State v. Durfee

2026 UT App 42

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
FREDRICK DEE DURFEE,
Appellant.

Opinion
No. 20230410-CA
Filed March 26, 2026

Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 201900069

Staci Visser and Dain Smoland,
Attorneys for Appellant
Derek E. Brown and Karen A. Klucznik,
Attorneys for Appellee

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

HARRIS, Judge:

¶1 A jury convicted Fredrick Dee Durfee of object rape. He
appeals his conviction, asserting that his trial counsel rendered
constitutionally ineffective assistance and that the trial court
made an improper evidentiary ruling regarding the scope of the
State’s cross-examination of a potential witness. We reject
Durfee’s arguments and affirm his conviction.
State v. Durfee

BACKGROUND 1

¶2 On the day after Christmas, Durfee invited Eliza 2 over to
his house and offered to make brunch for her. Durfee had
originally met Eliza through an online dating app, and prior to
this occasion, the two had seen each other “two, possibly three
other times.” During those prior interactions, Durfee and Eliza
never had sexual intercourse, although they had “attempted it
once” before. On this occasion, Eliza accepted Durfee’s invitation
and went over to his house, which he shared with a roommate
(Roommate).

¶3 Although Eliza had not initially gone to Durfee’s house
“for the purpose of consensual sexual activity,” that expectation
changed a few hours after she arrived. At first, Durfee and Eliza
just lay “in . . . bed and chatted.” As the conversation evolved, the
two of them discussed “what would and wouldn’t be okay” in
terms of anticipated sexual activity. During that conversation,
Eliza told Durfee that she “enjoy[ed] rough sex,” but with
“limitations.” She “made it very clear that no marks were to be
put on [her] body,” and Durfee agreed. Eliza and Durfee also
discussed “fisting,” 3 but she told him she “wasn’t ready for that”
and that it was something she “would have to build up to.”

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.

3. As discussed at trial in this case, “fisting” means “putting one’s
entire fist . . . inside another’s body orifice.”

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State v. Durfee

¶4 Durfee and Eliza then began having consensual sex, an
encounter that lasted “off and on over a period of two or three
hours.” All parties to this appeal agree that, for the first hours of
activity, the sex was “rough” but consensual.

¶5 But later, perspectives on the encounter began to diverge,
especially regarding one issue. Durfee was manually penetrating
Eliza with his fingers, while he “knelt” “at the foot of his bed.” In
this position, Eliza could not see exactly what Durfee was doing,
and for a while it “felt really good” to her. Suddenly, however, it
became excruciatingly painful for Eliza, who felt like her “uterus
popped” and Durfee “had put his whole hand in [her].” She
recalled that, at this point, she told Durfee, “Oh, you have to stop.
Oh, my gosh that hurts. Stop, you’re killing me.” But Eliza later
testified that, instead of stopping, Durfee said, “Oh, yeah, you
want me to punch you in the pussy?,” to which she responded,
“No, absolutely not. You’re already hurting me.” Despite Eliza’s
withdrawn consent, Durfee “repeatedly punched [her] in the
cervix,” “over and over.” Eliza said that Durfee did this seven
times until she was able to shove him away with her legs.

¶6 After the activity stopped, Durfee initially acted very
concerned for Eliza’s well-being. He “immediately” asked her
what was wrong and if he had done “something that had hurt”
her. Durfee told her that he hadn’t “realize[d] that . . . [she] had
said to stop.” He helped her to shower and clean off because she
had blood running down her legs and “it was not letting up.”
After she had cleaned up, Durfee “talked [her] into . . . lying down
with him,” even though she was still bleeding.

¶7 At some point during the post-sex discussion, however,
Durfee’s demeanor changed and he became angry. As Eliza
recalled it, Durfee began to insist that “the blood had to all be
cleaned up right then.” He handed Eliza a “bottle of Clorox spray
cleaner” and told her to get down “on [her] knees” and “clean [it]
up.” Eliza tried to help with the cleanup, but she felt “weak from

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all of the blood loss.” At some point, Durfee suggested that he
accompany her to the hospital, but he stated that she would have
to drive because he was not able to drive. Eliza, however, was in
no condition to drive, and eventually Roommate took Eliza to the
hospital emergency room.

¶8 After Eliza arrived at the hospital, Durfee sent her a series
of text messages. In the messages, he accused Eliza of lying about
something Roommate had said, and he even told her, “I took
pictures and have a recording. See you in court.” Eventually Eliza
stopped responding, but Durfee continued to send additional
messages that Eliza considered threatening and “nasty.”

