State v. Soto

2022 UT App 107

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
XAVIER SOTO,
Appellant.

Opinion
No. 20200272-CA
Filed September 1, 2022

Second District Court, Ogden Department
The Honorable Joseph M. Bean
No. 191900401

Emily Adams and Freyja Johnson,
Attorneys for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee

JUSTICE DIANA HAGEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
concurred. 1

HAGEN, Justice:

¶1 While at the house of a mutual friend, Trevor 2 saw Xavier
Soto fighting with Soto’s girlfriend and decided to intervene. To
break up the fight, Trevor moved between the arguing couple and

1. Justice Diana Hagen began her work on this case as a judge of
the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on this case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).

2. A pseudonym.
State v. Soto

hit Soto. Soto responded by chasing Trevor down an alley and
across a street leading to a patch of grass. The events that occurred
next were out of view of witnesses, but only Soto returned from
the alley while Trevor was left lying in the grass with two fatal
stab wounds. A jury convicted Soto of murdering Trevor. Soto
now appeals, arguing that his trial counsel rendered
constitutionally ineffective assistance by failing to object to certain
testimony at trial. Because Soto has not shown both deficient
performance and prejudice, we affirm.

BACKGROUND 3

The Stabbing

¶2 On the evening of February 2, 2019, between 9:30 and 10:00
p.m., Soto and his then-girlfriend went to visit a friend. The
friend’s house was just down the street from the apartment where
Trevor and his girlfriend, Sarah, 4 were staying. That night, Trevor
and Sarah had walked down to the friend’s house to use drugs.
Trevor did not know Soto, but he had known the friend for many
years.

¶3 While at the friend’s house, Soto and his girlfriend got into
an argument, and the friend’s mother asked them to leave. Soto
left, but his girlfriend stayed behind. Later, Soto returned to the
house and resumed the argument. The mother attempted to
separate the two by asking the girlfriend to accompany her on an
errand.

3. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v.
Makaya, 2020 UT App 152, n.2, 476 P.3d 1025 (cleaned up).

4. A pseudonym.

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State v. Soto

¶4 As the mother and the girlfriend attempted to leave in the
mother’s car, Soto kept arguing with the girlfriend. Outside the
house, the argument developed into a physical fight, which was
witnessed by the friend, his mother, and his uncle, as well as by
Trevor and Sarah. At one point, Soto had the girlfriend on the
ground and was straddling her. While Soto was on top of the
girlfriend, the uncle heard the mother say, “Get that knife away
from her throat.” Trevor asked the friend if he should intervene.
The friend told him to mind his own business and went back
inside the house. Sarah agreed and told Trevor to “worry about
his own relationship problems.” But Trevor ignored the advice,
dropped his coat and backpack, and approached the arguing
couple.

¶5 Trevor put himself between Soto and the girlfriend and hit
Soto. The girlfriend claimed that she did not see what happened
next because she looked away. But Sarah saw Soto immediately
chase Trevor down an alley. Sarah turned to the girlfriend and
said, “[Trevor] did that so you could get in the car and leave now.”
Soto’s girlfriend got into the mother’s car and they both left.

¶6 Sarah waited by herself for Trevor to return. After waiting
for a few minutes, she saw only Soto return to the friend’s house.
Thinking Trevor had “made it home,” Sarah walked back to the
apartment where they were staying to look for him. But upon
returning to the apartment, Sarah discovered that Trevor was not
there. Sarah walked back down the street toward the friend’s
house looking for Trevor when she saw that “the whole block was
lit with police.”

The Investigation

¶7 Shortly before 10:00 p.m., police responded to a report of
an unconscious person near the friend’s house. At the scene, the
officers found Trevor with a “traumatic injury” and took him to
the emergency room. Trevor died before arriving at the hospital

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from a “laceration to his back and a stab wound to his chest . . .
that penetrated [his] heart.”

¶8 Officers interviewed the witnesses at the house and
canvassed the neighborhood, looking for security cameras that
potentially could have recorded the stabbing. When Sarah spoke
with a detective, she was holding a beer in her hand and admitted
that she had smoked marijuana and used methamphetamine that
night. Sarah also told the detective that she had been hearing
voices that night, and she later admitted at trial that she had a
history of schizophrenia.

¶9 Sarah told police that she saw Soto chase Trevor down the
alley, but she doubted that she could identify Soto because she
had not known him prior to that night. Indeed, Sarah could not
correctly identify Soto in a photograph lineup. She later testified
that her focus had been on Trevor after he hit Soto and that she
had not focused on Soto to “be able to identify him later.”

