State v. Hernandez- Rivera

2025 UT App 177

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
FELIPE HERNANDEZ-RIVERA,
Appellant.

Opinion
No. 20230850-CA
Filed December 4, 2025

First District Court, Brigham City Department
The Honorable Spencer D. Walsh
No. 051100183

Matthew R. Morrise and Douglas J. Thompson,
Attorneys for Appellant
Derek E. Brown and Daniel W. Boyer,
Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 After a jury trial, Felipe Hernandez-Rivera was convicted
of one count of rape of a child and five counts of sexual abuse of
a child. He appeals his convictions, arguing that (1) the district
court erroneously excluded evidence of the victim’s prior sexual
behavior under rule 412 of the Utah Rules of Evidence when an
exception to the rule allowed the admission of such evidence,
(2) the court erred in refusing to admit this same evidence when
the State opened the door to its presentation at trial, and
State v. Hernandez-Rivera

(3) defense counsel (Counsel) 1 rendered ineffective assistance
both by (A) failing to seek admission of the rule 412 evidence in
an additional instance where the State had opened the door to it
and (B) stipulating to a jury instruction that misstated the law. We
disagree with each argument and affirm.

BACKGROUND 2

¶2 Twelve-year-old Sadie 3 met nineteen-year-old Hernandez-
Rivera in August 2003 when she was hanging out at a local
bowling alley with a friend. The two began flirting and getting “a
little closer physically to each other” that first day, and
Hernandez-Rivera asked Sadie if she wanted to be his girlfriend.
Sadie “was hesitant at first because of [her] concern of his age” (he
had told her he was sixteen), but she was enjoying that
Hernandez-Rivera “showered” her with compliments that “made
[her] feel good,” so she “ultimately said yes.”

¶3 Hernandez-Rivera and Sadie met up at the bowling alley
again the following week, and the flirting and closeness “pick[ed]
right back up again.” At some point, the two left to go for a walk,
and during that walk Hernandez-Rivera held Sadie’s hand and
kissed her. But while the two were out walking, someone saw

1. In the district court proceedings, Hernandez-Rivera was
represented by two attorneys. Because it is unnecessary to
distinguish between the two in analyzing and addressing the
issues raised on appeal, we refer to a singular “Counsel” for
simplicity.

2. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v.
Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (quotation simplified).

3. A pseudonym.

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them, recognized Sadie, and then reported to Sadie’s mother
(Mother) that Sadie was out walking with “someone that looked
like . . . an adult.” Mother was “very upset” that Sadie was not at
the bowling alley like she had said she would be and told Sadie
that she was “not allowed to go back to the bowling alley
anymore.”

¶4 Sadie then began meeting up with Hernandez-Rivera at a
trailer park where several of his friends would hang out. Sadie
would tell Mother that she was going out for a walk and then walk
to the trailer park to hang out with Hernandez-Rivera. Sometimes
Sadie and Hernandez-Rivera would “sit in his car alone,” “go for
drives alone,” or “go for really short walks alone.” The meet-ups
at the trailer park occurred over the course of the next few months,
during which time “the physical closeness escalated” to include
Hernandez-Rivera touching Sadie’s buttocks and breasts over her
clothing as well as him making attempts to reach his hand under
her clothing. Sadie was initially unreceptive to the increased
touching, but she “became more and more receptive as the
frequency continued to increase,” later remarking that she “was
being buttered up and worn down” during this period.

¶5 As the weather outside started to turn colder, Sadie also
began to take Hernandez-Rivera to her grandmother’s house,
where she would often stay over to provide help to her
grandmother. Because Sadie knew her grandmother “would not
have approved” of her bringing a boy inside the house, Sadie
would sneak Hernandez-Rivera into a basement bedroom before
going to tell her grandmother she was home and saying
goodnight.

¶6 During the first of these encounters, in September 2003,
while Sadie and Hernandez-Rivera were lying on the bed in the
basement bedroom together, Hernandez-Rivera made “more
advances to try to gain entry into [Sadie’s] clothing.” He
repeatedly tried to put his hands up under her shirt or down her

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pants. Sadie was “very adamant that [she] did not want to have
sex,” and it was important to her “that [she] didn’t have sex until
marriage,” so she resisted the touching under her clothing. And
when she did, Hernandez-Rivera “would ease up, and then go
back to the compliments and the kissing and the grooming.” But
then, gradually, Hernandez-Rivera would repeatedly return to
attempts to get underneath Sadie’s clothing. At some point during
the night, Hernandez-Rivera did “shove his hand down [her]
pants” and “made contact with [her] vagina underneath [her]
underwear.” He also “shove[d] [Sadie’s] hand down his pants,”
and she “did make contact with his penis,” even though she
“wasn’t wanting to do that at all.” Hernandez-Rivera eventually
left “really early” in the morning, and Sadie went upstairs to the
couch in the living room, where she was supposed to be sleeping.

¶7 Sadie had another encounter with Hernandez-Rivera in the
basement of her grandmother’s house about a week later. This
encounter went in largely the same manner as the prior one, with
Hernandez-Rivera “slowly work[ing] to try to get under the
[clothing]” and eventually succeeding in “his hand making
contact with [her] vagina” and her “hand making contact with his
penis.” But at some point during this encounter, they heard
Mother coming down the stairs calling for Sadie. Hernandez-
Rivera, who at this point “was only in his socks and his boxer
briefs,” “flew out of bed really fast and started grabbing . . . his
clothes” and belongings. Mother entered the bedroom, turned on
the light, discovered Hernandez-Rivera with Sadie, and began
yelling at him. Hernandez-Rivera “shoved past” Mother, “who
was trying to block the door,” and he “flew up the stairs” and out
the back door. Mother called the police, who came and “took a
statement” and then searched for Hernandez-Rivera but were not
able to locate him.