¶9 While at the hospital, Eliza was treated for her injuries by
several doctors and nurses. In speaking with the medical
providers, Eliza described the incident—at least initially—as a
“misunderstanding,” explaining that she didn’t think Durfee had
been “able to absorb” her telling him “no.” She was eventually
examined by a sexual assault nurse examiner (Expert), who
documented Eliza’s injuries. Those injuries included many
abrasions, lacerations, and bruises in Eliza’s anogenital area,
including a laceration on her cervix. The medical providers found
it necessary to place two stitches in her cervix to stop the
continued bleeding from that wound.

¶10 During Eliza’s time at the hospital, the police were called,
and they went to interview Durfee. In that interview, Durfee
denied ever using the term “pussy punch.” He claimed that he
“[didn’t] even know what that would be” and that he had “never
fisted anybody” in his life. Durfee also told police that he didn’t
think Eliza had ever withdrawn her consent, explaining, “[T]here
was never anything that she said no [to]. There was never any
time she said no.” He insisted that if Eliza had said no at any time,
he would have complied. And he consistently denied using his
entire fist during the sexual encounter, but he did suggest he
“could have been” using all four of his fingers without his thumb.

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State v. Durfee

¶11 As a result of the incident, the State charged Durfee with—
as relevant here 4—one count of object rape, a first-degree felony.
The case proceeded to trial.

¶12 Shortly before the trial was set to begin, Durfee filed a
motion indicating that he wished to present character evidence
through a “former romantic partner” (Ex-Girlfriend) who could
testify that Durfee was the sort of person who respected his
partner’s wishes during sexual activity. In that motion, Durfee
asked the court to “[s]trictly limit the scope of” the State’s
potential cross-examination of Ex-Girlfriend; in particular, Durfee
was concerned that the State planned to ask Ex-Girlfriend about
an “alleged violation of a protective order” by Durfee. Durfee
asserted that the State’s cross-examination should be limited “to
the trait that is the subject of that witness’s direct examination,”
which Durfee characterized as respect for consent during sexual
activity. He asserted that his decision to call Ex-Girlfriend “ought
not open the door for the State to use the character witness as a
vehicle for impugning separate character traits.”

¶13 On the morning of the first day of trial, the court and the
parties discussed Durfee’s motion. During this discussion,
Durfee’s trial attorney (Counsel) indicated that he intended to
“strictly” ask Ex-Girlfriend whether Durfee “respect[ed] [her]
consent” during sex. The court clarified with Counsel that Ex-
Girlfriend was also “a victim in a protective order violation” case
involving Durfee. After the discussion, the court ruled in favor of
Durfee, ordering that any evidence that Durfee violated a
protective order be excluded, while still allowing Counsel to
present character evidence, through Ex-Girlfriend, that Durfee
“respects the consent of his sexual partner.”

4. In the original charging document, the State also charged
Durfee with two counts of obstructing justice. Those counts were
dismissed at the preliminary hearing.

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State v. Durfee

¶14 Once trial began, the State presented testimony from five
witnesses in its case-in-chief—Eliza, Roommate, two detectives,
and Expert. These witnesses testified in accordance with the facts
recited above.

¶15 In testifying about her examination of Eliza, Expert
described Eliza’s injuries, and she explained those injuries using
various charts and a written report she had created after the
examination. Expert stated that she had conducted “[a]round
500” similar examinations in her career. Then, the prosecutor
engaged in the following colloquy with Expert:

Q: Based on your hundreds of examinations, was
[Eliza’s] injur[y] consistent with the report of
assault and medical history she gave you?

A: Yes, it was. Lacerations of the cervix are rarely
seen. Generally they’re either caused by objects
or possible fingernails, but the skin inside there
is pretty tough and consensual intimacy isn’t
going to cause those types of injuries.

....

Q: Comparing this examination to the hundreds of
other examinations you’ve done, where does it
fall in its severity of injury?

A: Yes. Maybe 50 percent of the exams I have done
have genital injury. Generally there is one or
two injuries. This particular case has a great
deal of injury, probably one in the top five that
I have seen.

....

20230410-CA 6 2026 UT App 42
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Q: [D]o you generally see lacerations from penises
in consensual vaginal sex?

A: There isn’t much research related to injuries
with consensual sex.

