State v. Flores

2024 UT App 195

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
SCOTT FLORES,
Appellant.

Opinion
No. 20220234-CA
Filed December 27, 2024

Fourth District Court, Provo Department
The Honorable Thomas Low
No. 201402844

Emily Adams, Freyja Johnson, and Melissa Jo
Townsend, Attorneys for Appellant
Sean D. Reyes and David A. Simpson,
Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.

MORTENSEN, Judge:

¶1 A jury convicted thirty-two-year-old Scott Flores of raping
fifteen-year-old Mary.1 On appeal, Flores claims the trial court
wrongly denied a motion for a new trial. Flores also brings claims
of ineffective assistance of counsel. We reject Flores’s claims of
error and ineffective assistance of counsel and affirm his
conviction.

1. A pseudonym.
State v. Flores

BACKGROUND 2

¶2 Mary began selling some of her old clothes on an app.
Flores contacted her through the app and arranged to purchase
some of the clothes. Mary gave Flores an address near her home
to meet, and the two exchanged clothes for payment a few times
without incident. Flores told Mary the clothes were for his sister,
who he claimed was the same age as Mary. In messages to Mary,
Flores said he was “originally from New York” and had been in
Utah for “like five months” and didn’t know many people. He
told Mary that his sister had also just moved to the area and
“didn’t really know anybody,” so he wanted Mary to meet her.
Mary agreed to meet his sister because she also didn’t know many
people and was “hoping to be friends” with his sister.

¶3 One evening about two weeks after Flores and Mary began
talking, the two arranged another clothing purchase. Flores
arrived in a van at the same location near Mary’s home. He told
Mary he wanted her to show the clothes to his sister. Mary opened
the van door expecting to see Flores’s sister but saw no one. Flores
told Mary that his sister “was just like 15 minutes up the street”
at her house and asked Mary if she wanted to go meet her. Though
a “little bit” worried, Mary got in the van. Mary was unfamiliar
with the area they drove through, but Flores told her they were
going to a nearby city where his sister lived.

¶4 On the drive, they made a stop at a gas station because
Flores said he wanted to buy his sister a drink. He asked if Mary
wanted anything, and she said she did not. After returning from
making his purchase, Flores drove to a house and parked. By this
time, it was dark outside. Flores and Mary talked in the van for

2. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly. We present
conflicting evidence only as necessary to understand issues raised
on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (cleaned
up).

20220234-CA 2 2024 UT App 195
State v. Flores

about five minutes before Mary asked where his sister was. He
responded, “Oh, she’s just inside.” Flores then got out of the van
and went behind the house.

¶5 After about ten minutes, Flores returned to the van without
his sister. When Mary asked where she was, Flores replied that
his sister “was eating dinner with her aunt” at a restaurant. He
told Mary that his sister would be “back any minute,” so they
decided to wait for her. After more waiting, Mary “wasn’t really
sure if [Fores’s sister] was even going to come” and told Flores she
needed to be home by a “certain time.”

¶6 Flores then began to make Mary feel “uncomfortable”
when he asked if she smoked marijuana, to which she replied that
she had but didn’t like “the way it made [her] feel.” He told her
that the marijuana he had would make her “calm” and wouldn’t
cause any harm. Mary declined, but Flores began smoking. Once
he finished, the two began talking again, and Flores asked Mary
if she was a “good kisser” and whether she “would show him,”
which made Mary “[r]eally uncomfortable.” She told him no and
that she had a boyfriend (Boyfriend).

¶7 Without Mary’s permission, Flores began touching her
breasts. Mary told him to stop, but he continued to touch her. She
tried to move “back as far as [she] could.” Mary testified that she
“felt like it was going to go really bad and there wasn’t really
much [she] could do” because she was in an unfamiliar place and
didn’t know “what he was capable of.” She “kind of aggressively
moved his hand” but did not use her “full force” because she was
scared. Flores moved closer to her and began rubbing her thighs
and then her vagina. Mary continued to try to move his hand
away. Flores then removed her pants and underwear and
continued touching her vagina. After pushing Mary’s legs open,
Flores removed his own pants and underwear, got on top of her,
and “put his penis inside” of her. Mary looked “[a]way, like
outside the window.” Flores was on top of her for “[m]aybe two
minutes” before he ejaculated, got off her, and removed a

20220234-CA 3 2024 UT App 195
State v. Flores

condom. Flores and Mary each put their clothes back on, and
Flores drove her home. Flores told Mary not to tell anyone. After
returning home, Mary “let [her] emotions go and started crying”
and then took a shower. She did not tell anyone what had
happened.

