State v. Torres

2018 UT App 113
T HE U TAH COURT OF A PPEALS
S TATE OF U TAH ,
Appellee,
v.
LUIS A. TORRES JR .,
Appellant.
Opinion
No. 20160879-CA
Filed June 14, 2018
Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 161900917
Peter A. Daines, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and JILL M. POHLMAN concurred.
HAGEN, Judge:
¶1 	A jury convicted Luis A. Torres Jr. of one count of
aggravated assault (Count 1), a felony, and one count of assault
(Count 2), a misdemeanor, stemming from violent acts that he
committed 	during 	an 	argument 	with 	the 	victim, 	his 	then-
girlfriend. Torres appeals his conviction on Count 1, arguing that
he 	received 	constitutionally 	ineffective 	assistance 	of 	counsel
because his trial counsel did not move for a directed verdict and
did not object to the admission of instant messages in which
Torres admitted to prior acts of abuse against the victim. Because
the State produced sufficient evidence to justify submitting the
case to the jury, trial counsel did not perform deficiently in
failing to raise a futile motion. In addition, given the strong
evidence of guilt, any error in admitting the contested messages
at trial did not prejudice the defense. Accordingly, we affirm.

State v. Torres
20160879-CA 	2 	2018 UT App 113
BACKGROUND
¶2 	Torres and the victim had been involved in an on-again-
off-again relationship for several years. Late one evening, the
victim planned to spend the night with Torres at his father’s
apartment, but the couple began arguing. Torres eventually
“tossed” his cell phone at the victim, hitting her in the chin. After
exchanging “fuck you[s],” Torres told the victim to leave.
¶3 	As the victim gathered her belongings, Torres punched
her in “the back of [the] head.” The victim began crying and told
Torres not to hit her. In response, Torres said, “Stop fucking
crying, I didn’t hit you that hard.” The argument moved into the
kitchen where Torres hit the victim with his hand “next to her
left eye” before he walked out of the apartment. According to the
victim, although Torres’s father, sister, and the sister’s children
were asleep in the apartment at the time, no one stirred during
the argument.
¶4 	After the victim finished gathering her belongings, she
walked out to the parking lot where she noticed Torres crouched
down next to the rear passenger tire of her vehicle. Assuming
that Torres was letting air out of her tire, the victim yelled,
“[W]hy are you doing this?”
¶5 	The victim moved toward the driver’s side of her vehicle,
but Torres blocked the door and refused to budge. The victim
went around to the rear passenger door and crawled through
her 	car 	to 	the 	driver’s 	seat 	while 	Torres 	climbed 	into 	the
passenger seat beside her. She begged Torres to let her leave, but
he 	responded, 	“[F]uck 	you 	bitch.” 	When 	the 	victim 	then
attempted to start the ignition, Torres grabbed her keys, got out
of her car, and got into his own.
¶6 	In response, the victim walked to the driver’s side of
Torres’s vehicle and asked him to return her keys and to “just
leave her alone.” Torres refused and started his vehicle. To
prevent Torres from leaving with her keys, the victim stood in

State v. Torres
20160879-CA 	3 	2018 UT App 113
front of his vehicle. Undeterred, Torres shifted his vehicle into
drive and, without accelerating, let it roll forward. The victim
began moving backward, but Torres’s vehicle hit the top of her
legs several times. Torres then told the victim that “[she was]
going to fuckin’ die tonight.”
¶7 	The victim repeatedly yelled at Torres to return her keys.
Instead of complying, Torres slowly accelerated his vehicle,
hitting the victim and causing her to fall backward. The victim
testified that Torres’s vehicle rolled over her until its front
bumper was positioned just below her chest. At trial, Torres
argued that it would have been physically impossible for his
vehicle to roll over the victim in the manner that she described
without causing significant injury because the vehicle, which
was equipped with a customized air suspension system, was
lowered and sat a mere seven-and-a-half inches off the ground.
¶8 	When the victim stood up, she was “hysterical,” yelling at
Torres to return her keys and let her leave. However, Torres
accelerated and hit the victim again, sending her onto the hood
of his vehicle. After the victim rolled off hood and landed on the
ground, Torres said, “Fuck you bitch,” threw her keys to her,
and drove off. At trial, Torres’s sister testified that she had
looked through her bedroom window and had seen the couple
arguing face-to-face. And, according to his sister, when the
victim asked for her keys, Torres threw them into the air, got
into his car, and drove off.
¶9 	The victim contacted police later that afternoon to report
the altercation. During the 911 call, the victim told the dispatcher
that Torres hit her with his vehicle, but she did not say that the
vehicle had rolled over her. According to the victim, she “was
just trying to be . . . short and simple” during the 911 call
because she knew that she would go into more detail with an
officer when she made a full report.
¶10 	That same day, the victim met with an officer, who
interviewed her and took photos of her injuries: bruising to both