¶8 After Mother’s discovery, Sadie was no longer allowed to
stay overnight at her grandmother’s house. Nonetheless, Sadie
continued telling Mother she was going for walks and then

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meeting up with Hernandez-Rivera at the trailer park.
Sometimes, he took her to his house, where more of the “same
things” occurred, with him “continuing to pressure [her] for sex.”
Although Sadie was “still very confused and uncomfortable with”
the idea, she became “worn down over time” and “physically
more receptive to maybe trying.” During one visit to his house,
Hernandez-Rivera finally convinced Sadie to have sexual
intercourse with him.

¶9 Sometime after this encounter, Sadie wanted to “write
down [her] thoughts” and so began to make journal entries about
her relationship with Hernandez-Rivera. Mother found Sadie’s
journal and hired a locksmith to open the lock on the journal.
Mother was “[h]orrified” by what she discovered in the journal
regarding Sadie’s sexual relationship with Hernandez-Rivera
(who was identified in the journal by only his first name). Mother
again contacted the police, who opened an investigation. Sadie,
for her part, “was scared” and “withheld information” from the
police at this time, so the police initially had only a first name to
work with.

¶10 “[S]hortly after” Sadie wrote her journal entries about
Hernandez-Rivera, she was “grounded at [Mother’s] house” and
was “not allowed to leave the house.” So she did not see
Hernandez-Rivera again until the spring of the following year,
when she ran into him while visiting a fast-food restaurant with
her friends. After talking for a little while, the two left together,
and Hernandez-Rivera took Sadie to his house. There the two
engaged in sexual intercourse again.

¶11 Around this time, Sadie, who had been doing well in
school and doing “really good hanging out with kids [her own]
age,” “convinced [Mother] to unground [her].” This allowed
Sadie to frequently sleep over at her friend’s house, and she
would often sneak out of her friend’s house to go to Hernandez-
Rivera’s house. Sadie and Hernandez-Rivera continued to have

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sexual intercourse during this period of time. But by early
summer, the relationship ended because Hernandez-Rivera
“disappeared.”

¶12 About a year after the police had initiated their
investigation, Sadie began to be more cooperative in providing
information regarding Hernandez-Rivera. And in January 2005,
she provided the police with a hair, explaining that one time after
she and Hernandez-Rivera had sexual intercourse, “she had
found a pubic hair in her underwear and she’d kept it.” The police
entered the hair into evidence, but it was not submitted to the
crime lab for testing at that time.

¶13 In May 2005, the State had gathered sufficient information
to file charges against Hernandez-Rivera for one count of rape of
a child and five counts of sexual abuse of a child, based on the
encounters with Sadie. A warrant was issued for his arrest, and
the police tried various means to determine his whereabouts. At
some point in that search, the police were told that Hernandez-
Rivera “was no longer in the country,” and shortly thereafter the
case “went cold.”

¶14 Thirteen years later, in November 2018, one of Sadie’s
friends contacted her to tell her that Hernandez-Rivera had a
Facebook page. From this discovery, Sadie “had a strong
suspicion that [Hernandez-Rivera] was in North Carolina,” and
she reached out to the police “to reopen the case at that point.” As
a result of this lead, the police were able to finally locate
Hernandez-Rivera, and he was extradited to Utah in April 2021.

¶15 In the revived case, DNA testing was performed on the hair
previously provided by Sadie. Due to “a lot of degradation” in the
sample, the “only thing” testing really determined “was that it
was a mixture of at least three individuals’, male and female,
DNA.”

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¶16 Prior to trial, Hernandez-Rivera filed a motion to admit
certain evidence pursuant to rule 412 of the Utah Rules of
Evidence. Hernandez-Rivera argued that rule 412 permitted the
admission of evidence of Sadie’s “prior sexual relationship with
an unknown adult male” in order to show that the hair provided
by Sadie belonged to someone other than Hernandez-Rivera. See
Utah R. Evid. 412(b)(1) (establishing that a court may, when the
evidence is “otherwise admissible,” admit “evidence of specific
instances of a victim’s sexual behavior” if the purpose is “to prove
that someone other than the defendant was the source of semen,
injury, or other physical evidence”). Specifically, Hernandez-
Rivera sought to introduce evidence at trial that in May 2003—
approximately five months before the alleged crimes occurred in
this case—Sadie had met up at a motel with a man named
Edmundo, the two “engaged in sexual acts,” and “he ‘attempted’
penetration.”

¶17 After hearing oral argument, the district court ultimately
denied the motion to admit evidence of the Edmundo encounter
because it was not admissible under the balancing test of rule 403
of the Utah Rules of Evidence. Looking first to the probative value
of the evidence of Sadie’s encounter with Edmundo, the court
determined that the evidence was relevant and had “some
probative value” due to the inconclusive nature of the DNA
results and the resulting fact that Edmundo was at least “a
possible source for the pubic hair.” But the court determined that
the probative value was nonetheless “only slight” because
(1) Sadie and Edmundo “were discovered at the motel by
[Mother]”; (2) the “police collected evidence immediately from
the motel room, including the used towels, [Sadie’s] underwear,
which had a stain on it, [and] the bedding involved”; (3) Sadie
“underwent an invasive anogenital exam”; (4) Sadie “reported
that she’d showered before” the exam; and (5) there was a
“remoteness in time to the pubic hair being put in a baggie by
[Sadie]” several months later. Considering these facts, the court
concluded that “the chances that the pubic hair turned over to law

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enforcement” belonged to Edmundo “seem[ed] remote” and that
the court had “been presented with no evidence to support such
a contention.”

¶18 As to the other side of the rule 403 balancing requirement,
the district court determined that the evidence involving
Edmundo “would have an undue tendency to suggest a decision
on an improper basis.” The court reasoned that there was a “great
potential for improper inferences that [Sadie was] the type of
person who would invite sexual contact with an older man who
would willingly engage in this type of sexual conduct or that she
would be trouble for older men.” The court also found that the
requested evidence “would inflame, mislead, and distort the
jury’s deliberative process,” and the court expressed its concern
“that there could be confusion of the issues because the jury
would be hearing about two different cases involving somewhat
similar set[s] of facts . . . that could lead to further confusion on
these issues.” And finally, the court found that admitting the
requested evidence would be an “unwarranted invasion of
[Sadie’s] privacy.”

