State v. Meik

2024 UT App 46

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
HAROLD WADE MEIK,
Appellant.

Opinion
No. 20210774-CA
Filed April 4, 2024

Third District Court, Tooele Department
The Honorable Dianna Gibson
No. 211300119

Emily Adams and Melissa Jo Townsend, Attorneys
for Appellant, assisted by law students Addison
Blair, Jacob Hibbard, and Jaden Steeves 1
Sean D. Reyes and David A. Simpson, Attorneys for
Appellee, assisted by law student Paige Skousen

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

TENNEY, Judge:

¶1 A jury convicted Harold Wade Meik of one count of
aggravated assault. Meik now appeals, raising several claims of
ineffective assistance of counsel. For the reasons set forth below,
we affirm.

1. See Utah R. Jud. Admin. 14-807 (governing law student practice
in the courts of Utah).
State v. Meik

BACKGROUND 2

¶2 On February 25, 2021, Meik, a resident of Wendover, paid
a visit to Grantsville, his former home. Meik later said that the
purpose of this trip was to check on his P.O. box and to
consolidate some items that he was storing in two storage units.

¶3 In his direct examination at trial, Meik said that around
5 p.m., he decided to see if his brother (Brother) was home. Meik
said that he wanted to talk to Brother about some money that he
thought Brother owed him, as well as his belief that Brother was
having an affair with Meik’s wife (Wife) and was providing her
with drugs. During his cross-examination, however, Meik gave a
different reason for his decision to go to Brother’s house. Meik
said that he saw Brother’s SUV in the post office parking lot
around 5 p.m. and thought that Brother had been “stalking [him]
around.” Meik said that he “drove around Grantsville for several
minutes trying to shake” Brother before deciding to go to
Brother’s house. When asked why he hadn’t mentioned this
alleged motive earlier, Meik said, “I guess I missed that detail.”

Initial Confrontations

¶4 Whatever the reason, Meik drove to Brother’s
neighborhood in a truck. As Meik drove toward Brother’s house,
he passed Brother, who was driving out of the neighborhood in
an SUV.

¶5 Meik and Brother then had two brief confrontations—one
on the road, and one in front of Brother’s house—and the men

2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Suhail, 2023 UT App 15, n.1, 525 P.3d 550 (quotation simplified),
cert. denied, 531 P.3d 730 (Utah 2023).

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State v. Meik

later gave conflicting accounts about what transpired during each
confrontation.

¶6 According to Brother’s account (which was given under
oath at trial), he and Meik passed each other on the road, at which
point each of them had their driver’s windows halfway down.
When Brother said, “Let’s go talk,” Meik responded by saying
“F off” or “F-you” and then drove past him. Brother assumed that
Meik was there to talk with him, so he pulled over at the “exit of
[his] neighborhood” and waited several minutes for Meik to loop
back around. When Meik didn’t appear, Brother became
concerned that Meik had gone to his house and might hurt his
wife or their child, so he started driving home. Brother testified
that as he approached his house, Meik started to drive toward him
“like he was going to try to hit [him].” Brother said that he
swerved across his grass to avoid Meik’s truck. Brother then
turned around and, through their open windows, again offered to
talk. He said that Meik responded favorably to the invitation and
motioned for Brother to follow him.

¶7 Meik described these events differently. According to
Meik, he stopped his truck on the side of the road when he pulled
into the neighborhood and saw Brother pulling out of his
driveway. Meik said that when Brother saw him, Brother “cut it
short and basically peeled out across the front of his lawn and
passed [him] on the wrong side.” Meik said that they didn’t
exchange words and that he didn’t have his window rolled down
anyway because it was cold. After Brother left, Meik turned his
truck around and parked in front of Brother’s house, anticipating
his return. Meik said that when Brother returned, Brother “came
at me head on and gassed it and went across his lawn again.”
Meik believed that Brother was not prepared to have a “civil
conversation,” so he drove out of the neighborhood. After Brother
“raced” to catch up with Meik, Meik decided to pull over in a
“safe place” where they could have a “conversation” around
“witnesses and surveillance.”

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State v. Meik

The Fight

¶8 Meik pulled into the parking lot of a nearby store, and
Brother soon followed him in. They parked their vehicles about
ten feet apart. A tan SUV was parked next to Meik’s truck, and
that section of the parking lot was otherwise empty. A mother
(Mother) and a daughter (Daughter) were inside the tan SUV at
the time.

¶9 Brother and Meik provided differing accounts of what
happened next. According to Brother, he was the first one to exit
a vehicle, and after doing so, he looked around for Meik. He said
that he could see that Meik’s driver’s seat was empty but didn’t
recall if he could see the passenger side or not. While standing by
the driver’s door of his SUV, Brother looked back in and noticed
a hammer on the floor that he had used to repair the SUV’s battery
earlier that day. Brother testified that he suddenly thought he
might need the hammer if Meik “trie[d] to attack” him, so he
reached into the SUV and grabbed it. Brother testified that as he
was turning back around, Meik approached him and stabbed him
in the stomach. Lashing out in self-defense, Brother “struck
[Meik] in the face” with the hammer.