¶8 The next night, Mary met up with Boyfriend and told him
that “the guy [she] was selling clothes to [had] raped” her.
Boyfriend helped Mary call her mother (Mother) and the police.
Boyfriend also told his brother (Brother) what had happened.
Mary and Boyfriend said police told them they did not have
enough information about Flores or his van, so Mary, Boyfriend,
and Brother devised a plan to get it. Mary messaged Flores in the
app to meet her at a park. Brother instead went to the park to see
Flores, while Boyfriend and his mother took Mary to the hospital.

¶9 Flores arrived at the park, and Brother took a picture of
Flores’s license plate. Brother then sent the photo to Boyfriend,
who shared it with police.

¶10 At the hospital, Mary underwent an examination and
described the assault to a sexual assault nurse examiner (Nurse).
Mary described the incident as outlined above, except Nurse
testified that Mary told her that Flores “put his mouth on her
breasts.” As part of Nurse’s testimony, the State moved to admit,
and the court received, her report (Exhibit 15), which included a
summary of Mary’s description of the events. When asked about
her sexual history, Mary told Nurse that she and Boyfriend had
sex a day or two before the assault. Nurse found a small bruise
high on the inside of Mary’s left thigh. Nurse testified that she
does not see bruising in this area for a “routine pelvic exam”
because it is a well-protected area that women are unlikely to
bump. Nurse did not recall any genital injuries but testified that a
lack of such injuries was not unusual as they are only found in
“about 50 percent of cases.” She explained that Mary’s age and
sexual activity also decreased the chance of injury.

20220234-CA 4 2024 UT App 195
State v. Flores

¶11 Mary testified that in the time following the assault, it was
“hard to view [herself] the same and love [herself],” explaining
that it had always been difficult for her but it now felt
“impossible.” She struggled to go to school and work due to fear.
Boyfriend testified that since the assault, Mary appeared “more
depressed,” “didn’t want to eat,” didn’t want to “go to school,”
and cried “a lot.” Mother testified that after the assault, Mary was
showering four times a day because she “want[ed] him off of
[her].” She also testified that Mary began “ripping,” “scratching,”
and “clawing” at her skin trying to get “him off of her.”

¶12 About ten months after the assault, Mary unsuccessfully
attempted suicide by swallowing a “bunch of pills.” Mary left a
suicide note, discovered by Boyfriend, that stated,

I just couldn’t love myself I believe in god now
Hopefully I come Back as a person that doesn’t have
so many problems I’ll see Scott in Hell tho Fuck you
I H8 you I didn’t love myself B4 that and Now I can’t
ever learn How to. Fuck you.

Just before 5:00 p.m. the Friday before trial, the State filed a
motion to admit the note. The State argued that the note was
admissible because it corroborated Mary’s change in behavior.
Flores’s trial counsel (Counsel) objected because of the late
disclosure. The court determined that the note was admissible “to
show injury and . . . to corroborate that the harm occurred” but
ordered the parties to draft a jury instruction that the note should
be considered only as to whether it corroborated evidence of guilt
rather than “to arouse sympathy or pity.” Mary testified that the
“Scott” in her note referred to Flores. She also testified that what
“was going through [her] mind” when she attempted to take her
life was “what had happened and how the trauma stayed” with
her.

¶13 Because Mary was unfamiliar with the area Flores took her
on the night of the assault, she was unable to identify where it was

20220234-CA 5 2024 UT App 195
State v. Flores

for police. However, Mother testified that a few days after the
assault, she and Mary were driving when Mary “freaked out,”
said to turn around, and “started trying to grab the wheel.” She
explained that the gas station they had just passed was the one
Flores took her to. Police searched the gas station’s surveillance
cameras and obtained a receipt, which linked Flores to making a
purchase. After seeing a plumbing company logo on Flores’s
sweatshirt in the surveillance video, police contacted the
company owner and identified Flores. The owner also confirmed
that Flores worked for him in Utah from September 2014 until he
let him go in February 2018.

¶14 The investigation included DNA testing. The swab of
Mary’s vaginal vault came back with male DNA, but it was an
“insufficient quantity” to test. The swab of Mary’s pubic area
returned male DNA that matched Boyfriend. A forensic scientist
testified that the use of a condom “would reduce the chances of
finding DNA.”