¶19 Summing up its rule 403 balancing, the district court
concluded, “[E]ven though the Edmundo evidence does have
some slight probative value, that probative value . . . is
outweighed by the inherent danger of unfair prejudice, confusion
of the issues, and unwarranted invasion of [Sadie’s] privacy, and
will therefore not be admissible.”

¶20 On the first day of trial, before testimony commenced, the
prosecutor expressed his intention to discuss Sadie’s journal, not
for the purpose of showing that its contents were true, but to
provide context for Mother’s actions in going to the police. The
prosecutor anticipated that Mother would say “[s]he saw
something in there where . . . [Sadie] had lost her virginity to some
guy named Felipe.” Counsel was concerned with the use of the
term “virginity,” thinking that such a mention would open the

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door to asking about Edmundo for impeachment purposes. The
prosecutor responded that he did not think the door would be
open in that case because the Edmundo encounter involved only
“attempted penetration” and Sadie may have still considered
herself a virgin before she had sexual intercourse with
Hernandez-Rivera. The district court stated it could see Counsel’s
point and that it would prefer to avoid an “incorrect insinuation
that [Sadie had] never had sexual activity before.” The prosecutor
responded that he would direct Mother not to mention “virginity”
but to simply refer to statements in the journal that Sadie had
engaged in sexual intercourse with Hernandez-Rivera. Both the
court and Counsel agreed with this approach.

¶21 Mother was the State’s first witness. In spite of the
prosecutor’s instruction to Mother, the “virginity” language still
came up during Mother’s direct examination:

Q. . . . . You opened up [Sadie’s] journal. Did you
find anything in there that concerned you?

A. Horrified.

Q. What did you find?

A. I was more than worried. I was very
concerned.

Q. Did you find anything in regards to a Felipe?

A. Yeah.

Q. What did—what did you find?

A. She was having a relationship with this
gentleman, and it indicated sexual activity,
things like that.

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Q. Okay. Did it mention sexual intercourse?

A. Well, it said that she had—wasn’t a virgin.

Counsel objected, and a brief sidebar was held. The district court
asked the attorneys for their suggestions to cure the statement,
and then the court stated its intention “to order that that last part
be stricken, because it wasn’t responsive to the question,” and to
“just move on to the next question” in order to “not draw more
attention” to the statement. The court then asked Counsel, “[A]nd
then whether or not certain doors are opened, that’s for a later
discussion, right? Is there anything else you want preserved right
now other than your objection?” Counsel responded, “We’ll wait
and see.” The sidebar concluded, the court struck the statement
and ordered the jury “to disregard the last portion of the
testimony,” and the prosecutor continued with Mother’s direct
examination.

¶22 Counsel thereafter cross-examined Mother. Counsel began
with a few questions regarding Mother discovering Sadie and
Hernandez-Rivera together in Sadie’s grandmother’s basement.
Counsel then shifted to asking Mother about “some difficulty”
Mother had been having with Sadie the previous year and some
“defiant behaviors” Sadie had previously been exhibiting. But
Counsel then returned to questioning Mother about finding Sadie
and Hernandez-Rivera together in the basement and Mother’s
subsequent discovery of Sadie’s journal entries about Hernandez-
Rivera. Then the following exchange occurred:

Q. So after the incident in the basement, where
you found this man—

A. Uh-huh.

Q. —didn’t know his age, didn’t [Sadie] tell you
then that she met this man at the bowling
alley?

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A. Exactly.

Q. And then you forb[ade] [Sadie] from going to
the bowling alley.

A. That’s correct.

Q. Okay. But then you found out that she was
still going to the bowling alley, correct?

A. Correct.

Q. So between September, when the—you
found her in the basement, to November at
some point—

A. Uh-huh.

Q. —so for a couple of months, you tried to put
restrictions in place, right?

A. Correct.

Q. Okay. But [Sadie] wasn’t following those
restrictions.

A. One time, she didn’t follow. But after that,
she no longer went to the bowling alley. She
tried to—that’s what I said, she pushed
boundaries.

....

Q. There were times that you indicated to [the
police] that, between those times, between
when you found her in the basement to the
diary—

20230850-CA 11 2025 UT App 177
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A. Uh-huh.

Q. —that you didn’t know where she was; is
that correct?

A. Yes.

Q. And that she would sneak out and do things
she wasn’t supposed to do.

A. I wouldn’t say sneak out. I always knew
when she was going somewhere, and she
knew what time she had to be home. There
had to have been—looking back now, there
had to have been a couple of instances where
maybe she wasn’t where she—she didn’t stay
where she was going the whole time.

Q. Okay. Well, isn’t it true, though, that before
you saw her in the basement with an
unknown man, she was found at a hotel a
few months before that, and you didn’t
know—

The prosecutor then objected to this reference to the Edmundo
encounter, and another sidebar commenced.

¶23 The district court sustained the objection and instructed
Counsel not to “drop bombs like that” without requesting a
reconsideration of the prior ruling regarding the Edmundo
encounter. Counsel stated her intent was not to reveal the sexual
details of the Edmundo encounter but to impeach Mother’s
testimony about Sadie generally being where she said she would
be. The prosecutor responded that there was nothing to impeach
because the questioning had been “revolving around the fall of
2003” and the Edmundo encounter had been “months earlier.”
And the prosecutor also expressed frustration with Counsel

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moving forward with questions relating to the Edmundo
encounter based on her own assessment that the door had been
opened, without first raising that issue with the court.

¶24 The district court agreed that the parties needed to be
“very, very careful” with rule 412 evidence; however, it also
recognized, “[S]ometimes, even with our best efforts to tiptoe on
the line, a witness blurts out something like ‘virginity.’” The court
instructed, “Before we get anywhere close to anything with the
[rule] 412 stuff . . . , we [have] got to make sure to come back and
. . . get permission. Okay?” The court then clarified with Counsel
the questions that she could ask that would allow reference to the
Edmundo encounter for impeachment without a need to disclose
any of the details protected by rule 412. And the court reminded
the attorneys that “anything related to Edmundo” was “off the
table” and that they needed to “stay far, far, far away from any
intimation that there’s sexual activity going on with other
people.”