State v. Torres
20160879-CA 	4 	2018 UT App 113
legs and her left eye. Ten hours after that initial interview, the
officer drafted a report, which indicated that the victim said that
she had been standing behind Torres’s vehicle, not in front of it.
This report differed from the victim’s statement to the 911
dispatcher. It also differed from a written statement that she
filled out several days after the altercation in which she reported
that she had been standing in front of Torres’s vehicle.
¶11 	Approximately one week later, Torres and the victim
exchanged 	a 	series 	of 	Facebook 	instant 	messages. 	In 	those
messages, Torres said that he was “really sorry,” that the way he
treated the victim was “uncalled for,” and that he wanted to turn
himself 	in. 	In 	addition 	to 	expressing 	remorse 	about 	the
altercation, in several of the messages, Torres acknowledged that
he had previously abused the victim. Specifically, the messages
included statements, such as “I beat you every day . . . I’m such
a[n] abusive person,” “all I do is beat u,” and “sorry for all the
hurt and abuse.” The district court admitted all of the messages
at trial without objection from Torres’s counsel.
¶12 	A 	jury 	convicted 	Torres 	of 	one 	count 	of 	aggravated
assault, a third degree felony, see Utah Code Ann. § 76-5-103(1)
(LexisNexis 	2017), 	and 	one 	count 	of 	assault, 	a 	class 	A
misdemeanor, see id. § 76-5-102. Prior to jury deliberation, Torres
did not move for a directed verdict or otherwise challenge the
sufficiency 	of 	the 	evidence 	supporting 	his 	conviction 	for
aggravated assault. Torres timely appeals, asking this court to
reverse his conviction on Count 1 and remand for a new trial.
ISSUES AND STANDARD OF REVIEW
¶13 	Torres raises two issues on appeal. First, he contends that
“the State presented insufficient evidence to establish beyond a
reasonable doubt that [he] assaulted [the victim] with his car.”
Recognizing that this claim is unpreserved, Torres asks that we
review 	this 	issue 	under 	the 	ineffective-assistance-of-counsel
exception 	to 	the 	preservation 	requirement. 	Second, 	Torres

State v. Torres
20160879-CA 	5 	2018 UT App 113
contends 	that 	“[c]ounsel 	rendered 	ineffective 	assistance 	of
counsel 	by 	failing 	to 	object 	to 	the 	admission 	of 	Facebook
messages, 	which 	contained 	inadmissible 	and 	prejudicial
character evidence.” “We review claims of ineffective assistance
of counsel raised for the first time on appeal for correctness.”
State v. Jaramillo, 2016 UT App 70, ¶ 24, 372 P.3d 34 (quotation
simplified).
ANALYSIS
¶14 	To prevail on an ineffective assistance of counsel claim, a
defendant must establish both that “counsel’s performance was
deficient” and that “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Because failure to establish either prong of the test is fatal to an
ineffective assistance of counsel claim, we are free to address [a
defendant’s] claims under either prong.” Honie v. State, 2014 UT
19, ¶ 31, 342 P.3d 182. In this case, we review the first issue
under the deficiency prong and the second issue under the
prejudice prong. We ultimately conclude that Torres did not
receive ineffective assistance of counsel.
I. Sufficiency of the Evidence
¶15 	Torres 	first 	contends 	that 	trial 	counsel 	rendered
constitutionally ineffective assistance by failing to move for a
directed verdict or otherwise challenge the sufficiency of the
evidence supporting his aggravated assault charge. In particular,
Torres argues that “the State offered only inconclusive and
inherently improbable testimony that, when viewed in the light
most favorable to the State, did not establish that he assaulted
[the victim] with [his vehicle].” Because we conclude a motion
for directed verdict based on the sufficiency of the evidence
would 	have 	been 	futile, 	counsel’s 	performance 	was 	not
objectively deficient. See State v. Millerberg, 2018 UT App 32, ¶ 12,
414 P.3d 1106 (per curiam) (concluding that the defendant could
not 	establish 	ineffective 	assistance 	where 	“[a] 	motion 	for