¶10 Meik’s account was different. According to Meik, he exited
his truck before Brother had even parked. Meik said that he was
waiting a short distance away from the driver’s door when
Brother pulled up “right where [he] was standing,” got out of his
SUV with the hammer already in hand, and then swung at Meik
“with the biggest swing he could,” hitting Meik “right in the
head.” Meik testified that he then turned back to his truck, opened
the passenger’s side door, and retrieved a hunting knife from his
glove compartment to defend himself. Meik said that Brother
followed, “swinging at [him] the whole time.” Meik said that, at
some point during this process, he pulled a “winter cap” out of
his “belt line” and put it on his head and his coat hood over that
to protect himself. Meik also said that during a short gap between
what he described as otherwise constant attacks, Meik

20210774-CA 4 2024 UT App 46
State v. Meik

unsheathed the knife and stabbed Brother in the stomach. Meik
said that when Brother “backed up” to “check[] his wound,” Meik
reached inside his truck, closed his glove compartment, and then
closed the passenger’s side door, so as to prevent Brother from
“doing any damage” to his vehicle.

¶11 Four eyewitnesses observed most of the fight: Mother and
Daughter, as well as a couple who lived across the street from the
store (Resident 1 and Resident 2). At trial, Mother testified that the
two vehicles parked in close proximity to each other.
Additionally, Mother testified that she saw Brother leave his
vehicle first, after which Meik walked around his truck and met
Brother “in the middle” of the two vehicles. She said that she
never saw Meik return to his truck or open the passenger’s side
door. She could not make out specific details of the ensuing fight;
from her perspective, the two men appeared to be “horse-
playing.”

¶12 Daughter’s recollections were mostly similar to Mother’s.
She agreed that the vehicles were “pretty close” to each other. She
also saw Brother exit his vehicle first, followed by Meik, and she
recalled seeing the two men meet in the middle. Like Mother,
Daughter said that she never saw Meik return to his truck.
Daughter also added one additional detail: namely, she testified
that she saw Meik “pull[] something out of his pocket.” While she
couldn’t tell for sure whether it was a weapon, she saw Brother
run away after he saw Meik pull it out.

¶13 For their parts, Resident 1 and Resident 2 observed the
initial moments of the fight through the window of their house.
Resident 1 remembered thinking that she was looking at “dark
figures” “[w]restling with each other” at first, and Resident 2
similarly recalled seeing two men “kind of wrestling.”

20210774-CA 5 2024 UT App 46
State v. Meik

The Flight

¶14 At trial, everyone (including Meik) agreed that after the
initial exchange of blows, Brother turned and fled toward a
barbed wire fence behind the store and that Meik pursued him.
Resident 1 saw that “one was chasing the other.” In Resident 2’s
recollection, “one gentleman started running off and the other one
pursued after.” And Mother and Daughter, who were able to
distinguish Brother and Meik by the make of their vehicles, both
testified that Brother ran away and that Meik pursued him.

¶15 Brother testified that while he was running away, he
occasionally “look[ed] back” to keep an eye on Meik’s pursuit. At
one point, just as Brother felt he was about to “go down” due to
blood loss from his stomach wound, he turned and took “one last
swing with the hammer” before collapsing. The blow connected
with the back of Meik’s head, causing Meik to collapse on the
ground with Brother. After they fell, Brother said that Meik
“jumped on top of” him.

¶16 Meik conceded that he followed Brother, knife in hand. In
his direct examination, he testified that he “chased” Brother and
that Brother was “running” and “swinging the hammer the whole
way,” though he claimed in cross-examination that Brother
“never ran.” Meik also said that Brother “was going backwards
swinging the hammer. He didn’t run.” And although Brother had
claimed that the two fell to the ground after he struck Meik with
the hammer, Meik claimed that he had tackled Brother. 3

3. The various eyewitnesses disagreed somewhat on this point.
Residents 1 and 2 both agreed that Brother got caught on the
barbed wire fence; from there, Resident 1 said that Meik “took
control and was on top of [Brother] for the remainder of the time,”
while Resident 2 said that Meik “was able to catch up to [Brother]
and took him to the ground.” Mother, however, simply said that
(continued…)

20210774-CA 6 2024 UT App 46
State v. Meik

¶17 Meik offered two motives for tackling Brother. During his
direct examination, he testified that he “basically tackled [Brother]
to secure the hammer.” But during his cross-examination, he
claimed that he chased Brother to render first aid, and that since
he believed that the best treatment for Brother’s knife wound was
for Brother to “lay on his back,” that’s why he tackled him.

The Struggle on the Ground

¶18 Once on the ground, the brothers struggled over the
weapons. Brother testified that he was “face down” when Meik
jumped on top of him. Brother said that he tried to throw the
hammer and knife beyond the fence while Meik tried to “keep
them in [the] area.” Brother said that when Meik managed to grab
the knife off the ground, Brother grabbed “half the blade and
part[] of the handle” with his fingers in an attempt to prevent
Meik from using it against him, and that during this struggle,
Meik stabbed him. By contrast, Meik said that after he tackled
Brother “to his back,” Brother “stabbed himself in the right
shoulder” while attempting to take the knife from Meik.4 Meik
said that although Brother asked Meik several times to “let [him]
go,” Meik refused, insisting, “[W]e’re both hurt and we both need
medical attention.”