¶25 Cross-examination of Mother then resumed. Counsel
returned to asking Mother about her previous statement
indicating that Sadie was generally where she was supposed to be
and questioned, “But that’s not accurate, is it?” Mother, who had
been present for the attorneys’ sidebar discussion on the matter
and knew what was being referenced by Counsel, replied, “Quite
honestly, I had not even recalled that incident that you’re bringing
up now.” Mother then proceeded to answer Counsel’s questions
related to the Edmundo encounter, which included questions
about “an incident . . . where [Sadie] was missing for two days,”
the fact that “the police were called,” the fact that the incident “led
to an investigation,” and the fact that the person involved “was
charged with a serious crime.”

¶26 After Mother’s testimony, the State presented its other
witnesses, including Sadie and several police officers involved in
the investigation, who provided testimony consistent with the

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above description of events. After the State rested, the defense
presented its case, which primarily consisted of the testimony of
a forensic scientist from the Utah State Crime Lab (who testified
as to the degradation of the DNA sample and the resulting limited
test results) and Hernandez-Rivera (who testified that he had held
hands with Sadie and kissed her, “but no more than that”). The
defense then rested.

¶27 The jury was given instructions stipulated by both the
prosecutor and Counsel. These included instructions as to the
various elements of the charged crimes. For three of the counts of
sexual abuse of a child, the jury was instructed that the crime
required that Hernandez-Rivera “[c]aused [Sadie] to take
indecent liberties with [him].” And a separate jury instruction
clarified which charges were based on what alleged conduct,
stating that these three counts of sexual abuse of a child were
based “on the alleged conduct of [Sadie] touching [Hernandez-
Rivera] on his penis” on three specific occasions. Additionally, the
jury was provided with the following definitional instruction:
“‘Indecent liberties’ means causing any part of [Sadie’s] body to
touch the actor’s genitals or pubic area.”

¶28 The jury convicted Hernandez-Rivera on each of the
charged counts. He was thereafter sentenced to concurrent prison
terms. He now appeals his convictions.

ISSUES AND STANDARDS OF REVIEW

¶29 First, Hernandez-Rivera contests the district court’s denial
of his motion to admit certain rule 412 evidence. “We afford
district courts a great deal of discretion in determining whether to
admit or exclude evidence and will not overturn an evidentiary
ruling absent an abuse of discretion.” State v. Cuttler, 2015 UT 95,
¶ 12, 367 P.3d 981 (quotation simplified). A district court abuses
its discretion when it applies “the wrong legal standard” or when

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its decision “is beyond the limits of reasonability.” Id. (quotation
simplified). And “whether the district court applied the proper
legal standard . . . is a question of law that we review for
correctness.” Id. (quotation simplified).

¶30 Second, Hernandez-Rivera contests the district court’s
limited allowances of the use of the Edmundo evidence for
impeachment purposes. “When reviewing a [district] court’s
decision to limit cross-examination, we review the legal rule
applied for correctness and the application of the rule to the facts
of the case for an abuse of discretion.” State v. Eddington, 2023 UT
App 19, ¶ 19, 525 P.3d 920 (quotation simplified).

¶31 Finally, Hernandez-Rivera raises two claims of ineffective
assistance of counsel. “When a claim of ineffective assistance of
counsel is raised for the first time on appeal, there is no lower
court ruling to review and we must decide whether the defendant
was deprived of the effective assistance of counsel as a matter of
law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587
(quotation simplified).

ANALYSIS

I. Rule 412 Evidence

¶32 Rule 412 of the Utah Rules of Evidence, applicable in
proceedings involving alleged sexual misconduct, generally
prohibits the admission of evidence that is offered “to prove that
a victim engaged in other sexual behavior” or “to prove a victim’s
sexual predisposition.” Utah R. Evid. 412(a). But the rule does
provide certain exceptions, including allowing the admission of
“evidence of specific instances of a victim’s sexual behavior, if
offered to prove that someone other than the defendant was the
source of semen, injury, or other physical evidence.” Id. R.
412(b)(1). Hernandez-Rivera sought to admit evidence that
Edmundo sexually assaulted Sadie and that Edmundo was the

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source of the pubic hair Sadie provided to the police in 2005.
However, such evidence must also be “otherwise admissible
under” the remaining evidentiary rules. Id. R. 412(b).

¶33 Rule 403 of the Utah Rules of Evidence provides, “The
court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Id. R. 403. Thus, evidence that may be
admitted under rule 412’s exceptions must also pass the balancing
test of rule 403 in order to be admissible. Id. R. 412(b).

¶34 “Evidence is unfairly prejudicial where it has an undue
tendency to suggest decision upon an improper basis.” State v.
Rallison, 2023 UT App 34, ¶ 26, 528 P.3d 1235 (quotation
simplified). And “evidence may also cause unfair prejudice when
it reveals intimate and potentially embarrassing details about
victims.” Id. (quotation simplified); see also State v. Bravo, 2015 UT
App 17, ¶ 20, 343 P.3d 306 (“[R]ule 403 provides the mechanism
to ensure that the privacy and dignity interests of alleged victims
are factored into the analysis.”). “Rule 403 therefore represents a
bulwark against the invasion of privacy, potential embarrassment
and sexual stereotyping that is associated with public disclosure
of intimate sexual details falling within [rule 412’s exceptions].”
Bravo, 2015 UT App 17, ¶ 20 (quotation simplified).

¶35 Hernandez-Rivera argues that the district court
committed two distinct errors in denying his motion to
admit evidence of Sadie’s prior sexual encounter with Edmundo.
He asserts, first, that the court applied “an incorrect legal
standard” in conducting the rule 403 balancing and, second, that
the court “misbalanced the probative weight of the [Edmundo]
evidence and the danger of unfair prejudice.” We address each
assertion in turn.