State v. Torres
20160879-CA 	6 	2018 UT App 113
directed verdict would have been futile given the evidence
presented”), petition for cert. filed, Apr. 26, 2018 (No. 20180314).
¶16 	In evaluating counsel’s performance under Strickland’s
deficiency prong, we “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland v. Washington, 466 U.S. 668,
689 	(1984). 	To 	rebut 	that 	presumption, 	a 	defendant 	“must
identify specific acts or omissions demonstrating that counsel’s
representation 	failed 	to 	meet 	an 	objective 	standard 	of
reasonableness.” State v. Montoya, 2004 UT 5, ¶ 24, 84 P.3d 1183
(quotation 	simplified). 	In 	other 	words, 	a 	defendant 	must
establish 	“that 	the 	challenged 	actions 	cannot 	be 	considered
sound strategy under the circumstances.” State v. Calvert, 2017
UT App 212, ¶ 22, 407 P.3d 1098 (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.” Id. (quotation simplified).
¶17 	Here, trial counsel could have reasonably concluded that
a motion for directed verdict would have been futile. “[W]hen
conflicting or disputed evidence is presented at a jury trial, the
jury serves as the exclusive judge of both the credibility of the
witnesses and the weight to be given particular evidence.” State
v. Prater, 2017 UT 13, ¶ 31, 392 P.3d 398 (quotation simplified).
On “a motion for a directed verdict[,] the court is not free to
weigh the evidence and thus invade the province of the jury,
whose prerogative it is to judge the facts.” Montoya, 2004 UT 5,
¶ 32 (quotation simplified). Rather, viewing the evidence in the
light most favorable to the State, the court must “determine
whether the state has produced ‘believable evidence’ on each
element of the crime from which a jury, acting reasonably, could
convict the defendant.” Id. “If there is any evidence, however
slight or circumstantial, which tends to show guilt of the crime
charged,” the court must submit the case to the jury. Id. ¶ 33
(quotation simplified).

State v. Torres
20160879-CA 	7 	2018 UT App 113
¶18 	Torres argues that the allegation that his vehicle rolled
over the victim to her mid-torso formed the basis of the State’s
theory at trial and that the victim’s testimony on this point was
“too 	dubious 	to 	believe.” 	Although 	the 	trial 	court 	“must
ordinarily accept the jury’s determination of witness credibility,
when the witness’s testimony is inherently improbable, the court
may choose to disregard it.” State v. Robbins, 2009 UT 23, ¶ 16,
210 P.3d 288. This limited exception applies only when “(1) there
are material inconsistencies in the testimony and (2) there is no
other circumstantial or direct evidence of the defendant’s guilt.”
Id. ¶ 19. Thus, a trial court may disregard a witness’s testimony
and direct the verdict in favor of a defendant only if the evidence
“is sufficiently inconclusive or inherently improbable [such] that
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime of which he or she was
convicted.” State v. Yazzie, 2017 UT App 138, ¶ 9, 402 P.3d 165
(quotation 	simplified); 	see 	also 	Robbins, 	2009 	UT 	23, 	¶ 	18
(explaining 	that 	a 	witness’s 	testimony 	is 	“inherently
improbable” if it includes “circumstances [that are] incredibly
dubious and, as such, apparently false”).
¶19 	We 	need 	not 	determine 	whether 	it 	was 	“inherently
improbable” for Torres’s vehicle to roll over the victim. Even if
we were to disregard the victim’s testimony on this point as
inherently improbable, there is sufficient independent evidence
to sustain Torres’s conviction. To convict Torres of aggravated
assault, the jury had to find beyond a reasonable doubt that
Torres intentionally, knowingly, or recklessly used a dangerous
weapon1 to engage in conduct that qualified as one of the
following:
1. Torres concedes that a car may be considered a “dangerous
weapon” under Utah Code section 76-1-601. See Mackin v. State,
2016 UT 47, ¶¶ 29–31, 387 P.3d 986.