¶15 Investigators also collected many of the messages Mary
and Flores sent to one another. With Mary’s assistance, this
information was provided through screenshots and a forensic
download of all the information on her cell phone. But it did not
include any information stored in the app. From the license plate
number, police also confirmed that Flores was the owner of the
van. A search of Flores’s known relatives revealed only a spouse
and no sister.

¶16 The State charged Flores with rape, object rape, and
forcible sexual abuse. At trial, the State argued that Flores had
used a “fictional” sister to “gain [Mary’s] trust,” “lure[] her away
from her house and sexually assault[] her.” The State emphasized
what it called the “powerful corroborative evidence” of Mary’s
change in behavior and pointed to her attempted suicide as “post-
corroborative behavior that she went through a traumatic event.”
The State told the jury that the suicide note by itself was “proof

20220234-CA 6 2024 UT App 195
State v. Flores

beyond a reasonable doubt” that the events occurred as Mary said
they did.

¶17 Counsel argued that Flores exercised no coercion or force
over Mary; instead, she voluntarily got in his van, and they drove
to the gas station. Counsel pointed out that Mary did not provide
police with screenshots of all her communications with Flores on
the app and subsequently deleted the app so that the conversation
“disappeared.” Counsel argued that there were discrepancies in
Mary’s story about the timing of events after leaving the gas
station, inviting the jury to look at Mary’s statement in Exhibit 15
during its deliberations. He further argued that it was physically
impossible for Flores to have had sex with Mary sitting in the
passenger seat. Counsel pointed out that the detective (Detective)
on the case testified that investigators narrowed down the
possible gas stations to one and asked Mary and Mother to go
confirm it was the right one, which directly conflicted with Mary’s
and Mother’s stories. Counsel emphasized that prior to these
events, Mary already suffered from depression and was seeing a
therapist. He reasoned that the description of the events leading
up to Boyfriend discovering the suicide note did not make sense,
which—in addition to the late disclosure of the note—indicated
that Mary and Boyfriend had fabricated the note to help the
State’s case. Counsel pointed the jury to the fact that Boyfriend
was glaring at Flores and testified that he loved Mary and “would
do anything for her, unconditionally.” Ultimately, Counsel
argued that Mary’s account of the assault was fabricated.

¶18 While Counsel alluded to the possibility that Flores would
testify during his opening statement, Flores ultimately did not
testify.

¶19 After deliberation, the jury convicted Flores on all three
charges. Flores obtained new counsel and filed a motion for a new
trial, in which he asserted that certain evidence should not have
been admitted at trial and that Counsel had provided ineffective
assistance by failing to object to the admission of this testimony

20220234-CA 7 2024 UT App 195
State v. Flores

and evidence. The trial court denied the motion, ruling that all the
arguments were “unpreserved” as they were not “raised during
trial.” The court also stated that “even were the merits of [Flores’s]
arguments addressed, the motion would still be denied” as the
related issues did not constitute errors and Counsel “was not
deficient for failing to raise them.”

ISSUES AND STANDARDS OF REVIEW

¶20 Flores raises several issues on appeal. First, Flores argues
that Counsel provided him with ineffective assistance by failing
to object to (1) “multiple pieces of inadmissible hearsay evidence,”
(2) the State submitting evidence of Mary’s behavioral changes
and attempted suicide, and (3) “Exhibit 15 going back to the jury
room during deliberations.” When, as here, ineffective assistance
of counsel claims were raised below in a motion for a new trial,
Flores’s claims present a mixed question of fact and law, and “we
defer to the trial court’s findings of fact, but review its application
of the appropriate legal principles to its factual findings for
correctness.” State v. Tippets, 2021 UT App 137, ¶ 18, 501 P.3d 570
(cleaned up).

¶21 Next, Flores argues that the trial court erred in denying his
motion for a new trial. “Our review of a trial court’s decision to
grant or deny a motion for a new trial is two-fold.” Senkosky v.
Bistro 412 LLC, 2022 UT App 58, ¶ 21, 512 P.3d 477. We first
“evaluate the trial court’s determination of whether an error
occurred that may require retrial.” Id. If the trial court’s decision
of whether an error existed required it to make a factual
determination, we afford deference to the court’s ruling. Id. If the
decision did not require a factual determination, we review the
court’s ruling for correctness. Id. “Second, we review the court’s
determination of whether the alleged error was harmful for an
abuse of discretion.” Id.