¶10 During the canvass of the area, the officers recovered video
footage from a neighbor’s security camera that showed some of
what occurred the night of the murder. The video showed two
men running down an alley, one in front of the other. The man
behind could be seen making a stabbing motion toward the back
of the second man as they ran past the camera and out of view.
Then the video showed the man who made the stabbing motion
running in the opposite direction back toward the friend’s house,
alone. Trevor was found just out of view of the camera in the
direction in which the two men were running and from which
only one man returned.

¶11 After interviewing the witnesses and reviewing the
neighbor’s security camera footage, the officers obtained an arrest
warrant for Soto but were unable to locate him after several
attempts. On February 13, Soto turned himself in. Soto was
charged with murder, obstruction of justice, and possession or use
of a dangerous weapon by a restricted person.

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State v. Soto

The Trial and Challenged Testimony

¶12 Before trial, Soto moved to exclude or limit the video
footage from the neighbor’s security camera. Defense counsel
argued that the video footage’s “probative value is virtually
nonexistent” because it was in black and white with low
resolution and of such poor quality “that any identification as to
who [the two individuals] are, what they are wearing, or how
their movements are demonstrative of the sequence of events
would be entirely speculative.” The defense also argued that “the
added problem is that the State, as it did at the Preliminary
Hearing[,] will have officers testify as to what they speculate the
video shows,” which would be highly prejudicial. The district
court determined that the video was admissible and that defense
counsel could raise any objections at trial to officer testimony
commenting on the video.

¶13 At trial, all five of the eyewitnesses to the altercation—
Soto’s girlfriend, the friend, the mother, the uncle, and Sarah—
testified that Soto and his girlfriend had been arguing and that the
quarrel made its way outside the house. Although the girlfriend
testified that Soto did not assault her, the other witnesses testified
that the fight became physical. The mother testified that she saw
Soto grab the girlfriend by her hair and force her to the ground.
The uncle testified that he saw Soto get on top of the girlfriend,
yelling as he straddled her body. The uncle also testified that,
during the fight, he heard the mother shout, “Get that knife away
from her throat.” The mother was never asked at trial if she made
this statement or whether she saw Soto with a knife that night.

¶14 Sarah was the last eyewitness to testify at trial. The State
relied heavily on Sarah’s testimony, given that she was the only
person who saw Soto chase Trevor down the alley and was the
only person who saw Soto return alone a few minutes later. Sarah
testified that when Soto and his girlfriend were fighting, Trevor
asked the friend if he should intervene and was told to mind his

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own business—a sentiment Sarah had agreed with. Rather than
listen to Sarah and the friend, Trevor dropped his coat and
backpack and walked up to Soto. Sarah did not know “if he
nudged [Soto] in his chest or what happened. And then [Trevor]
took off running, and [Soto] took off running after [Trevor].”
Sarah explained that she waited for Trevor to return, but she saw
only Soto walk back up the alley and go back into the friend’s
house.

¶15 While on the stand, Sarah admitted that she had been
diagnosed with schizophrenia and depression, that she
sometimes hears voices, and that on the night of Trevor’s death
she had used marijuana and methamphetamine and had been
drinking alcohol.

¶16 Following Sarah’s testimony, the State called the detective
who had interviewed Sarah the night of the murder. The detective
explained to the jury the importance of Sarah’s observations and
how her information had been “able to connect the dots” from
where Trevor was found to where the initial altercation between
Trevor and Soto occurred. He recounted Sarah’s statements to
police that she had seen Soto chase Trevor down the alley and that
only Soto had returned, and he explained how those facts,
together with other witnesses’ statements about the altercation
between Soto and the girlfriend, helped him piece together the
events of that night. He also testified that Sarah’s statements—
made to him prior to knowing whether video evidence was
available—were consistent with the surveillance video later
recovered. Defense counsel did not object to the detective
repeating the statements Sarah made during her police interview,
nor did he object to the detective’s summation of his investigation.

¶17 During the detective’s testimony, the State played the
surveillance video for the jury while the detective narrated,
pausing portions of the video for the detective to explain what he
saw. The detective explained that two men were running up the

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street, with one man in front of the other. The detective testified:
“And what you will see specifically, the front figure is running.
The person in the back—individual in the back gets really, really
close to him. And you’re going to see their right hand make a
downward [stabbing] motion like this. You’ll see that very clearly
in there.” The detective also explained that moments after the two
men went out of view, one man returned and began running back
toward the friend’s house. The detective explained that the time
stamp on the video was “significant” because it was recorded just
before Trevor was found mortally wounded on February 2.