¶19 By this point, Mother and Daughter had driven down the
street for safety and did not see much more. Resident 1 and
Resident 2, however, had stepped out onto their porch to observe
the fight more closely. From that vantage point, Resident 1 heard

the two “kind of struggled” and that “they went from struggling
to the ground.” Daughter said that they “just fell. That’s all [she]
saw.”

4. A responding officer testified that Brother “was facing down”
when he arrived on the scene. When asked about this contrary
testimony on cross-examination, Meik explained that Brother
“worked himself to his belly by the time [the officer] got there.”

20210774-CA 7 2024 UT App 46
State v. Meik

someone say, “Drop the fucking knife,” and, “He’s going to F-ing
stab me. Call 911.” As Resident 1 went inside and called the police,
Resident 2 relayed the fight to her. Resident 2 heard one man say
that he was “trying to get” the other man “not to stab him.”

¶20 A store employee (Employee) who had come outside to
take the trash out also saw the struggle by the fence. She
threatened to call the police if the brothers didn’t “knock it off.”
She heard one of them yell, “Call the cops. He’s fucking stabbing
me.” The “other one” then yelled, “He hit me in the head with a
fucking hammer.” Employee called the police, who arrived
shortly thereafter.

¶21 The first officer on the scene (Officer) testified that he saw
two men “laying in the dirt,” one on top of the other, fighting over
a knife. He ordered them to separate from each other. Meik
obeyed, and Officer then handcuffed him. When Officer
attempted to handcuff Brother, however, Brother “cried out in
pain.” Several additional officers and an ambulance arrived.
When one officer untucked Brother’s shirt, Brother’s “intestines
or something” came “bulging out of [his] stomach a couple
inches.” Brother was airlifted to a hospital in Salt Lake City, where
he stayed for seven days and went through numerous surgeries.
By contrast, Meik had a “laceration on the top of his head” and “a
small laceration on his face.” Officer transported him to a local
hospital.

¶22 When officers inspected the scene, Brother’s SUV was still
running, and the driver’s door was “ajar.” Meik’s truck was also
running, but none of its doors were open.

Trial

¶23 The State charged Meik with attempted murder or, in the
alternative, aggravated assault resulting in serious bodily injury,
as well as one count of stalking. Meik requested and obtained a
self-defense instruction. At trial, the State called 10 witnesses:

20210774-CA 8 2024 UT App 46
State v. Meik

Brother, Mother, Daughter, Resident 1, Resident 2, Employee, and
four police officers. Meik testified in his own defense and was the
only defense witness.

¶24 In addition to the testimony described above, Brother
recounted two previous incidents in which Meik had come to
Brother’s house “looking for an argument.” In both instances,
Brother said that Meik had accused him of sleeping with Wife. In
one of the incidents, Brother said that he told Meik not to come
back or he would call the police; later that night, Meik texted him,
“Try that again and it will be your last breath.” 5

¶25 The State also asked Brother whether, prior to the parking
lot altercation, he had been “aware of any violence” involving
Meik and Wife. Brother described two such incidents. Regarding
the first, Brother said that Meik had told him that, in 2018, Wife
had temporarily left Meik and had been granted a protective
order against him. While describing what he had heard about this
incident, Brother testified that Wife had told him that Meik was
“mean” to her and “jealous” and that he would “keep her from
leaving”—although “she never said, like, he hit her or whatever.”

¶26 The second involved a previous neighbor (Neighbor) of
Meik’s. Meik had apparently thought that Neighbor was having
an affair with Wife for the last 20 years. Brother testified that Meik
told Brother that he was “watching” Neighbor and that Neighbor
“was going to get it.” According to Brother, Meik also told Brother
he had “popped a couple shots at” Neighbor’s truck and that
Neighbor had obtained a protective order against him. At the
conclusion of this line of questioning, the State asked Brother if he
had been aware of these events “prior to the incident” between
them in the parking lot on February 25. Brother said he had been.

5. On appeal, Meik concedes that these incidents were admissible
as substantive evidence of the State’s stalking charge and
therefore does not challenge the admissibility of testimony about
them.

20210774-CA 9 2024 UT App 46
State v. Meik

The State then asked him, “Is that why you pulled out the
hammer?” Brother replied that it was.

¶27 During his testimony, Meik acknowledged having accused
multiple people—including Brother, Neighbor, and even his own
son—of carrying on affairs with Wife. He also acknowledged that
Wife had obtained a protective order against him. But he denied
ever having bragged about “shooting up” Neighbor’s truck or
having any knowledge of Neighbor’s protective order.