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A. The Applicable Legal Standard

¶36 In describing the relevant law, the district court quoted the
following language from State v. Boyd, 2001 UT 30, 25 P.3d 985:

When applying rule 403 to the admissibility
of a rape victim’s past sexual conduct, there is a
presumption of inadmissibility: Such evidence is
admissible only when the court finds under the
circumstances of the particular case such evidence is
relevant to a material factual dispute and its
probative value outweighs the inherent danger of
unfair prejudice to the victim, confusion of issues,
unwarranted invasion of the complainant’s privacy,
considerations of undue delay and time waste and
the needless presentation of cumulative evidence.

Id. ¶ 41 (quotation simplified). Hernandez-Rivera argues that the
standard expressed in Boyd is no longer applicable because the
Utah Supreme Court has more recently “abandoned tests that go
beyond the plain language of [r]ule 403,” citing cases in which the
supreme court has emphasized the language of the rule itself as
the governing standard, see State v. Lucero, 2014 UT 15, ¶ 32, 328
P.3d 841 (stating, in the context of the admission of rule 404(b)
evidence, that “courts are bound by the text of rule 403” and not
the “limited list” of “suggested factors” identified in certain prior
case law (quotation simplified)), abrogated on other grounds by State
v. Thornton, 2017 UT 9, 391 P.3d 1016; State v. Cuttler, 2015 UT 95,
¶¶ 2, 18, 367 P.3d 981 (extending “Lucero and its logic to
determinations made under rule 404(c)” and stating that “the
governing legal standard for evaluating whether evidence
satisfies rule 403 is the plain language of the rule, nothing more
and nothing less”).

¶37 We acknowledge that there exists some question as to the
continued applicability of Boyd. Indeed, this court has previously
noted that because the presumption of inadmissibility expressed

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in Boyd “is not indicated in the plain language of rule 403” and
because the supreme court “has recently repeatedly eschewed
extra-textual or contra-textual judicial glosses on the Utah Rules
of Evidence,” “we are not certain whether this presumption
continues to be applicable.” State v. Rallison, 2023 UT App 34, ¶ 25
n.7, 528 P.3d 1235 (quotation simplified); accord State v. Granere,
2024 UT App 1, ¶ 80 n.26, 543 P.3d 177, cert. denied, 558 P.3d 87
(Utah 2024).

¶38 Nonetheless, whether there remains a presumption that
evidence of a sexual assault victim’s past sexual conduct is
inadmissible is ultimately immaterial here where there is no
indication that the district court’s decision relied on the
presumption expressed in Boyd. In the court’s application of the
law to the relevant facts, it did not state its findings in terms of the
Boyd presumption but repeatedly stated its determination that the
probative value of the Edmundo evidence was “substantially
outweighed by” the dangers of unfair prejudice (including
revealing private details regarding Sadie), confusion of the issues,
and misleading the jury. Thus, the court adhered to the language
of rule 403 itself and did not abuse its discretion by applying an
incorrect legal standard.

B. The Rule 403 Balancing

¶39 The district court determined that although the Edmundo
evidence had “some probative value,” that probative value was
“only slight.” This was largely because after Sadie and Edmundo
were “discovered” at the motel, the police immediately collected
towels, bedding, and Sadie’s underwear, and Sadie also
“underwent an invasive anogenital exam” and “reported that
she’d showered before” the exam.

¶40 As to the other side of the rule 403 balancing test, the
district court determined that the Edmundo evidence “would
have an undue tendency to suggest a decision on an improper

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State v. Hernandez-Rivera

basis” and that there was “a great potential for improper
inferences that [Sadie was] the type of person who would invite
sexual contact with an older man who would willingly engage in
this type of sexual conduct or that she would be trouble for older
men.” The court also concluded that the Edmundo evidence
would be “an unwarranted invasion of [Sadie’s] privacy,” that
“the details of the Edmundo evidence would inflame, mislead,
and distort the jury’s deliberative process,” and “that there could
be confusion of the issues because the jury would be hearing
about two different cases involving somewhat similar set[s] of
facts . . . that could lead to further confusion on these issues.” The
court determined that these dangers “substantially outweighed”
the “slight” probative value of the Edmundo evidence.

¶41 Hernandez-Rivera argues that the district court’s
assessment of the probative value was incorrect, and he argues
that “the Edmundo evidence was significant as an alternative
source of the pubic hair.” He points to the lengthy delay in Sadie
turning the hair over to the police—occurring fourteen months
after the charged conduct—and to the inconclusive nature of the
eventual DNA results. But the court recognized the inconclusive
DNA testing as the very reason the Edmundo evidence did have
some probative value. However, the court determined that this
probative value was considerably lessened by the circumstances
surrounding the discovery of Sadie in the motel room that created
a very low likelihood that Sadie would have left the Edmundo
encounter with one of Edmundo’s pubic hairs. And any delay that
may have occurred before Sadie provided the hair to the police
does nothing to increase that likelihood.4

4. Hernandez-Rivera points to Sadie’s testimony that the hair was
“something special” to her, and he suggests that she would have
been more likely to have kept a pubic hair from Edmundo because
she more valued her relationship with him more. However,
(continued…)

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State v. Hernandez-Rivera

¶42 Additionally, Hernandez-Rivera argues that any “danger
of unfair prejudice was low” because the State brought up the
pubic hair evidence in its case-in-chief. Likewise, he argues that
“any confusion of the issues was invited in the State’s case-in-
chief.” But because the very purpose of the rule 412 exception at
play here is to counter a piece of physical evidence being used
against the defendant, see Utah R. Evid. 412(b)(1), it will almost
certainly be the case that the State has introduced that evidence in
its case-in-chief. Nonetheless, the rule 412 evidence the defendant
seeks to admit still must pass the rule 403 balancing test. See id. R.
412(b). And Hernandez-Rivera points us to no authority
indicating that the State’s initial introduction of the physical
evidence against him tips the rule 403 balancing test toward
admission, as he suggests. 5

¶43 In sum, Hernandez-Rivera has not shown that the district
court exceeded its discretion in the rule 403 balancing it
performed—neither in the court’s determination that the
probative value of the Edmundo evidence was “only slight” due
to the way that encounter ended, nor in the court’s assessment

Sadie’s testimony was that the hair “was something personal . . .
from that encounter,” specifically referencing her first time having
sexual intercourse with Hernandez-Rivera. (Emphasis added.)
Moreover, like the other evidence pointed to by Hernandez-
Rivera, Sadie’s feelings toward her two abusers does not alter the
fact that the circumstances surrounding the Edmundo encounter
made it unlikely that Sadie left the encounter with one of
Edmundo’s pubic hairs.