State v. Torres
20160879-CA 	8 	2018 UT App 113
i. 	an attempt, with unlawful force or violence, to
do bodily injury to another;
ii. 	a threat, accompanied by a show of immediate
force or violence, to do bodily injury to another;
or
iii. 	an 	act, 	committed 	with 	unlawful 	force 	or
violence, that causes bodily injury to another or
creates a substantial risk of bodily injury to
another.
Utah Code Ann. § 76-5-103(1)(a) (LexisNexis 2017); see also id.
§ 76-2-102 (stating that “when the definition of the offense does
not specify a culpable mental state and the offense does not
involve strict liability, intent, knowledge, or recklessness shall
suffice to establish criminal responsibility”).
¶20 	Even setting aside the victim’s testimony that the vehicle
knocked her down and rolled over her to mid-torso, Torres’s
other acts were sufficient to establish the elements of aggravated
assault. Torres initially rolled his vehicle into the victim’s legs
several times, warning her that “[she was] going to fuckin’ die
tonight.” 	This 	act, 	standing 	alone, 	constitutes 	“a 	threat,
accompanied by a show of immediate force or violence,” to do
bodily injury to the victim using the vehicle as a dangerous
weapon. 	See 	id. 	§ 	76-5-103(1)(a)(ii). 	In 	addition, 	the 	victim
testified that after the vehicle rolled over her and she regained
her footing, Torres accelerated into her a second time, sending
her onto the hood of the vehicle until she rolled onto the ground.
To 	corroborate 	the 	victim’s 	testimony, 	the 	State 	presented
photographic evidence to the jury, depicting the victim’s bruised
legs. A jury could have reasonably found that this separate act
constituted either an attempt to do bodily harm with the vehicle
or a completed act. See id. § 76-5-103(1)(a)(i), (iii). Because “[t]he
jury is free to believe or disbelieve all or part of any witness’s
testimony,” State v. Hayes, 860 P.2d 968, 972 (Utah Ct. App. 1993),
it could have believed the victim’s testimony on these points

State v. Torres
20160879-CA 	9 	2018 UT App 113
while disregarding the allegation that the vehicle had rolled over
her body to mid-torso.
¶21 	In addition, “[t]he existence of any additional evidence
supporting the verdict prevents the judge from reconsidering the
witness’s credibility.” Robbins, 2009 UT 23, ¶ 19. Contrary to
Torres’s assertion that “there is no other circumstantial or direct
evidence of [his] guilt,” the victim’s account was corroborated by
other evidence, including the messages where Torres apologized
for “the way I was with you” and offered to turn himself into
authorities, the testimony from Torres’s sister that Torres and the
victim were engaged in an altercation outside by their vehicles
on the night in question, and the photographs of the victim’s
bruised legs. This additional evidence not only supported the
verdict but also prevented the judge from reevaluating the
victim’s 	credibility. 	See 	id. 	And 	although 	Torres’s 	sister’s
testimony 	partially 	contradicted 	the 	victim’s, 	“when 	the
evidence presented is conflicting or disputed, the jury serves as
the exclusive judge of both the credibility of witnesses and the
weight to be given particular evidence.” State v. Johnson, 2015 UT
App 312, ¶ 10, 365 P.3d 730 (quotation simplified). Accordingly,
the existence of conflicting evidence alone cannot justify taking
the case away from the jury. See State v. Garcia-Mejia, 2017 UT
App 129, ¶ 19, 402 P.3d 82 (explaining that “the existence of
contradictory evidence or of conflicting inferences does not
warrant disturbing the jury’s verdict” (quotation simplified)).
¶22 	Torres 	contends 	that 	the 	remainder 	of 	the 	victim’s
testimony contained “‘material inconsistencies’ rendering it too
inconclusive to support a conviction beyond a reasonable doubt
that he committed any act, attempt, or threat with [his vehicle] to
do bodily injury.” (Quoting State v. Lomu, 2014 UT App 41, ¶ 14,
321 	P.3d 	243.) 	Torres 	has 	not 	identified 	any 	material
inconsistencies that would justify a directed verdict. A jury
could have reasonably concluded that the differences between
the victim’s prior statements and her testimony at trial were due
to the victim previously providing incomplete statements, the