20220234-CA 8 2024 UT App 195
State v. Flores

ANALYSIS

I. Ineffective Assistance of Counsel

¶22 To bring a successful “ineffective assistance of counsel
claim, a defendant must meet the two-prong Strickland test: (1)
counsel’s performance was objectively deficient and (2) the
deficient performance resulted in prejudice.” State v. Fleming, 2019
UT App 181, ¶ 9, 454 P.3d 862 (citing Strickland v. Washington, 466
U.S. 668, 687–88 (1984)). “Because both prongs of the Strickland
test must be met to establish ineffective assistance of counsel, we
need not always address both prongs.” Id. (cleaned up).

¶23 The deficient performance prong requires a defendant to
“show that counsel’s representation fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 688. “A court
must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance,”
meaning that a defendant must overcome the presumption that
counsel’s action “might be considered sound trial strategy.” Id. at
689 (cleaned up).

¶24 The prejudice prong requires a defendant to show “that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” State v. Gonzalez, 2021 UT App 135, ¶ 8, 501 P.3d
1205 (cleaned up). “That is, the defendant’s showing must
undermine our confidence in the outcome.” Id. (cleaned up). The
impact of such alleged errors must “be a demonstrable reality.”
Id. (cleaned up).

¶25 Flores argues that Counsel was ineffective for failing to
object to (1) several pieces of alleged hearsay, (2) the introduction
of evidence of Mary’s behavioral changes and attempted suicide,
and (3) Exhibit 15 going into the jury room during deliberations.
We address each in turn.

20220234-CA 9 2024 UT App 195
State v. Flores

A. Alleged Hearsay

¶26 Hearsay is a “statement that . . . the declarant does not
make while testifying at the current trial” that “a party offers in
evidence to prove the truth of the matter asserted in the
statement.” Utah R. Evid. 801(c). “Hearsay is not admissible
except as provided” by statute or the Utah Rules of Evidence. Id.
R. 802.

¶27 Flores argues that Counsel provided ineffective assistance
by failing to object to inadmissible hearsay evidence from Mary,
Boyfriend, Mother, and Detective at trial. Flores argues that their
testimony informed the “jury through several witnesses that
[Mary] consistently told others that she had been raped and
inappropriately touched by” Flores, thus “bolster[ing] her
credibility.” Flores directs us to the following statements:

• Mary’s testimony that, on the day after the assault, she told
Boyfriend, “[T]he guy I was selling clothes to, raped me”;

• Boyfriend’s testimony that Mary told him, “[S]he met up
with some guy called Flores, that she went inside the car
‘cause she was [supposed] to meet someone, his sister or
something, and that she got raped”;

• Mother’s testimony in response to the State asking what
Mary “told” her, in which Mother stated, “I was told that
my little girl was raped by that man”;

• Mother’s testimony that Boyfriend and his mother told her
that Mary was “sexually assaulted by [Flores]”; and

• Detective’s testimony in response to the State asking what
Mary and Boyfriend “told” him, in which Detective
summarized Mary’s account of the rape by saying, “[Mary]
stated that [Flores] got out of the vehicle, walked behind
the shed and came back, sat back down in the vehicle with

20220234-CA 10 2024 UT App 195
State v. Flores

her, they were both in the front seat and began to rub her
thigh and she told him to stop. He then [lay] on top of her,
pulled her pants down even though she told me that she
was actively trying to pull her pants back up, telling him
stop, don’t do this, stop, I don’t want to do this, and he
would just respond with huh, or what? And then at that
point she said that he had raped her and then after that he
got off, took her back home . . . and told her not to tell
anyone what had happened.”

Because Flores fails to demonstrate ineffective assistance with
respect to this testimony for different reasons, we address the
challenged testimony of Mary, Boyfriend, and Mother separately
from that of Detective.