5. Hernandez-Rivera does cite State v. Eddington, 2023 UT App 19,
525 P.3d 920, to support his assertion that there is no unfair
prejudice when the State introduces the evidence to be rebutted.
But as we discuss in the next section, see infra ¶¶ 45–46, 48, the
facts in Eddington are easily distinguishable from the facts of this
case.

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State v. Hernandez-Rivera

that the risks of admitting the evidence “substantially
outweighed” that slight probative value.

II. The Cross-Examination of Mother

¶44 Hernandez-Rivera next argues that “the State was
repeatedly allowed to use [r]ule 412 as a sword, not a shield, to
create false impressions of Sadie’s credibility.” 6 He asserts that the
district court erroneously denied his attempts to use the
Edmundo evidence after the State had opened the door.
Specifically, he points to testimony given by Mother that, he
argues, “minimized Sadie’s leaving the house without
permission.” 7

¶45 Hernandez-Rivera’s argument relies heavily on State v.
Eddington, 2023 UT App 19, 525 P.3d 920. There, the defendant

6. The State argues that this issue was not preserved for appeal.
But because this claim is easily resolved in the State’s favor, we
choose to address the merits of the claim without addressing the
preservation issue. See State v. Kitches, 2021 UT App 24, ¶ 28, 484
P.3d 415 (“[I]f the merits of a claim can easily be resolved in favor
of the party asserting that the claim was not preserved, we readily
may opt to do so without addressing preservation.” (emphasis
omitted)).

7. Hernandez-Rivera also references Counsel’s “other motions to
impeach Mother and Sadie” with rule 412 evidence, but he asserts
that he “lack[s] the space in [his] brief to conduct detailed analysis
of the circumstances of [those] other motions.” But the lack of any
such analysis limits our ability to evaluate these additional
arguments on appeal, and we therefore do not reach them. See
generally Bresee v. Barton, 2016 UT App 220, ¶ 30, 387 P.3d 536
(“[Appellants] have the burden to develop their arguments with
reasoned analysis based on the pertinent portions of the record
. . . .” (quotation simplified)).

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State v. Hernandez-Rivera

was charged with various sexual offenses, and the trial court
granted, pursuant to rule 412, the State’s pretrial motion to
prevent the defense from presenting any evidence of the alleged
victim’s prior sexual behavior and disposition. See id. ¶ 1. But at
trial, the State took advantage of this restriction to create the false
impression that the alleged victim had no sexual past, “asserting
in an opening statement that [the defendant] took his alleged
victim’s ‘virtue’ and then eliciting testimony from her that she
was not the kind of girl who invites guys into her bedroom or
engages in certain sexual activity.” Id. This court determined that
these assertions opened the proverbial door and that defense
counsel should have been allowed to question the alleged victim
about her sexual past in order to rebut the misimpression that
“was generated by the prosecutor and the witness themselves.”
See id. ¶ 38. The Eddington court stated, “[T]he [trial] court
exceeded its discretion in using this pretrial ruling to act not as a
shield—as the rule intends—but as a sword and an excuse to
allow the prosecution and its witness to state or infer facts the
court had already ruled could not come before the jury. The
protections of rule 412 are to be realized only when the
prosecution and its witnesses also continue to abide by the same
restrictions they have asked the trial court to impose on the
defendant.” Id. ¶ 27.

¶46 Hernandez-Rivera argues that “Eddington is on all fours
with this case” and asserts that the State similarly tried to use rule
412 as a sword against him. He asserts that the State did so when
it went to “great lengths” to “create an impression that Sadie was,
at worst, mildly disobedient, and an otherwise credible and
trustworthy person.” But this argument is unavailing.

¶47 As an initial matter, the challenged testimony here, when
read in context, is arguably not contradicted by any of the
information that the defense wished to present regarding the
Edmundo encounter. The specific testimony Hernandez-Rivera
points to as opening the door involved Mother’s responses that

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State v. Hernandez-Rivera

there were “a couple of instances where maybe . . . [Sadie] didn’t
stay where she was going the whole time” and that Mother “had
not even recalled” the Edmundo incident. But when these
exchanges are viewed in context, it is quite evident that the
questioning was in reference to a specific period of time that did
not include the Edmundo encounter. The first challenged
exchange was as follows:

Q. There were times that you indicated to [the
police] that, between those times, between when
you found her in the basement to the diary—

A. Uh-huh.

Q. —that you didn’t know where she was; is
that correct?

A. Yes.

Q. And that she would sneak out and do things
she wasn’t supposed to do.

A. I wouldn’t say sneak out. I always knew
when she was going somewhere, and she
knew what time she had to be home. There
had to have been—looking back now, there
had to have been a couple of instances where
maybe she wasn’t where she—she didn’t stay
where she was going the whole time.

(Emphasis added.) And when Counsel later referenced this
exchange and suggested that Mother’s response had been “not
accurate,” Mother replied, “Quite honestly, I had not even
recalled that incident that you’re bringing up now.” Thus,
Mother’s initial comment was not an assertion that there were just
“a couple of instances” in Sadie’s life where she was not where she
said she would be, but that there were “a couple of instances” of

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State v. Hernandez-Rivera

that happening in the particular time frame that the questioning had
specified. And her later reply was most likely a recognition that
she had not been thinking more broadly when answering the
question in the first place but was instead focused on the later time
frame specified in Counsel’s question. Therefore, the mention of
Sadie being with Edmundo for a significant period of time
without permission—which occurred several months prior to
Mother finding Sadie in the basement with Hernandez-Rivera—
would not actually serve to impeach Mother’s testimony.