¶18 After narrating the video, and without objection from
defense counsel, the detective told the jury that the video aligned
with the information he received from Sarah in her initial
interview and with Sarah’s testimony at trial.

¶19 Near the end of its redirect examination, the State asked the
detective whether “there was a question that [the mother] asked
[him] during [his] interview with her that [he] felt was important
to note in [the] police report.” The detective responded that the
mother had asked, “Did [Soto] hurt him?” Defense counsel did
not object to the State’s question or the detective’s response.

¶20 For its part, the defense suggested, both in cross-
examination of various witnesses and in closing argument, that it
was the friend, not Soto, who had killed Trevor. The jury rejected
this defense and convicted Soto of murder. Soto appeals.

ISSUES AND STANDARD OF REVIEW

¶21 Soto contends that his trial counsel performed deficiently
when he failed to object to certain portions of the detective’s
testimony that amounted to either hearsay or improper opinion.
Soto also contends that his trial counsel performed deficiently
when he did not object to hearsay testimony repeating two out-
of-court statements by the mother. “When a claim of ineffective

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State v. Soto

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.” State v. Guerro, 2021 UT App 136, ¶ 25, 502 P.3d
338 (cleaned up).

ANALYSIS

¶22 “To prevail on an ineffective-assistance-of-counsel claim, a
defendant must show both that counsel’s performance was
objectively deficient, and a reasonable probability exists that but
for the deficient conduct defendant would have obtained a more
favorable outcome at trial.” State v. Reid, 2018 UT App 146, ¶ 19,
427 P.3d 1261 (cleaned up). “A defendant’s inability to establish
either element defeats a claim for ineffective assistance of
counsel.” Id.

¶23 We first address Soto’s contention that he received
ineffective assistance of counsel when his trial counsel failed to
object to the detective’s testimony recounting Sarah’s interview
statements, narrating the surveillance video, and opining on the
consistencies in the evidence. Next, we address Soto’s contention
that his counsel was ineffective in failing to object to either the
detective’s testimony recounting the mother’s question or to the
uncle’s testimony recounting the mother’s statement during the
altercation. We conclude that Soto was not prejudiced by the
detective’s testimony and therefore is not entitled to a new trial
based on ineffective assistance of counsel. And because a
reasonable attorney could conclude that the mother’s statements
were not hearsay or fell within an exception to the hearsay rule,
counsel did not perform deficiently by not raising an objection.

A. Soto Was Not Prejudiced by the Detective’s Testimony.

¶24 Soto contends that his trial counsel performed deficiently
by allowing the detective to testify “extensively about [Sarah’s]

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hearsay statements[] without objection” and by allowing the
detective to improperly comment “on the evidence, including
narrating the evidence for the jury, opining on [Sarah’s]
‘credibility’ and consistency, and opining on the weight of the
evidence.” Even assuming without deciding that counsel
performed deficiently in not objecting to the detective’s
testimony, Soto has not established a reasonable likelihood of a
different outcome had the detective’s allegedly improper
statements not been admitted.

¶25 “To evaluate prejudice under Strickland, ‘we assess
counterfactual scenarios—that is, what would have happened but
for the ineffective assistance.’” State v. Garcia-Flores, 2021 UT App
97, ¶ 27, 497 P.3d 847 (quoting Ross v. State, 2019 UT 48, ¶ 76, 448
P.3d 1203). Under a counterfactual analysis, “we consider
whether, in the absence of the improperly admitted evidence, the
likelihood of a different outcome is sufficiently high to undermine
our confidence in the verdict.” State v. Leech, 2020 UT App 116,
¶ 67, 473 P.3d 218; see also Garcia-Flores, 2021 UT App 97, ¶ 27
(“The counterfactual analysis requires us to consider a
hypothetical—an alternative universe in which the trial went off
without the error.” (cleaned up)). Here, we conclude that there is
no reasonable probability that the jury would have reached a
different result if the detective (1) had not narrated the video,
(2) had not repeated Sarah’s statements, and (3) had not
commented on the consistency of Sarah’s testimony or the
strength of the evidence.