State v. Torres
20160879-CA 	10 	2018 UT App 113
officer 	misreporting 	her 	statement, 	or 	a 	simple
misunderstanding.2
¶23 	Even assuming that the victim’s prior statements were
inconsistent with her trial testimony, inconsistent statements
alone are insufficient for a trial court to reassess a witness’s
credibility 	because 	they 	“do 	not 	render 	[her] 	testimony
‘apparently false.’” See Prater, 2017 UT 13, ¶¶ 38–39. In Robbins,
for example, our supreme court held that a child’s testimony
about alleged sexual abuse “was so inherently improbable that
the trial court had discretion to disregard it when considering
whether sufficient evidence supported [Robbins’s] conviction.”
2009 UT 23, ¶ 13. But the multiple inconsistencies in the child’s
testimony, 	standing 	alone, 	were 	insufficient 	to 	invoke 	the
inherent improbability exception. See id. ¶ 22. Instead, “[i]t was
the inconsistencies in the child’s testimony plus the patently false
statements the child made plus the lack of any corroboration that
allowed 	[the] 	court 	to 	conclude 	that 	insufficient 	evidence
supported 	Robbins’s 	conviction.” 	Prater, 	2017 	UT 	13, 	¶ 	38
(explaining the holding in Robbins). Unlike Robbins, the victim’s
2. Torres also claims that (1) the victim had an incentive to lie to
obtain housing based on her status as a domestic abuse victim
and (2) she admitted to previously lying to him about being
pregnant. Evidence suggesting that a witness is biased or has a
character for untruthfulness is insufficient to justify taking the
case from the jury. It was squarely within the province of the
jury to weigh this evidence in assessing the victim’s credibility.
See State v. Crespo, 2017 UT App 219, ¶¶ 32–33, 409 P.3d 99
(affirming denial of motion for a directed verdict despite claims
that codefendant had previously lied to police and had a motive
to fabricate testimony in exchange for a plea deal because it is
the “exclusive function of the jury to weigh the evidence and to
determine 	the 	credibility 	of 	the 	witnesses” 	(quotation
simplified)).

State v. Torres
20160879-CA 	11 	2018 UT App 113
testimony here was not the only evidence that Torres had
committed aggravated assault.
¶24 	Because 	there 	was 	sufficient 	evidence 	from 	which 	a
reasonable 	jury 	could 	have 	found 	Torres 	guilty 	beyond 	a
reasonable doubt, a motion for directed verdict would have been
futile. Therefore, trial counsel did not perform deficiently in
failing to move for a directed verdict.
II. Character Evidence
¶25 	Torres contends that trial counsel “rendered ineffective
assistance of counsel by failing to object to the admission of
Facebook 	messages, 	which 	contained 	inadmissible 	and
prejudicial 	character 	evidence.” 	While 	Torres 	concedes 	that
“some components of the messages have relevance” because
they 	“describ[e] 	the 	incident 	at 	issue,” 	he 	maintains 	that
“[c]ounsel should have objected to [the messages’] admissibility
as a whole and should have sought to redact the improper
components that . . . describe prior acts of violence.” Specifically,
in some messages, Torres acknowledged that he “abuse[s]” the
victim and that he is “an abusive person.” He also stated, “[A]ll I
do is beat u,” “I beat you every day,” and “sorry for all the hurt
and abuse. At least I can’t beat u no more.” In response, the
victim said, “U do this every time you beat me up.” Torres
contends that these “messages were prejudicial . . . because they
instructed the jury to view the incident in the context of a
broader 	violent 	history 	between 	[the 	victim] 	and 	Torres,
prompting the jury to be more inclined to believe [the victim’s]
allegations at trial.”
¶26 	As previously discussed, supra ¶ 14, because failure to
establish 	either 	prong 	is 	fatal 	to 	a 	defendant’s 	ineffective
assistance of counsel claim, “[w]e may choose not to consider the
adequacy of counsel’s performance if we determine that any
claimed error was not harmful.” State v. Dunn, 850 P.2d 1201,
1226 (Utah 1993). To establish that an error was harmful, “[a]
defendant must show that there is a reasonable probability that,