1. Testimony of Mary, Mother, and Boyfriend

¶28 In the recently issued opinion, State v. Garcia, 2024 UT App
38, 546 P.3d 990, cert. denied, 550 P.3d 997 (Utah 2024), our court
addressed a similar fact scenario to that at issue here—details of a
victim’s sexual abuse were repeated at trial by those to whom she
had earlier disclosed it. In Garcia, the victim’s mother and a police
detective testified at trial about the details of the abuse the victim
had disclosed to them. Id. ¶¶ 2, 13–14. After conviction, the
defendant argued that he received ineffective assistance when his
counsel failed to object to the mother’s and the detective’s
testimony regarding the victim’s out-of-court statements because
“competent counsel would have concluded that this testimony
was inadmissible hearsay.” Id. ¶ 37. In addressing the alleged
error, this court determined that “reasonable defense counsel
could have concluded that [certain statements] were not hearsay
because they were not offered for their truth” but instead “offered
only to explain” in that case “why [the mother] contacted the
police and why [the detective] conducted an investigation.” Id.
¶ 41. The court continued that even if it had concluded that the
witnesses’ “statements of the mere fact that [the minor victim]
disclosed the abuse to them were hearsay,” the court “could not

20220234-CA 11 2024 UT App 195
State v. Flores

say that such testimony was prejudicial” to the defendant because
a minor victim disclosing “alleged abuse to a family member and,
subsequently, to law enforcement is an essentially inescapable
inference that anyone would draw from the simple existence of
the criminal case itself.” Id.

¶29 The same reasoning applies here to Mary’s, Mother’s, and
Boyfriend’s challenged statements. Counsel could have
reasonably concluded that these statements were “not hearsay”
because they “were offered for purposes other than to prove the
truth of the matter asserted” and thus were “properly admitted at
trial.” State v. Olsen, 860 P.2d 332, 336 (Utah 1993). These
statements provided foundation and context for Mother’s and
Boyfriend’s testimony describing Mary’s emotional state after the
incident. That testimony would make sense only if Mother and
Boyfriend had been made aware of some of the details of the
incident and when it occurred. Moreover, Mary’s statements to
Boyfriend were admitted to explain why Boyfriend conducted
himself in the manner he did—taking Mary to the hospital,
observing Mary’s emotional state, obtaining Flores’s license plate
number. Again, these actions of Boyfriend would make sense only
if Mary had told Boyfriend that she had been harmed. Given these
circumstances, we conclude that Counsel did not perform
deficiently based on the reasonable conclusion that the challenged
statements, in light of our caselaw, did not constitute hearsay.

2. Testimony of Detective

¶30 Though law enforcement witnesses may provide
background information to explain their subsequent conduct
under the “so-called ‘police investigation exception’” to hearsay,
Detective’s testimony likely went too far. See State v. Valdez, 2021
UT App 13, ¶ 56, 482 P.3d 861. The “precise parameters of the
police investigation exception in Utah” have not been set forth. Id.
However, “lengthy narrative testimony” about what a person
reporting a sexual assault told police happened, like Detective’s
testimony here, is not admissible under the “police investigation

20220234-CA 12 2024 UT App 195
State v. Flores

exception.” Id. But even though this was the case, and even
assuming for purposes of the discussion that Counsel performed
deficiently by not objecting to Detective’s lengthy narrative, we
conclude that Flores was not prejudiced by Counsel’s failure to
object to Detective’s repetition of the information he had received
from Mary and Boyfriend.

¶31 “[W]here testimony is merely cumulative, we are
disinclined to find prejudice even when the testimony was
improperly admitted.” State v. Jones, 2020 UT App 31, ¶ 35, 462
P.3d 372. “This is so because cumulative testimony typically
doesn’t offer anything new or additional to the evidentiary
picture.” State v. Samples, 2022 UT App 125, ¶ 74, 521 P.3d 526
(cleaned up), cert. denied, 525 P.3d 1279 (Utah 2023); see also State
v. Soto, 2022 UT App 107, ¶ 27, 518 P.3d 157 (“[T]here is no
reasonable probability that the detective’s repetition of [the
victim’s] statements altered the outcome because [the victim]
testified at trial and recounted the same facts.”), cert. denied, 526
P.3d 827 (Utah 2022); State v. Thomas, 777 P.2d 445, 450 (Utah 1989)
(“We conclude that the trial court erred in allowing the officer to
testify to the full content of the interview. In view of the fact,
however, that the officer’s testimony was merely cumulative to
that already testified to by the victim, the error was harmless
. . . .”). Here, Detective’s testimony was merely a repetition of
Mary’s testimony and other properly admitted testimony from
Mother and Boyfriend. And Flores has failed to persuade us that
there is a reasonable probability that he would have received a
more favorable outcome if the jury had not heard this cumulative
testimony.