Q: Could you talk to us a little bit about the
structure of the penis insofar as thinking about
whether it would cause blunt force trauma?

At this point, Counsel objected and argued that Expert was
testifying outside of her “expertise.” The court overruled this
objection, and Expert answered the question as follows:
“[G]enerally very rarely have I ever seen internal injury where the
patient has described that it was a penis in her vagina.”

¶16 During cross-examination, Expert again stated that
“there’s not a lot of literature on injuries suffered during
consensual sex.” Counsel then asked, “So when you say that the
injuries are consistent with what . . . [Eliza] said, you aren’t able
to exclude the possibility that these injuries are the result of
consensual sex, are you?” In response, Expert said, “Is . . . injury
possible in consensual sex? I’m sure it probably is.”

¶17 On the morning of the next trial day, Counsel wanted to
address additional concerns he had regarding Ex-Girlfriend’s
testimony, which he wished to present that day. Counsel notified
the court that the State had called Ex-Girlfriend the night before
and that Ex-Girlfriend “felt it was a very harassing phone call.” In
response, the State offered to preview the questions it intended to
ask Ex-Girlfriend on cross-examination. In particular, the State
indicated that it planned to ask Ex-Girlfriend whether Durfee had
ever lived with her in her own home, whether she had ever asked
him to leave that home, and whether Durfee had complied with
such requests. The State believed that Ex-Girlfriend, if asked,
would testify that she had once “told [Durfee] to leave, [and] he
refused to.” The State asserted that this line of questioning was

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State v. Durfee

relevant to show that Durfee did not always respect the wishes of
his romantic partner; indeed, the State compared a person’s home
to a person’s body, arguing that a home “is a place like one’s body
where you have the right to say, ‘Leave,’ or, ‘No, I don’t want you
to’” do something. For his part, Counsel argued that this line of
questioning was improper, because in his view the State should
be limited to asking about the specific trait at issue, which Counsel
continued to characterize as respect for consent during sex.
Specifically, Counsel argued that “[b]eing a considerate lover is
not the same trait as whether you’re a good . . . tenant.”

¶18 A discussion ensued, with the court offering its view that
if the defense offered “evidence of a pertinent character trait . . .
by specific instances,” then the State would “get to rebut it with
specific instances.” At one point, the court offered these thoughts:

Seems to me that this is the situation that we’re in: If
the [d]efense under [rules of evidence] 404 and 405
. . . offers pertinent character traits of the
defendant—a specific act; a specific set of
circumstances; . . . specific conduct; can’t limit it to
just sexual stuff—the other side gets to rebut it with
specific conduct; right?

....

But as a general principle, I think that is legally
correct. You do specific instances; they get specific
instances. You bring character up by opinion or
reputation; they get to rebut it by opinion or
reputation.

Counsel seemed to agree with how the court described the
situation, but he wanted additional clarification on the scope of
what the State would be allowed to ask Ex-Girlfriend on cross-
examination. The court reiterated that it would not allow the State
to ask Ex-Girlfriend about the protective order, but it stated that

20230410-CA 8 2026 UT App 42
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it would be inclined to allow the State to ask about requests Ex-
Girlfriend had made to Durfee to leave her house. In the court’s
view, whether Ex-Girlfriend told Durfee “to stay away,” and
whether Durfee complied with that request, were appropriate
subjects for cross-examination and “an appropriate piece of
rebuttal evidence.” Counsel then asked to “do an offer of proof”
of Ex-Girlfriend’s testimony “outside the presence of the jury,”
and the court agreed.

¶19 During the previewed testimony, Ex-Girlfriend stated that
Durfee was “considerate” and that when she was “not in the
mood,” Durfee “did not want to move forward if . . . [she] wasn’t
up for it.” And she also stated that at one point she asked Durfee
to leave her home and he refused to comply.

¶20 After the previewed testimony, the court finalized its
ruling allowing the State to rebut Ex-Girlfriend’s character
testimony with its own character evidence. The court ruled “that
if [Counsel] offer[s] specific instances of [Durfee’s] character,”
including evidence of “situations where he is told no” and then
“follows that” command, then the State would “get to put on a
specific instance of conduct outside of the sexual context where
he was told no . . . and didn’t comply with it.” In light of the fact
that the court ruled that the State would be permitted to ask Ex-
Girlfriend about whether she had asked Durfee to leave her
house, Counsel and Durfee made the decision not to call Ex-
Girlfriend to testify in front of the jury.