¶28 Meik also testified that Brother “had been aggressive
before.” In particular, Meik claimed that Brother had “attempt[ed]
assault” against him three times before, once at a gas station and
twice in front of Brother’s house. On each occasion, Meik claimed
that Brother had the same hammer that he used on February 25.
Meik claimed that on two of the occasions, Brother had “swung”
the hammer at Meik, though he had stopped “short of hitting”
him, in apparent attempts to “provoke [him] into an altercation.”

¶29 At the close of the three-day trial, the jury acquitted Meik
on the attempted murder and stalking counts, but it convicted
Meik of aggravated assault. Meik appeals.

ISSUES AND STANDARD OF REVIEW

¶30 Meik raises three claims of ineffective assistance of counsel.
First, Meik claims that his counsel (Counsel) was ineffective for
failing to object to Brother’s testimony about Meik’s prior acts of
aggression toward Wife and Neighbor, which Meik argues were
inadmissible under rule 404(b) of the Utah Rules of Evidence.
Second, Meik contends that Counsel was ineffective for failing to
request advance notice from the State of these “other acts” under
rule 404(b). And third, Meik argues that Counsel was ineffective
for failing to object to Brother’s testimony about Wife’s statements
about Meik’s behavior during their marriage, arguing that this
was hearsay. “When a claim of ineffective assistance of counsel is

20210774-CA 10 2024 UT App 46
State v. Meik

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. Alarid, 2022 UT App 84, ¶ 24, 514 P.3d 610, cert. denied, 525
P.3d 1261 (Utah 2022).

ANALYSIS

¶31 To prevail on an ineffective assistance claim, Meik must
show (1) “that counsel’s performance was deficient” and (2) “that
the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). Meik must establish both
prongs. See State v. Suhail, 2023 UT App 15, ¶ 126, 525 P.3d 550,
cert. denied, 525 P.3d 730 (Utah 2023). If either is lacking, “the claim
fails” and this court “need not address the other.” State v. Nelson,
2015 UT 62, ¶ 12, 355 P.3d 1031.

¶32 To establish deficient performance, Meik must “overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Strickland, 466
U.S. at 689 (quotation simplified). The focus of this inquiry is
reasonableness, and we “judge the reasonableness of counsel’s
challenged conduct, viewed as of the time of counsel’s conduct.”
State v. Carter, 2023 UT 18, ¶ 45, 535 P.3d 819 (quotation
simplified). “Because the decision not to pursue a futile motion is
almost always a sound trial strategy, counsel’s failure to make a
motion that would be futile if raised does not constitute deficient
performance.” State v. Powell, 2020 UT App 63, ¶ 20, 463 P.3d 705
(quotation simplified).

¶33 To establish prejudice, Meik “must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” State v. Bonds, 2023 UT 1, ¶ 53, 524
P.3d 581 (quotation simplified). “A verdict or conclusion only

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State v. Meik

weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support.”
Strickland, 466 U.S. at 696 (quotation simplified).

I. Failure to Object to Prior Bad Acts

¶34 Brother testified about several violent or aggressive
incidents that had previously occurred between Meik and either
Wife or Neighbor. We address two of them here: (1) that Meik had
threatened Neighbor with retaliation for allegedly sleeping with
Wife and that Meik had then “popped a couple shots” at
Neighbor’s truck, and (2) that Meik “was just aggressive” toward
Wife and “wouldn’t let [her] do basically anything.” 6

¶35 Meik argues that Counsel rendered ineffective assistance
by not objecting to this testimony under rule 404(b) of the Utah
Rules of Evidence. “The Utah Supreme Court has held that bad
acts evidence is admissible if three requirements are met.” State v.
Balfour, 2018 UT App 79, ¶ 28, 418 P.3d 79; see also State v. Green,
2023 UT 10, ¶ 63, 532 P.3d 930. First, the court must “determine
whether the bad acts evidence is being offered for a proper,
noncharacter purpose.” Balfour, 2018 UT App 79, ¶ 28 (quotation
simplified). “Second, the court must determine whether the bad

6. As part of his rule 404(b)-based ineffective assistance claim,
Meik also argues that Counsel should have objected to testimony
that Neighbor and Wife had both obtained protective orders
against Meik. We’re cognizant of Meik’s assertion that the
protective order evidence might stand on somewhat different
analytical footing than the other evidence at issue in this claim—
both in terms of its potential relevance and the potential for unfair
prejudice. But to establish ineffective assistance, Meik must
establish both deficient performance and prejudice. We need not
(and do not) decide whether Counsel performed deficiently by
not moving to suppress the protective order testimony. Instead,
in Part III below, we conclude that Meik was not prejudiced by
the admission of this testimony.

20210774-CA 12 2024 UT App 46
State v. Meik

acts evidence meets the requirements of rule 402, which permits
admission of only relevant evidence.” Id. (quotation simplified).
“Finally, the trial court must determine whether the bad acts
evidence meets the requirements of rule 403.” Id. (quotation
simplified).

¶36 Here, we conclude that the evidence in question was
admissible under this three-part test. As a result, Meik has not
shown that Counsel performed deficiently for not making this
objection.

