply not demonstrated that Counsel’s failure
to object was unreasonable under the circumstances. See State v.
Jordan, 2018 UT App 187, ¶ 50, 438 P.3d 862 (“The failure to raise
futile objections does not constitute ineffective assistance of
counsel.” (cleaned up)).

CONCLUSION

¶50 The trial court did not err in permitting the State to amend
the information during trial. Whitefeather’s jury bias arguments
are unpreserved and fail on the merits anyway. And we reject
each of Whitefeather’s evidentiary challenges.

¶51 Affirmed.

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