¶21 At the conclusion of the trial, and after deliberation, the
jury found Durfee guilty as charged. The trial court later
sentenced Durfee to prison.

ISSUES AND STANDARDS OF REVIEW

¶22 Durfee now appeals his conviction, and he asks us to
consider two issues. First, he asserts that Counsel rendered

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State v. Durfee

ineffective assistance. “When an ineffective assistance claim is
raised for the first time on appeal, it presents a question of law.”
State v. Rivera, 2022 UT App 44, ¶ 21, 509 P.3d 257.

¶23 Second, Durfee challenges the trial court’s evidentiary
ruling regarding the allowable scope of the State’s cross-
examination of Ex-Girlfriend. “We review a trial court’s
evidentiary rulings for an abuse of discretion and its
interpretation of evidentiary rules for correctness.” Rothwell v.
Rothwell, 2023 UT App 50, ¶ 34, 531 P.3d 225 (cleaned up).

ANALYSIS

I. Ineffective Assistance Regarding Expert’s Testimony

¶24 First, Durfee asserts that Counsel rendered constitutionally
ineffective assistance. To succeed on such a claim, Durfee must
make a two-part showing: that (1) Counsel’s performance was
deficient in that it “fell below an objective standard of
reasonableness” and (2) “there is a reasonable probability that, but
for [C]ounsel’s unprofessional errors, the result of the proceeding
would have been different.” See Strickland v. Washington, 466 U.S.
668, 687–88, 694 (1984); accord State v. Scott, 2020 UT 13, ¶ 28, 462
P.3d 350; State v. Ray, 2020 UT 12, ¶ 24, 469 P.3d 871. Failure to
prove either component is fatal to the claim; “[u]nless a defendant
makes both showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process that renders
the result unreliable.” Strickland, 466 U.S. at 687. Thus, “if either is
lacking, the claim fails and this court need not address the other.”
State v. Kufrin, 2024 UT App 86, ¶ 55, 551 P.3d 416 (cleaned up).

¶25 The first part of this test requires Durfee to show that
Counsel’s performance “fell below an objective standard of
reasonableness.” Scott, 2020 UT 13, ¶ 31 (cleaned up). In
evaluating an attorney’s performance, courts often examine
whether the attorney had a strategic reason for taking the

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State v. Durfee

challenged action. See id. ¶ 35. And while “the ultimate question
is not whether there was a possible strategic reason for counsel’s
conduct, but instead whether that conduct was objectively
reasonable,” id., “[i]f it appears counsel’s actions could have been
intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance,” Ray, 2020
UT 12, ¶ 34.

¶26 In this case, Durfee asserts that Counsel rendered
ineffective assistance by not objecting to one discrete part of
Expert’s testimony. Specifically, Durfee takes issue with the way
Counsel handled the portion of Expert’s direct examination
testimony in which the prosecutor asked whether Eliza’s injuries
were “consistent with the report of assault and medical history”
Eliza provided, and Expert responded with these three sentences:

Yes, it was. Lacerations of the cervix are rarely seen.
Generally they’re either caused by objects or possibly
fingernails, but the skin inside there is pretty tough
and consensual intimacy isn’t going to cause those types
of injuries.

(Emphasis added.) Durfee characterizes this testimony as Expert
offering an opinion that Eliza’s specific injuries “could not have
resulted from consensual sex.” And based on his characterization
of Expert’s testimony, he asserts that the testimony contained an
impermissible legal conclusion, amounted to an opinion on the
ultimate issue in this case, and—in tandem with Expert’s
statement that Eliza’s injuries were “in the top five” out of the
hundreds she had seen—was “anecdotal statistical testimony.”

¶27 Durfee’s argument depends entirely on the accuracy of his
interpretation of the challenged portion of Expert’s testimony. But
that interpretation—while perhaps not unreasonable—is hardly
the only reasonable one. Indeed, another entirely reasonable
interpretation is that Expert made no statement at all about

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State v. Durfee

whether Eliza’s specific injuries were caused by non-consensual
conduct but, instead, simply offered background testimony about
whether “[l]acerations of the cervix” are “[g]enerally” caused by
“consensual intimacy.” (Emphasis added.) Expert began the
sentence in question with the word “generally,” which quite
naturally leads to the conclusion that Expert was speaking
generally about such injuries and was not intending to opine that
Eliza’s specific injuries were or were not caused by non-
consensual actions. After all, the question to which Expert was
responding was not whether Eliza’s injuries had conclusively
been caused by non-consensual actions; rather, the prosecutor
had asked Expert whether Eliza’s injuries were “consistent with the
report of assault and medical history” Eliza provided. (Emphasis
added.) Expert was not being asked to offer an opinion on the
conclusive cause of Eliza’s specific injuries, and Counsel could
have reasonably interpreted Expert’s testimony as offering only
broad thoughts about these sorts of injuries.