A. Rule 404(b)

¶37 “The threshold 404(b) question is whether the evidence has
a plausible, avowed purpose beyond the propensity purpose that
the rule deems improper.” State v. Thornton, 2017 UT 9, ¶ 58, 391
P.3d 1016 (quotation simplified). “If it does then the evidence is
presumptively admissible (subject to rule 402 and 403 analysis).”
Id. Proper purposes under rule 404(b) include those enumerated
in the rule itself—to prove “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Utah R. Evid. 404(b)(2). This list, however, is
“illustrative and not exclusive.” Green, 2023 UT 10, ¶ 70 (quotation
simplified).

¶38 In State v. Labrum, 2014 UT App 5, 318 P.3d 1151, we
addressed this rule in a case involving many of the same
dynamics at issue here. In that case, there had been a violent
confrontation between the defendant and his wife; the
defendant’s wife had armed herself with keys and had used them
against the defendant during that confrontation; the defendant
was later charged with assault; and at trial, the defendant raised
a claim of self-defense, claiming that his wife had been the
aggressor. Id. ¶¶ 2–9, 18–23. Against this backdrop, the trial court
in Labrum allowed the State to introduce evidence of the
defendant’s “prior acts of violence” to support the wife’s

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State v. Meik

testimony that “she armed herself with the keys to protect
herself,” rather than to “ambush” the defendant. Id. ¶ 23.

¶39 On appeal, we upheld the admission of this evidence. We
noted that rule 404(b) generally allows evidence of prior acts for
the purpose of showing “context” and that it more particularly
allows such evidence to show a “victim’s state of mind,”
including “the victim’s fear of the defendant.” Id. ¶ 22. Applying
those principles to the facts of that case, we held that

without an understanding that [the] wife had reason
to fear [the defendant], the State would be unable to
explain why she brought the keys to bed and would
be unable to challenge effectively [the defendant’s]
testimony that [the] wife was the aggressor and that
he was merely defending himself.

Id. ¶ 23.

¶40 The same is true here. Similar to Labrum, this case involved
a violent confrontation between two family members in which the
alleged victim had armed himself at the outset of the
confrontation and the defendant had raised a self-defense claim
at trial, claiming that the alleged victim was actually the aggressor
all along. If presented to the jury in a vacuum, Brother’s decision
to arm himself with a hammer before he even saw Meik and
before any violence had begun would likely have seemed odd.
“Left without explanation, the jury might have inferred” from this
that Brother “intended to ambush” Meik. Id. ¶ 34 (quotation
simplified).

¶41 Indeed, Meik actively sought to create just such an
impression. At trial, he testified that Brother had brought the
same hammer to three prior altercations and that, at two of these,
he had “swung it” to “provoke” Meik into a fight. Additionally,
in Meik’s recounting of the February 25 incident, Brother “already
had the hammer in his hand” when he left his SUV and then

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State v. Meik

“came straight” at Meik and swung without provocation.
Brother’s use of the hammer was thus key to Meik’s self-defense
claim.

¶42 Given the nature of this confrontation and the nature of the
defense advanced by Meik at trial, the State was entitled to put on
evidence of the “victim’s state of mind,” including the reason for
“the victim’s fear of the defendant.” Id. ¶ 22. To repurpose Labrum,
“without an understanding that [Brother] had reason to fear
[Meik], the State would be unable to explain why” Brother
grabbed the hammer out of his SUV “and would be unable to
challenge effectively [Meik’s] testimony that [Brother] was the
aggressor and that [Meik] was merely defending himself.” Id. ¶ 23
(quotation simplified).

¶43 The testimony in question did just that. This testimony
showed that Brother was aware of Meik’s history of being
controlling toward Wife and of acting aggressively toward men
that he thought were having extramarital relations with her.
Because Brother also knew that Meik thought Brother was having
an affair with Wife, Brother’s awareness of these prior incidents
helped explain why Brother decided to arm himself with the
hammer before speaking with Meik in the parking lot. Indeed,
when the prosecutor asked Brother if he had been aware of these
events “prior to the incident” between them in the parking lot on
February 25, Brother said he had been. The prosecutor then asked
him, “Is that why you pulled out the hammer?”, and Brother
replied that it was.

¶44 Under Labrum, we thus conclude that these incidents were
introduced for a proper non-propensity purpose and therefore
did not violate the first step of the rule 404(b) analysis.

B. Rule 402

¶45 Rule 402 “permits admission of only relevant evidence.”
Balfour, 2018 UT App 79, ¶ 28 (quotation simplified). And under

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State v. Meik

rule 401, evidence is relevant if “(a) it has any tendency to make a
fact more or less probable than it would be without the evidence;
and (b) the fact is of consequence in determining the action.” Utah
R. Evid. 401.

¶46 Again, the central issue in this case was who the aggressor
was in the violent confrontation in the parking lot: Meik (the
State’s view) or Brother (the defense’s view). As correctly noted
by the district court, because this was a self-defense case, “the
state[s] of mind of both” Meik and Brother were thus “at issue,”
and, as a result, evidence showing what Meik and Brother
“individually believed” was “relevant to and probative of the
issues.”