¶48 Notwithstanding our skepticism of Hernandez-Rivera’s
characterization of Mother’s testimony as more broadly asserting
Sadie’s obedience or reliability, we determine that even under his
characterization, where the Edmundo encounter would have had
some impeachment value, his claim still fails. The only parts of
the Edmundo encounter that would have rebutted Mother’s
statements would simply be the fact that there was another time
that Mother was likely to remember that Sadie was not where she
was meant to be for a significant period of time. 8 Unlike in

8. Hernandez-Rivera also “notes” other aspects of Mother’s
testimony that he argues helped create a misimpression of Sadie,
specifically, her testimony that Sadie was an “[e]xcellent” student,
had friends at school, was “extremely organized [and] always on
point,” started college at sixteen, and “sought independence.” In
addition to recognizing the obvious fact that these assertions are
entirely unrelated to Sadie’s sexual behavior, we also recognize
that Hernandez-Rivera points to no evidence suggesting that
these assertions were false. See Eddington, 2023 UT App 19, ¶ 39
(discussing the defendant’s need “to rebut the misimpression
created by the prosecution that [the alleged victim] had no sexual
past—an inference that was not factually correct” (emphasis added)).
We therefore do not see that these statements helped to create any
misimpression, let alone one that was related to Sadie’s sexual
past.
(continued…)

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State v. Hernandez-Rivera

Eddington, the asserted misimpression here did not involve
Sadie’s sexual history or sexual disposition, and therefore
impeachment evidence rebutting the asserted misimpression
would not have needed to include those details that are protected
by rule 412. And indeed, this impeachment evidence is precisely
what the district court allowed in this case. The court allowed
Counsel’s cross-examination to address “an incident . . . where
[Sadie] was missing for two days,” that “the police were called,”
that the incident “led to an investigation,” and that the person
involved “was charged with a serious crime.” Under these
circumstances, the court did not abuse its discretion in
determining that the door was not completely thrown open to
allow questioning regarding all aspects of the Edmundo
encounter, including those aspects that would reveal Sadie’s prior
sexual behavior or predisposition.

Additionally, Hernandez-Rivera points to Mother’s
opinion that Sadie was “not an attention-seeker” as also feeding
into a misimpression of Sadie. But the court allowed Counsel to
impeach Mother on this issue, and when Counsel did so, she was
successful in getting Mother to admit that Sadie’s journal painted
a different picture:
Q. But from what you read from the journal,
that was what she said was her intention, was
seeking attention from guys.
A. If that’s how you interpret it.
Q. But—and we’re not talking about
interpretations. Everybody has
interpretations of different things that are
said, but that—that’s what was said; is that
correct? In her journal.
A. Yeah—yes.
Thus, Counsel was allowed to impeach Mother on this issue, and
there was no lingering misimpression after she did so.

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State v. Hernandez-Rivera

III. Ineffective Assistance of Counsel

¶49 Hernandez-Rivera asserts that Counsel provided
constitutionally ineffective assistance in two respects. His first
claim concerns Counsel’s failure to move to introduce the
Edmundo evidence after Mother referenced Sadie’s virginity. His
second claim concerns the failure to object to a jury instruction
regarding indecent liberties.

¶50 To succeed on an ineffective assistance of counsel claim, a
defendant must make two showings: “First, the defendant must
show that counsel’s performance was deficient,” and “[s]econd,
the defendant must show that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). And “[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.” Id.

¶51 In considering the first required showing of deficient
performance, we “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” Id. at 689 (quotation
simplified); see also State v. Samora, 2023 UT 5, ¶ 20, 529 P.3d 330
(“Trial counsel’s performance is deficient only if the alleged
conduct fell below an objective standard of reasonableness under
prevailing professional norms.” (quotation simplified)). We
determine that for both asserted instances of ineffective assistance
of counsel, Hernandez-Rivera has not shown that Counsel
performed deficiently, and therefore, his claims fail.

A. The Testimony Regarding Virginity

¶52 Hernandez-Rivera’s first ineffective assistance of counsel
claim regards another piece of testimony that he argues “clearly”

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State v. Hernandez-Rivera

opened the door to questioning regarding the Edmundo
encounter. He bases this argument on Mother’s reference to
Sadie’s journal revealing that Sadie was no longer a virgin as a
result of sexual activity with Hernandez-Rivera.

¶53 Mother’s testimony underlying this claim is the following
exchange that occurred during direct examination:

Q. Did you find anything in regards to a Felipe?

A. Yeah.

Q. What did—what did you find?

A. She was having a relationship with this
gentleman, and it indicated sexual activity,
things like that.

Q. Okay. Did it mention sexual intercourse?

A. Well, it said that she had—wasn’t a virgin.

Counsel objected, after which the district court had the attorneys
approach and offer suggestions for how to cure the inappropriate
answer. The prosecutor said that he had instructed Mother not to
mention virginity and that the two had agreed she would instead
state simply that the journal said Sadie and Hernandez-Rivera
had “had sex.” The court thereafter struck the last portion of
Mother’s testimony as nonresponsive, ordered the jury “to
disregard” it, and had the prosecutor move on to further
questioning in an attempt to “not draw more attention” to the
exchange.

¶54 During Mother’s cross-examination, when Counsel first
attempted to refer to the Edmundo encounter by questioning
Mother regarding Sadie previously being “found at a hotel,” the
district court foreclosed that line of questioning. In the discussion

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State v. Hernandez-Rivera

that followed, the court made it clear that Counsel was not
allowed to “drop bombs like that” and that the possible admission
of any evidence related to the Edmundo encounter must be
discussed with the court first, outside the presence of the jury. The
court then conducted a lengthy discussion with the attorneys in
which the court repeatedly emphasized the need to be “very, very
careful” with the evidence protected by rule 412. The court
specifically referred to the earlier testimony regarding virginity
and recognized, “[S]ometimes, even with our best efforts to tiptoe
on the line, a witness blurts out something like ‘virginity.’” But
the court nonetheless reminded the parties of the baseline rule
that “anything related to Edmundo” was “off the table.” The court
then narrowly tailored the impeachment questions that Counsel
wished to ask and again reminded Counsel to “stay far, far, far
away from any intimation that there’s sexual activity going on
with other people.” Thus, the court’s position seemed a clear
indication that it did not consider the door open to evidence
regarding the sexual encounter between Sadie and Edmundo,
despite Mother “blurt[ing] out” the term “virginity.”