¶28 So interpreted, Expert’s challenged statement is entirely
proper. Questions that are “phrased in terms of whether various
symptoms were ‘consistent with’ sexual abuse” are “proper”
questions for experts and do not “inappropriately suggest[] to the
jury what result to reach.” State v. Burnett, 2018 UT App 80, ¶ 29,
427 P.3d 288 (cleaned up). And qualified expert witnesses may
offer testimony about the potential causes of various types of
injuries. See Patey v. Lainhart, 1999 UT 31, ¶ 22, 977 P.2d 1193 (“An
expert opinion about the cause of an injury is admissible where
the subject matter is not one of common observation or
knowledge.” (cleaned up)). Thus, adequately supported
statements from a properly qualified expert witness that certain
types of injuries are “consistent with” reports of nonconsensual
contact and are “generally” not caused by “consensual intimacy”
are proper. See id. ¶ 26 (“We held long ago that an expert may
testify to ‘what did’ cause, as well as to ‘what might’ or ‘what
could’ have caused, the damages claimed.” (cleaned up)).

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State v. Durfee

¶29 Thus, Counsel could have reasonably believed that there
was nothing objectionable about the statement Durfee now
challenges as improper. And he could have then reasonably
determined not to object to it and, instead, chosen to clarify the
statement on cross-examination. See State v. Griffin, 2015 UT 18,
¶ 42, 441 P.3d 1166 (“Utilizing cross-examination to expose
defects in an expert’s presentation can be a sound trial strategy.”);
see also State v. Christensen, 2016 UT App 225, ¶ 21, 387 P.3d 588
(concluding that an attorney had not performed deficiently when
the attorney “could have reasonably decided to refrain from
objecting to [a witness’s] testimony so as to discredit it during
cross-examination” instead). And here, Counsel did just that:
during cross-examination of Expert, Counsel asked, “You aren’t
able to exclude the possibility that these injuries are the result of
consensual sex, are you?” And Expert responded, “Is . . . injury
possible in consensual sex? I’m sure it probably is.” This strategy
enabled Counsel to clarify with Expert that Eliza’s injuries could
have potentially occurred from consensual sexual activity,
without also drawing further attention to Expert’s testimony that
these sorts of injuries “generally” do not occur from consensual
sexual encounters.

¶30 In sum, it was reasonable for Counsel to have interpreted
Expert’s testimony as proper, and it was appropriate to address
such testimony during cross-examination instead of objecting to
it during direct examination. Accordingly, Counsel did not render
deficient performance, and Durfee’s ineffective assistance claim
therefore fails.

II. Character Evidence

¶31 Next, Durfee challenges the court’s evidentiary ruling in
which it indicated that if Ex-Girlfriend testified about Durfee’s
character for respecting sexual partners’ wishes, it would allow
the State to ask her about an incident in which Durfee apparently
did not leave Ex-Girlfriend’s house upon request. We see no

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reversible error in the court’s ultimate ruling, but we take the
opportunity to provide some guidance regarding the proper
interpretation of the relevant rules of evidence.

¶32 Our rules of evidence place strict limitations on the
introduction of character evidence into a trial. As a general matter,
“[e]vidence of a person’s character or character trait is not
admissible to prove that on a particular occasion the person acted
in conformity with the character or trait.” Utah R. Evid. 404(a)(1).
But there are exceptions to this general rule, see State v. Thompson,
2014 UT App 14, ¶ 26, 318 P.3d 1221, and one of them involves
situations in which defendants themselves wish to introduce
evidence of their own character. In particular, “a defendant may
offer evidence of the defendant’s pertinent trait, and if the
evidence is admitted, the prosecutor may offer evidence to rebut
it.” Utah R. Evid. 404(a)(2)(A).