¶47 As discussed above, the testimony in question went
directly to the question of why Brother armed himself with a
hammer, which would have had some tendency to make certain
facts at issue more probable than they would have been without
the evidence. This testimony was accordingly relevant.

C. Rule 403

¶48 This leaves the question of whether testimony about the
prior acts satisfied the requirements of rule 403. Evidence may be
excluded under rule 403 only where its probative value is
“substantially outweighed” by the danger of “unfair prejudice.”
Utah R. Evid. 403. “Evidence of bad character or unrelated prior
crimes is prejudicial because of the tendency of a fact finder to
convict the accused because of bad character rather than because
[the accused] is shown to be guilty of the offenses charged.” State
v. Reed, 2000 UT 68, ¶ 23, 8 P.3d 1025 (quotation simplified). Given
the requirement that the risk of unfair prejudice must
“substantially outweigh” the evidence’s probative value, courts
“indulge a presumption in favor of admissibility” in a rule 403
analysis. Green, 2023 UT 10, ¶ 78 (quotation simplified).

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State v. Meik

¶49 For largely the same reasons discussed above, we regard
the probative value of this evidence as being high. The question
of why Brother armed himself before he even saw Meik was
squarely before the jury. During Brother’s cross-examination, for
example, Counsel focused on the perceived oddity of that
decision, suggesting that it showed that Brother was the
aggressor. Brother’s awareness of Meik’s past behavior was thus
probative because it showed that he was afraid that Meik was
going to attack him. Without this testimony, the State would have
been impaired in its ability to effectively respond to Meik’s self-
defense claim.

¶50 With respect to the potential for unfair prejudice, Meik
points to State v. Reed, wherein our supreme court expressed
concern about the heightened potential for unfair prejudice that
“may result from introduction of prior criminal acts committed
against a number of unrelated victims,” as opposed to cases in
which the evidence involved multiple acts against a single victim.
2000 UT 68, ¶ 31. Meik then analogizes Reed to his case, noting
that the testimony at issue here also involved acts of aggression
toward multiple people.

¶51 Even accounting for this, we do not believe the risk of
unfair prejudice substantially outweighed the evidence’s
probative value. In the context of this case and the competing
claims that were before the jury, the probative value of Brother’s
testimony was high. And on the other end of the balancing, the
danger that the jury would draw an unfair inference from this
evidence was, in our view, mitigated by two factors.

¶52 First, the past acts in question were similar to Brother’s
account of what was prompting his conflict with Meik. As noted,
the past incidents involved Meik acting aggressively because of
his control and jealousy issues relating to Wife, and Brother was
now claiming that these very same issues were prompting Meik
to act aggressively toward him. In Green, our supreme court
recently held that a district court did not abuse its discretion when

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State v. Meik

it concluded that similarities between past acts and the acts in
question would “reduce[] the tendency for the jury to decide upon
an improper basis,” because it would be “unlikely that a jury
would find the evidence in one . . . case to be lacking but find the
evidence in another . . . case compelling enough to deliver a
verdict on an improper basis.” 2023 UT 10, ¶¶ 77–78.

¶53 Second, and perhaps more importantly, the risk of unfair
prejudice in this case was also mitigated by the ways in which the
State did and did not use this evidence at trial. While questioning
Brother about these incidents, the prosecutor consistently keyed
in on Brother’s awareness of the past incidents, and those
questions culminated in the prosecutor asking whether that
awareness motivated Brother to grab the hammer. The
prosecutor’s questions included:

• “Were you aware of any times that [Meik] threatened or
was violent toward anyone else that you knew or heard
of?”

• “[W]ere you aware of any violence involving [Meik] and
[Wife] . . . prior to this assault?”

• “Tell us what you were aware of.”

• “[B]efore this incident occurred, were you aware of
whether or not [Meik] had been violent toward [Wife]?”

• “Were you aware of any interaction between [Meik] and
[Neighbor]?”

• “Did [Meik] ever indicate to you that he did anything
toward [Neighbor]?”

• “[S]o you were aware of the incident with [Neighbor] prior
to the assault; correct? . . . And the incident or incidents
with [Wife] and [Meik]; correct? . . . And you were aware

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State v. Meik

of threats that were made to you by [Meik] prior to the
incident; correct? . . . Is that why you pulled out the hammer?”
(Emphasis added.)

¶54 The prosecutor’s closing argument was similarly focused.
After summarizing the prior bad acts evidence, the prosecutor
emphasized that Brother “was aware of all these things” and that
he was also “aware” that “Meik’s violent nature” was tied to
Meik’s belief that “numerous people” were “having sex with his
wife.” The prosecutor then argued that after Brother pulled into
the parking lot on February 25, he thought to grab the hammer
because he believed “there might be a threat here.” While the
prosecutor’s reference to “Meik’s violent nature” was unfortunate
and arguably improper, we ultimately agree with the State that
the prosecutor’s presentation as a whole wasn’t focused on Meik’s
violent tendencies in the abstract; rather, the prosecutor
consistently linked these past incidents to Brother’s personal
awareness of Meik’s aggressive reaction to suspicions of
infidelity, which was the very thing at issue in this case.