¶55 Further, Counsel likely understood that the district court
was unlikely to agree that evidence of the Edmundo encounter
would impeach Mother on the “virginity” reference. In its pretrial
rule 412 ruling, the court had characterized the Edmundo
encounter as involving sexual acts that stopped short of vaginal
penetration. Therefore, it was arguable that nothing from that
encounter would counter the apparent indication in Sadie’s
journal that she lost her virginity to Hernandez-Rivera. 9

¶56 Considering the questionable impeachment value of the
Edmundo evidence and the district court’s determination to
zealously enforce rule 412, a reasonable attorney in Counsel’s
position could have concluded that an argument that Mother’s
“virginity” reference opened the door to the broader introduction

9. The content of the journal is not a part of the record on appeal.

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State v. Hernandez-Rivera

of the Edmundo evidence would have been futile. And the failure
to make such a request does not amount to deficient performance.
See State v. Ring, 2018 UT 19, ¶¶ 43, 47, 424 P.3d 845 (determining
that trial counsel did not perform deficiently in failing to object
when “trial counsel could have reasonably believed that an
objection was futile”). This ineffective assistance of counsel claim
therefore fails.

B. The Indecent Liberties Jury Instruction

¶57 Hernandez-Rivera’s second ineffective assistance of
counsel claim concerns the jury instruction defining indecent
liberties. He argues that this instruction misstated the law and that
Counsel rendered ineffective assistance in approving it.

¶58 Under the statutory scheme in effect at the time of the
alleged crimes, the touching prohibited by the sexual abuse of a
child statute was where “the actor touches the anus, buttocks, or
genitalia of any child, the breast of a female child, or otherwise
takes indecent liberties with a child, or causes a child to take
indecent liberties with the actor or another.” Utah Code § 76-5-
404.1(2) (2003). And “any touching, even if accomplished through
clothing, [was] sufficient to constitute the relevant element of the
offense.” Id. § 76-5-407(3) (emphasis added). While the term
“indecent liberties” was not defined by statute, the Utah Supreme
Court had interpreted the phrase to “proscribe the type of conduct
of equal gravity to that interdicted in the first part” of the
phrasing. In re J.L.S., 610 P.2d 1294, 1295 (Utah 1980); accord State
v. Ray, 2020 UT 12, ¶ 27, 469 P.3d 871. That is, other touching
amounted to taking indecent liberties if it was of equal gravity to
the touching of the anus, buttocks, genitalia, or female breasts,
either directly or through clothing.

¶59 Later, the term “indecent liberties” was statutorily defined
to include “causing any part of an individual’s body to touch the
actor’s or another’s genitals, pubic area, anus, buttocks, or female

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State v. Hernandez-Rivera

breast,” see Utah Code §§ 76-5-401.1(1)(a)(i)(B), -404.1(1)(a)(iii)
(2022). And this was the language on which the jury instruction
here was based, the instruction stating, “‘Indecent liberties’ means
causing any part of [Sadie’s] body to touch the actor’s genitals or
pubic area.”

¶60 The jury was instructed that the touching required for three
of the charged counts of sexual abuse of a child was that
Hernandez-Rivera “[c]aused [Sadie] to take indecent liberties
with [him].” And although the jury instruction defining “indecent
liberties” referred to the touching of “genitals or pubic area,” the
jury was additionally instructed that the three charges alleging
indecent liberties were based “on the alleged conduct of [Sadie]
touching [Hernandez-Rivera] on his penis” on three distinct
occasions. Thus, the jury was instructed that these three charges
were based on Hernandez-Rivera causing Sadie to touch him on
his penis, and such touching certainly meets the requirement of
the earlier statute that the charged conduct be of equal gravity to
the actor touching the anus, buttocks, genitalia, or female breasts
(either directly or through clothing) of the child.

¶61 Hernandez-Rivera pushes back, asserting that the jury
perhaps did not believe Sadie’s testimony that he caused her to
touch his penis but instead convicted him based only on the belief
that he caused her to touch his pubic area when he “would be
shoving [her hand] down his pants,” and he argues that because
the touching of the “pubic area” was not specifically covered by
the older version of the statute, the instructions as given
“broadened the factual scenarios in which the jury would be
required to reach a guilty verdict.” But such reasoning fails to
account for the jury instruction specifying that the three indecent
liberties charges were based only on the alleged touching of
Hernandez-Rivera’s penis, not his pubic area. Moreover, though
the definition of “indecent liberties” at the time of the commission
of the crimes did not yet expressly include the touching of a pubic
area, we think it highly unlikely that a jury would determine that

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State v. Hernandez-Rivera

Hernandez-Rivera’s actions would not be prohibited under the
earlier statute, that is, that him shoving Sadie’s hand down his
pants and causing her to touch his pubic area was not of equal
gravity to the touching of the anus, buttocks, or genitalia, either
directly or through clothing.

¶62 Because it would have been reasonable for Counsel to have
determined that these jury instructions, which specifically based
the indecent liberties charges on the touching of Hernandez-
Rivera “on his penis,” described conduct prohibited under either
version of the statutory scheme, we determine that Counsel did
not perform deficiently in approving them. Thus, this claim of
ineffective assistance of counsel also fails.

CONCLUSION

¶63 The district court neither erred by incorrectly applying rule
412 nor exceeded its broad discretion in balancing the probative
value and the risks of the Edmundo evidence under rule 403. And
the court’s refusal to allow impeachment questions to reach the
sexual details of the Edmundo encounter was not an abuse of
discretion. Finally, Counsel did not perform deficiently in failing
to push for further impeachment with the rule 412 evidence or in
approving the jury instruction defining the term “indecent
liberties.” We therefore affirm.

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