¶33 When defendants elect to avail themselves of this option,
rule 405 supplies the framework for how the character evidence is
to be presented at trial. See State v. White, 2016 UT App 241, ¶ 27,
391 P.3d 311 (“Courts use rule 404 to determine when character
evidence is admissible and rule 405 to determine how that
evidence is to be admitted.”); see also Thompson, 2014 UT App 14,
¶ 26 (“If character evidence is admissible under one of the
exceptions” in rule 404(a), then “the methods of proving [such]
character are limited by rule[] 405.”). Thus, in several ways, rule
405 “limits the permissible methods of proof” of character. United
States v. Yazzie, 188 F.3d 1178, 1189 (10th Cir. 1999) (applying rule
405 of the Federal Rules of Evidence). 5

5. Rule 405 of the Utah Rules of Evidence follows rule 405 of the
Federal Rules of Evidence “verbatim.” See Utah R. Evid. 405
advisory committee note. And because “we generally seek to
achieve uniformity” between identical rules, we “look to the
(continued…)

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State v. Durfee

¶34 Under rule 405, the defendant who is offering the character
evidence may present that evidence in one of two ways: “by
testimony about the person’s reputation or by testimony in the
form of an opinion.” Utah R. Evid. 405(a). Reputation evidence
and opinion evidence are related, but they are not the same thing,
and they present different options for a proponent of character
evidence. As we recently stated, reputation evidence “speaks to
what others think,” while opinion testimony “speaks to what this
witness thinks.” State v. Francis, 2025 UT App 104, ¶ 88, 575 P.3d
1197. A defendant may opt to present reputation evidence from a
witness who has “such acquaintance with the defendant, the
community in which [the defendant] has lived and the circles in
which [the defendant] has moved, as to speak with authority of
the terms in which generally [the defendant] is regarded.”
Michelson v. United States, 335 U.S. 469, 478 (1948). Alternatively, a
defendant may opt to present opinion testimony from a witness
who might not be qualified to speak to the defendant’s general
reputation in the community but who “is sufficiently familiar
with the person characterized so that the witness may form an
opinion that will be helpful to the trier of fact.” R. Collin
Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence 273
(2021–22 ed.). Either of these options is open to defendants who
wish to present evidence of their own character.

¶35 But it is worth noting that those are the only two options,
and that each of these options, properly exercised, necessarily
involves only a rather brief presentation on the part of the
proponent of the evidence. A reputation witness may testify that
the defendant is well-known in the community for a particular
character trait. An opinion witness may testify that, in her
opinion, the defendant possesses a particular character trait. But

interpretations of the federal rules by the federal courts to aid in
interpreting the Utah rules.” State v. Johnson, 2022 UT 14, ¶ 22, 508
P.3d 100 (cleaned up).

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State v. Durfee

unless rule 405(b) applies—and it doesn’t apply here 6—neither
reputation nor opinion witnesses may elaborate on their
testimony by offering evidence, during direct examination, about
specific instances of the defendant’s conduct. See State v. Leber,
2009 UT 59, ¶ 22, 216 P.3d 964 (“[R]eputation and opinion
witnesses may not be asked about specific instances of conduct on
direct examination under rule 405(a).”).

¶36 In the rule 405(a) context, it is only on cross-examination of
the reputation or opinion witness that specific instances of the
defendant’s conduct may be inquired about. See Utah R. Evid.
405(a) (“On cross-examination of the character witness, the court
may allow an inquiry into relevant specific instances of the
person’s conduct.”). But even here, the inquiry must stop at
simple questioning of the witness; the cross-examiner may not
present extrinsic evidence of specific instances of the defendant’s
conduct. See State v. Lenaburg, 781 P.2d 432, 437 (Utah 1989)
(stating that, when defendants present evidence of their own
character, “[t]he prosecution can inquire as to specific instances of
conduct on cross-examination . . . , but neither rule 405 nor rule
608 permits the prosecution to call witnesses in rebuttal to testify
as to alleged specific instances of conduct of a defendant”),
abrogated on other grounds by State v. Doporto, 935 P.2d 484 (Utah
1997); see also United States v. Hazelwood, 979 F.3d 398, 410 (6th Cir.
2020) (“A party may only inquire about specific instances of the
person’s conduct, without introducing extrinsic evidence of that
conduct.” (cleaned up)); United States v. Benedetto, 571 F.2d 1246,
1250 (2d Cir. 1978) (“While a character witness may be asked on
cross-examination about specific instances of conduct, such acts
may not be proved by extrinsic evidence . . . .” (cleaned up)).