¶55 In short, this was highly probative evidence, and the
danger of unfair prejudice was reduced by both the similarities to
this case and the prosecutor’s (mostly) targeted use of the
evidence. Given this, we conclude the probative value was not
substantially outweighed by the danger of unfair prejudice.

¶56 From there, and returning to the broader question, we thus
also conclude that Counsel did not perform deficiently. Since the
testimony in question satisfied each part of the rule 404(b) inquiry,
we conclude that the proposed objection under that rule would
have been futile. As a result, Counsel could reasonably forgo
making it.

II. Failure to Request Notice of Rule 404(b) Evidence

¶57 “On request by a defendant,” the State is required to give
pretrial notice to a defendant of potential 404(b) evidence. Utah R.

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State v. Meik

Evid. 404(b)(2). Meik argues that Counsel provided ineffective
assistance by not requesting such notice. We need not decide
whether Counsel performed deficiently. This is so because, even
if this was deficient performance, Meik has not shown that he was
prejudiced. 7

¶58 Meik “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Bonds, 2023 UT 1, ¶ 53
(quotation simplified). And when evaluating this, “we assess
counterfactual[] scenarios—that is, what would have happened
but for the ineffective assistance.” Ross v. State, 2019 UT 48, ¶ 76,
448 P.3d 1203.

¶59 The apparent reason for rule 404(b)’s pretrial notice rule is
to give the defendant a fair chance to prepare a response to this
particular kind of evidence. But Meik has not persuaded us that,
with advance notice, there is anything different that Counsel
could or should have done that would have likely led to a more
favorable outcome. Meik initially asserts that, with advance
notice, Counsel “could have moved to exclude” the evidence
before trial. But we’ve concluded above that much of the evidence
in question was admissible, so with respect to that evidence, such
an objection would have failed. And, as we discuss below, the
remaining evidence at issue in Meik’s 404(b) claim (namely, the
evidence regarding the protective orders) was non-prejudicial, so
it also provides no basis for reversal with respect to the lack of
notice claim.

¶60 Meik also argues that pretrial notice would have allowed
Counsel to better defend against this evidence at trial. But
Counsel’s approach at trial already showed an awareness of these

7. In light of this, we also need not weigh in on the State’s assertion
that, although no such request appears in the record, Meik has
failed to establish that Counsel did not receive notice of the 404(b)
evidence through some other means.

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State v. Meik

general issues. For example, in his opening statement, Counsel
frankly acknowledged that Meik thought that Brother “was
sleeping with his wife” and that this “was certainly hard on”
Meik. And Counsel likewise already mounted a defense to the
related claims. For example, Counsel repeatedly attempted to cast
doubt on Brother’s claim that he was afraid of Meik (and, by
extension, Brother’s claim that Meik was the aggressor in this
confrontation). This included questioning Brother about prior
threatening messages that he had sent Meik, as well as arguing
that Brother’s professed behavior was inconsistent with fear.

¶61 Meik has not explained what more Counsel could have
done to respond to these claims if he had received pretrial notice.
Because of this, Meik has not persuaded us that there’s any
reasonable probability that the outcome at trial would have been
different without the alleged deficient performance. This claim
accordingly fails.

III. Failure to Object to Potential Hearsay and to Remaining
Other Acts Evidence

¶62 Meik argues that Counsel was ineffective for not objecting
to Brother’s testimony that Wife had told him that Meik was
“mean,” “jealous,” and “tried to keep her from leaving.” In Meik’s
view, these statements were inadmissible hearsay. In response,
the State argues that the statements were not hearsay because they
were offered to show Brother’s state of mind going into the
confrontation. We need not decide whether Counsel performed
deficiently by not objecting on this basis, however, because we
conclude that Meik was not prejudiced by the admission of this
evidence. For similar reasons, we also conclude that Meik was not
prejudiced by Counsel’s failure to file a motion to suppress the
testimony about his past protective orders.

¶63 The crux of Meik’s prejudice argument for both issues is
his assertion that this case presents a “classic credibility contest,
where the jury had to choose who to believe.” Meik argues that,

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State v. Meik

in such cases, even small changes to the evidentiary picture can
tip the scales. See State v. J.A.L., 2011 UT 27, ¶ 42, 262 P.3d 1. In
Meik’s view, the testimony in question here did just that.

¶64 We disagree with Meik’s assessment of the potential
prejudice stemming from the testimony in question, however, and
we do so for several reasons.