¶26 First, there is no reasonable probability that the jury would
have reached a different result if the detective had not narrated
the video. Even without the detective’s narration, the consistency
between Sarah’s testimony and the video would have been
apparent to the jury. The video showed two people running down
an alley, one person making a stabbing motion, and the person
who made the stabbing motion returning alone. The jurors could
have compared this video evidence to Sarah’s testimony, in which

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she stated that the man who had been fighting with his girlfriend
chased Trevor down an alley and then returned alone. The
detective’s narration of the video and his observation that the
video was consistent with Sarah’s statements did not provide any
additional information that the jury would not have otherwise
had.

¶27 Second, there is no reasonable probability that the
detective’s repetition of Sarah’s statements altered the outcome
because Sarah testified at trial and recounted the same facts. When
an out-of-court declarant does not testify at trial, we are more
likely to conclude that the improper admission of that declarant’s
hearsay statements prejudiced the defense. See, e.g., State v. Ellis,
2018 UT 2, ¶ 44, 417 P.3d 86 (holding that the admission of hearsay
testimony was prejudicial where the declarant did not testify at
trial). But here, Sarah appeared as a witness at trial and testified
to each fact that was later repeated by the detective. Soto has
identified no information that the jury received from the detective
that it did not already have through Sarah’s sworn testimony.
There is no reasonable probability that allowing the detective to
repeat the statements that the jury had already heard directly
from Sarah had any impact on the outcome.

¶28 Third, there is no reasonable probability that the jury
would have questioned the credibility of Sarah’s testimony absent
the detective’s assertion that it was consistent with both the
statements Sarah made on the night of the murder and the other
evidence obtained after she made those statements. Soto argues
that without the alleged bolstering, the jury could have
discounted Sarah’s testimony because she had been using drugs,
was diagnosed with schizophrenia, had heard voices that night,
and could not identify Soto in a photograph lineup. But the
consistency between Sarah’s statements and the other evidence
would have been apparent to the jury even without the alleged
bolstering.

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State v. Soto

¶29 In addition, the jury was not required to credit Sarah’s
uncorroborated testimony in order to convict. The key points of
Sarah’s testimony were corroborated by multiple witnesses and
by the video evidence before the jury. Four eyewitnesses
confirmed Sarah’s testimony that Soto and his girlfriend were
fighting that night. The friend backed up Sarah’s testimony that
Trevor had wanted to break up the fight, and the girlfriend
confirmed Sarah’s testimony that Trevor decided to intervene by
striking Soto. The only relevant fact that was not corroborated by
another witness was Sarah’s testimony that she saw Soto chase
Trevor down the alley and that Soto later returned alone. But even
this testimony was substantiated by the video that showed two
people running down the alley at the time of the fight and one
person returning alone. The jury was not required to rely on
Sarah’s testimony alone to convict. We conclude that there is no
reasonable probability that the alleged bolstering by the detective
affected the jury’s verdict.

¶30 Under these circumstances, the evidentiary landscape
would not have materially changed if trial counsel had
successfully objected to the portions of the detective’s testimony
challenged on appeal. Because Soto has not shown a reasonable
probability that the result of the trial would have been different
but for his trial counsel’s alleged errors, we reject his claim of
ineffective assistance of counsel.

B. Trial Counsel Did Not Render Deficient Performance by
Not Objecting to the Mother’s Out-of-Court Statements.

¶31 Soto also contends trial counsel performed deficiently in
not objecting to the mother’s allegedly inadmissible out-of-court
statements. To demonstrate that counsel performed deficiently, a
defendant “must overcome the presumption that [c]ounsel’s
challenged actions and decisions fell ‘within the wide range of
reasonable professional assistance.’” State v. Guerro, 2021 UT App
136, ¶ 34, 502 P.3d 338 (quoting Strickland v. Washington, 466 U.S.

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668, 689 (1984)). Where “counsel could have reasonably believed
that an objection was futile,” counsel has not performed
deficiently. State v. Ring, 2018 UT 19, ¶¶ 43, 47, 424 P.3d 845; see
also State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise
futile objections does not constitute ineffective assistance of
counsel.”). A futile objection “necessarily fails both the deficiency
and prejudice prongs of the Strickland analysis because it is not
unreasonable for counsel to choose not to make [an objection] that
would not have been granted, and forgoing such [an objection]
does not prejudice the outcome.” See State v. Makaya, 2020 UT App
152, ¶ 9, 476 P.3d 1025; see also State v. Alzaga, 2015 UT App 133,
¶ 73, 352 P.3d 107 (“The failure of counsel to make motions or
objections which would be futile if raised does not constitute
ineffective assistance.” (cleaned up)).