State v. Torres
20160879-CA 	12 	2018 UT App 113
but 	for 	counsel’s 	unprofessional 	errors, 	the 	result 	of 	the
proceeding would have been different.” Strickland v. Washington,
466 	U.S. 	668, 	694 	(1984). 	“A 	reasonable 	probability 	is 	a
probability sufficient to undermine confidence in the outcome.”
Id. Here, Torres has not established that there is a reasonable
probability 	that 	the 	jury 	would 	have 	acquitted 	him 	of
aggravated assault had trial counsel objected to the admission of
the messages.
¶27 	The Utah Supreme Court has recognized that “evidence
of multiple acts of similar or identical abuse is unlikely to
prejudice a jury.” State v. Reed, 2000 UT 68, ¶ 31, 8 P.3d 1025. In
Reed, the defendant, who had been charged with aggravated
sexual assault, argued that Utah statutory law entitled him to a
bifurcated trial in which the State had to prove the underlying
offense before evidence of the aggravating offenses could be
presented to the jury. Id. ¶ 20. In determining whether evidence
of the aggravating offenses was admissible, the court weighed
the probative value of the evidence against the potential for
unfair prejudice. Id. ¶ 29; see also Utah R. Evid. 403. The court
concluded 	that 	the 	evidence 	was 	not 	unduly 	prejudicial,
reasoning that the offenses “were essentially interchangeable,
were of the same nature and character as the primary offense,
and were carried out on the same victim.” Reed, 2000 UT 68, ¶ 31.
Such evidence does not pose the same risk that “may result from
introduction of prior criminal acts committed against a number
of unrelated victims.” Id.
¶28 	The same rationale can be extended to this case. Here,
Torres challenges the admission of several messages in which he
admits to previously abusing the victim. Even if defense counsel
should 	have 	moved 	to 	redact 	those 	admissions, 	the 	broad
statements that Torres had abused the same victim in the past
amounted to “evidence of multiple acts of similar or identical
abuse” that was unlikely to prejudice a jury. See id. Significantly,
the messages were not the only evidence before the jury that
painted 	Torres 	as 	an 	abusive 	partner. 	The 	State 	presented
indisputably admissible evidence in support of Count 2, the

State v. Torres
20160879-CA 	13 	2018 UT App 113
misdemeanor assault count, that Torres hit the victim several
times while the couple argued inside the apartment. At trial,
Torres 	did 	not 	dispute 	these 	allegations 	nor 	does 	he 	seek
reversal 	of 	the 	assault 	conviction 	on 	appeal.3 	Because 	the
admissions of past abusive behavior toward the victim were of
“the same nature and character” as the undisputed conduct
giving rise to Count 2, the risk of undue prejudice was greatly
reduced.
¶29 	The 	central 	issue 	at 	trial 	was 	whether 	Torres 	had
assaulted 	the 	victim 	with 	his 	vehicle, 	thereby 	committing
aggravated assault with a dangerous weapon as charged in
Count 1. None of the messages suggested that Torres had
previously assaulted the victim with a vehicle or any other
dangerous weapon. As a result, the messages had no potential to
bolster the victim’s credibility with respect to the disputed
issues. Because the messages did not suggest prior abuse that
was 	more 	serious 	than 	the 	abuse 	Torres 	acknowledged
committing, he has failed to establish a reasonable probability
that the jury would have acquitted had the messages been
redacted.
CONCLUSION
¶30 	We conclude that it was sound trial strategy for counsel
not to challenge the sufficiency of the evidence in this case
because such a challenge would have been futile. Additionally,
3. In closing argument, defense counsel explained that Torres
was not contesting that he
threw a phone at her, punched her in the back of
the head and then he slapped her in the face or hit
her in the eye. . . . That is horrible that he was
abusive to her, that is horrible. We are not here to
justify that. That would be Count 2. We are here
talking about Count 1.

State v. Torres
20160879-CA 	14 	2018 UT App 113
there is no reasonable probability that the jury would have
acquitted Torres of aggravated assault had the messages been
redacted because the prior acts of assault described 	in the
messages are no more egregious than those charged in the
primary offense and did not bolster the victim’s credibility
regarding the disputed issues.
¶31 	Affirmed.