¶65 First, this case did not present the jury with a “classic
credibility contest” between just two witnesses. At trial, Brother
testified at length about the lead-up to the confrontation and
about how Meik attacked him during it. The State also presented
testimony from several eyewitnesses, and those eyewitnesses
largely corroborated Brother’s account of the confrontation. For
example, Meik claimed that he exited his truck before Brother had
even parked, but Brother, Mother, and Daughter all said that
Brother was the first one to exit a vehicle. As a further example,
Meik claimed that while fending off several unprovoked blows
from Brother, he went back to his truck, opened the passenger’s
side door, and grabbed his knife. But Mother and Daughter both
testified that they never saw Meik return to his truck or open the
passenger’s side door, thereby undermining this part of Meik’s
story too. Thus, to the extent that this case did present the jury
with a “credibility contest,” it wasn’t a credibility contest between
just Meik and Brother. Rather, it was a credibility contest with
Meik on one side and Brother on the other, but Brother had
corroborative testimony on several pieces of his story from
unrelated eyewitnesses.

¶66 Second, Meik’s credibility was also undermined by several
internal inconsistencies within his own account. For example,
Meik offered inconsistent explanations for why he chose to go to
Brother’s house. In his direct examination, Meik said that after
going to Grantsville for unrelated reasons, he decided to see if
Brother was home so that he could discuss some money that he
was owed, as well as his suspicion that Brother was having an
affair with Wife. On cross-examination, however, he testified that

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State v. Meik

he actually went to Brother’s house after Brother was “stalking
[him] around Grantsville” and he couldn’t “shake” him. When
asked to explain the discrepancy in these two stories, Meik said,
“I guess I missed that detail.”

¶67 Meik also gave inconsistent accounts of what happened in
the later stages of the confrontation. In his direct examination, he
testified that he “chased” Brother and that Brother was “running”
and “swinging the hammer the whole way,” but he then claimed
in cross-examination that Brother actually “didn’t run” and
“never ran.” On this, the various witnesses agreed with Meik’s
initial account (as opposed to Meik’s account from cross-
examination)—Resident 2, Mother, and Daughter all described
Brother as running away from Meik, while Resident 1 said that
Meik was “chasing” Brother. And none of the witnesses saw
anything compatible with Brother walking “backwards swinging
the hammer.”

¶68 Meik also gave inconsistent accounts of why he pursued
Brother through the parking lot at all. Meik initially claimed that
he was trying to disarm Brother. But he then claimed that he
actually chased Brother in order to get him to “lay on [his] back”
for first-aid purposes.

¶69 Third, the nature of the pursuit across the parking lot
undermines Meik’s claim about who played what role in this
confrontation. Meik, Brother, and four other witnesses all agreed
that after Brother tried to break things off, Meik pursued him
through the parking lot. By Meik’s own admission, he then
“tackled” Brother and held him to the ground for several minutes,
despite Brother’s repeated entreaties to “let [him] go.” Mother and
Daughter likewise both testified that Meik was on top of Brother
during that exchange. And during the moments in which Meik
was on top of Brother, three witnesses—Resident 1, Resident 2,
and Employee—all said that they heard one of the men shouting
that he thought the other man was trying to stab him, which, in

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State v. Meik

context, would have been a real-time indicator that Brother
thought that Meik was still attacking him with his knife.

¶70 This case largely turned on the question of who the
aggressor was. Meik’s decision to prevent Brother from
disengaging and instead run after Brother and tackle him in the
parking lot suggests that it was Meik who desired a violent
confrontation, not Brother. And although Meik claimed that he
did so to either disarm Brother or instead render first aid, our
analysis of prejudice within the ineffective assistance context
requires us to assess the probabilities of how the jury viewed the
testimony in question. Here, we think it more likely that Meik’s
decision to chase after his bleeding Brother and then tackle him
would have been viewed by the jury as a sign that Meik was the
aggressor all along, particularly given Brother’s subsequent
shouts from the ground about Meik attacking him with the knife.

¶71 Finally, the two brothers sustained markedly different
wounds from the confrontation. Brother sustained a significant
stab wound to his stomach that caused him to be airlifted to a
hospital, where he stayed for seven days and received numerous
surgeries. By contrast, Meik sustained only a “laceration on the
top of his head” and “a small laceration on his face”—wounds
that seem inconsistent with Meik’s claim that, at the outset of the
confrontation, Brother had taken the “biggest swing he could”
and hit him in the head with a hammer, as well his claim that
Brother had then followed Meik back to the truck while
continuously “swinging at” him with the hammer.

¶72 In short, Meik asks us to view this as a credibility contest
between the differing accounts given by Meik and Brother. But
Brother’s account was in some measure corroborated by other
witnesses, Meik’s account was undermined by his own
inconsistencies, Meik’s claim that Brother was the aggressor was
at odds with his pursuit of Brother across the parking lot, and the
nature of the injuries was more consistent with Brother’s account
than Meik’s. We therefore don’t believe there’s a reasonable

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State v. Meik

probability that the jury would have reached a more favorable
verdict if it had not heard the evidence about either the alleged
hearsay or the protective orders. And we thus conclude that Meik
was not prejudiced by any error relating to that evidence.

CONCLUSION

¶73 Meik has raised several claims of ineffective assistance. But
after reviewing those claims and the evidence in this case, we see
no basis for concluding that there was any prejudicial error. His
conviction is accordingly affirmed.

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