6. Rule 405(b) states that, “[w]hen a person’s character or character
trait is an essential element of a charge, claim, or defense, the
character or trait may also be proved by relevant specific instances
of the person’s conduct.”

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State v. Durfee

¶37 Thus, the trial court was not entirely correct when it stated
that, if Durfee presented evidence of his own “pertinent character
traits” through evidence of specific conduct, then the State would
get to rebut that testimony through evidence of specific conduct.
The court correctly noted that the State would get to cross-
examine Durfee’s character witness by inquiring about specific
instances of Durfee’s conduct. But the court was off-base when it
indicated that Durfee, on direct examination of his character
witness, would be allowed to offer evidence of specific instances
of his own conduct. In that situation, Durfee could only offer
evidence of his general reputation in the community or the
particular witness’s opinion about his character.

¶38 But despite this inaccuracy, we discern no error or abuse of
discretion in the trial court’s ultimate ruling. The crux of the
matter is whether the court erred in determining that, in cross-
examining Durfee’s character witness—Ex-Girlfriend—the State
would be permitted to ask her about one specific instance of
Durfee’s conduct: an occasion in which he apparently refused to
leave her house upon being asked to do so. And that question
turns on whether the instance in question—Durfee’s refusal to
accede to the request to leave the house—is a relevant specific
instance of Durfee’s conduct. See Utah R. Evid. 405(a) (stating that,
on cross-examination, the other party may ask about “relevant
specific instances of the person’s conduct” (emphasis added)).

¶39 In making this assessment, we are guided by the definition
of relevance provided in our related rules of evidence, namely,
that evidence is “relevant” if it “has any tendency to make a fact
more or less probable than it would be without the evidence” and
“the fact is of consequence in determining the action.” See id.
R. 401. “The bar for relevance is very low, and even evidence with
the slightest probative value is relevant.” State v. Blackwing, 2025
UT 60, ¶ 36, 582 P.3d 829 (cleaned up). And to meet that low bar,
“evidence need not directly prove or disprove the fact of
consequence.” Id. ¶ 37. Indeed, “only a logical connection

20230410-CA 17 2026 UT App 42
State v. Durfee

between the evidence and the fact of consequence is required, and
that connection to an element need not be direct, so long as it
exists.” Id. (cleaned up).

¶40 In this case, the trial court did not exceed its discretion by
determining that evidence that Durfee refused to leave Ex-
Girlfriend’s house upon request would have been relevant to
assessing the credibility and weight of Ex-Girlfriend’s proffered
testimony that, in her opinion, Durfee was “considerate” and was
the sort of person who respected his sexual partner’s wishes
during intimacy. In our view, a factfinder could reasonably
conclude that because Durfee refused to leave Ex-Girlfriend’s
house on one occasion when asked, he was less likely to be a
considerate person who respected sexual requests from a
romantic partner. We acknowledge Durfee’s point that the two
requests are not identical and that there may be a basis upon
which to differentiate between a person’s propensity for acceding
to sexual requests and that same person’s propensity for acceding
to requests to leave a residence. But the differences between these
types of requests are not so great as to render irrelevant Durfee’s
refusal to leave the house; indeed, we acknowledge the State’s
point, made during argument before the trial court, that a
person’s home and a person’s body are both intensely personal
spaces. They certainly share sufficient similarities for a juror to
reasonably conclude that Durfee’s apparent refusal to leave Ex-
Girlfriend’s house upon request would make it somewhat less
likely that he is the sort of person who strictly respects his lover’s
wishes during intimacy. At least, we cannot say that the trial
court’s determination exceeded its discretion in this context.

¶41 Accordingly, we reject Durfee’s challenge to the trial
court’s evidentiary ruling provisionally allowing the State to ask
Ex-Girlfriend, on cross-examination, about the specific instance of
conduct in which Durfee apparently refused to leave her house
upon request.

20230410-CA 18 2026 UT App 42
State v. Durfee

CONCLUSION

¶42 Durfee’s ineffective assistance claim fails because he has
not demonstrated that Counsel performed deficiently in the
manner in which he handled and responded to Expert’s testimony
about Eliza’s injuries. And we reject Durfee’s challenge to the trial
court’s evidentiary ruling regarding the permissible scope of the
State’s cross-examination of Ex-Girlfriend. For these reasons, we
reject Durfee’s appellate arguments and affirm his conviction.

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