¶32 Soto challenges two out-of-court statements by the mother
as inadmissible hearsay. First, Soto points to the detective’s
testimony that when he interviewed the mother, she asked, “Did
[Soto] hurt him?” Second, Soto points to the uncle’s testimony that
the mother said, “Get that knife away from her throat.” Because
trial counsel could have reasonably concluded that both
statements were admissible, trial counsel did not perform
deficiently in failing to object.

¶33 First, counsel reasonably could have determined that the
mother’s question to the detective—“Did [Soto] hurt him?”—was
not hearsay. Under rule 801 of the Utah Rules of Evidence,
hearsay is an out-of-court statement that “a party offers in
evidence to prove the truth of the matter asserted in the
statement.” Utah R. Evid. 801(c). Rule 801(a) defines “statement”
as “a person’s oral assertion, written assertion, or nonverbal
conduct, if the person intended it as an assertion.” As a general
matter, “questions . . . are commonly not hearsay, because they do
not make assertions capable of being proved true or false.” See
State v. Scott, 2017 UT App 74, ¶ 22, 397 P.3d 837, rev’d on other
grounds, 2020 UT 13, 462 P.3d 350; see also 30 Charles Alan Wright,

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Arthur R. Miller & Daniel D. Blinka, Federal Practice and Procedure
§ 6568 (2d ed. 2022) (“When one asks a question, one is usually
seeking information, not conveying it.”).

¶34 Here, counsel could have reasonably believed that the
mother’s question was merely an inquiry, seeking information
about what happened to Trevor, rather than an assertion.
Although “there may be instances where a party attempts to
admit hearsay by cloaking statements under the guise of a
question, the focus of the inquiry should be on what the declarant
intended to say, whether implied or directly asserted.” 30 Charles
Alan Wright, Arthur R. Miller & Jeffrey Bellin, Federal Practice and
Procedure § 6726 (2d ed. 2022) (cleaned up). Under the
circumstances of this case, it was at least arguable that the mother
did not ask the question with the intention of making an implied
assertion. Accordingly, it was reasonable for counsel to forgo an
objection to this question at trial. See Makaya, 2020 UT App 152,
¶ 9. 5

¶35 Second, Soto has not established that it was objectively
unreasonable for trial counsel not to object to the uncle’s
testimony that he heard the mother say, “Get that knife away from
her throat.” Trial counsel could have reasonably concluded that

5. Soto also argues that, in the context of rule 403 of the Utah Rules
of Evidence, the question had “minimal probative value” and was
outweighed by unfair prejudice. Although we agree that the
probative value of the mother’s statement was minimal, Soto has
not established that it was so unfairly prejudicial that trial
counsel’s only defensible choice was to object. See, e.g., State v.
Larabee, 2013 UT 70, ¶¶ 10, 26–33, 321 P.3d 1136 (concluding that,
in the context of a child sex abuse case where the trial court had
excluded all evidence of prior allegations of sexual abuse,
counsel’s failure to object to a prosecutor’s statements in closing
argument regarding prior allegations of sexual abuse was
“patently unreasonable” (cleaned up)).

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the statement fell within the present sense impression exception
to the hearsay rule. See Utah R. Evid. 803(1). That exception
applies to a “statement describing or explaining an event or
condition, made while or immediately after the declarant
perceived it.” Id. “The rationale underlying the present sense
impression exception is that substantial contemporaneity of event
and statement negate the likelihood of deliberate or conscious
misrepresentation.” State v. Johnson, 2022 UT 14, ¶ 26, 508 P.3d 100
(cleaned up).

¶36 According to the uncle, the mother made the challenged
statement while the fight between Soto and his girlfriend was
ongoing. Her contemporaneous statement purported to describe
what was happening as she perceived it. Because the statement
arguably fell within a recognized exception to the hearsay rule, it
was not unreasonable for counsel to conclude that it was
admissible and that any objection would be futile. See Makaya,
2020 UT App 152, ¶ 9.

CONCLUSION

¶37 We conclude that Soto was not prejudiced by his counsel’s
failure to object to the detective’s narration of the surveillance
video or testimony regarding Sarah’s statements. Even if an
objection to the testimony had been raised and sustained, all of
the information the detective provided would still have been
before the jury through other witness testimony and evidence. We
also conclude that Soto’s counsel did not perform deficiently by
not objecting to alleged hearsay. Reasonable counsel could have
concluded that an objection would have been futile because the
mother’s out-of-court statements either were not hearsay or fell
within an exception to the hearsay rule. Accordingly, we affirm
Soto’s conviction.

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