¶32 In sum, Flores’s ineffective assistance claim fails because an
objectively reasonable attorney could have chosen not to object to
the admission of Mary’s, Mother’s, and Boyfriend’s testimony.
And Flores’s ineffective assistance claim regarding Detective’s
testimony fails for lack of prejudice.

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State v. Flores

B. Mary’s Behavioral Change and Suicide Note

¶33 Flores argues that Counsel performed deficiently by not
objecting to the State submitting evidence of Mary’s changes in
behavior and attempted suicide, including the note “purportedly
written by [Mary], which was not disclosed to the defense until
the eve of trial.” Counsel did in fact object to the introduction of
Mary’s suicide attempt and note by arguing that the evidence was
untimely because the State didn’t disclose it until shortly before
trial, which gave Counsel no time to conduct “an investigation.”
The court overruled the objection and admitted the evidence but
ordered the parties to draft a jury instruction that the evidence
was to be considered only as potential corroboration of guilt
rather than to “arouse sympathy or pity.” However, Flores argues
that Counsel should have additionally objected under rules 104
and 403 of the Utah Rules of Evidence because the State “failed to
introduce sufficient evidence to support a finding by a
preponderance of the evidence that [Mary’s] purported
behavioral changes and attempted suicide corroborated the
alleged sexual assault.”

¶34 Flores contends that our precedent—which on numerous
occasions has upheld the admission of behavioral change
evidence in rape cases—is not applicable here because those cases
involved expert testimony and “the State did not use any expert
testimony to tie the incident to Mary’s attempted suicide 10
months after the incident occurred.” See, e.g., State v. Martin, 2017
UT 63, ¶¶ 22, 32, 423 P.3d 1254 (forensic interviewer); State v.
Sloan, 2003 UT App 170, ¶¶ 8, 25, 72 P.3d 138 (mental health
therapist). We disagree. Our caselaw is clear that behavioral
change evidence may be admissible—even without expert
testimony to support it—as “circumstantial evidence that the
alleged act occurred” where the central issue at trial is “whether
the abuse ever happened.” State v. Anderson, 2020 UT App 135,
¶ 26, 475 P.3d 967. For example, in Anderson our court determined
that trial counsel’s decision not to object to testimony from a
sexual abuse victim’s family members about his behavioral

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State v. Flores

changes was not unreasonable because the testimony “provided
circumstantial evidence to corroborate the victim’s testimony that
the abuse occurred.” Id. ¶¶ 25–26; accord State v. Dever, 2022 UT
App 35, ¶ 44, 508 P.3d 158 (holding that a mother’s testimony
regarding her daughter’s change in behavior after an alleged rape
was “sufficient to corroborate [the daughter’s] account”); State v.
Cosey, 873 P.2d 1177, 1182 (Utah Ct. App. 1994) (holding that
testimony from a mother about “a drastic change in the victim’s
behavior [was] relevant circumstantial evidence that a traumatic
experience such as rape” had occurred).

¶35 Thus, applying our state’s controlling caselaw, reasonable
counsel could have believed that any objection to this evidence
would have been futile. Accordingly, Counsel did not perform
deficiently by choosing not to object to admissible evidence of
Mary’s behavioral changes and attempted suicide and note.

C. Exhibit 15

¶36 Flores argues that Counsel was ineffective for not objecting
to the jury taking Exhibit 15 into the deliberation room. Exhibit 15
was the report Nurse compiled as part of her examination of
Mary. Exhibit 15 included Mary’s summary of the incident as
transcribed by Nurse. At the conclusion of the trial, the court
instructed the jury to consider “any exhibits admitted into
evidence” in its deliberations, which would have included Exhibit
15. Counsel made no objection.

¶37 Rule 17 of the Utah Rules of Criminal Procedures states,

Upon retiring for deliberation, the jury may take
with them . . . all exhibits which have been received
as evidence, except exhibits that should not, in the
opinion of the court, be in the possession of the jury,
such as exhibits of unusual size, weapons or
contraband.

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State v. Flores

Utah R. Crim. P. 17(k). The rule “expressly allows the jury to take
all exhibits back to deliberations except those which the court
decides in its discretion the jury should not have.” Wyatt v. State,
2021 UT 32, ¶ 19, 493 P.3d 621. Our supreme court has noted that
“transcripts of deposition testimony and of testimony given
under oath at a prior proceeding are not received as exhibits and
do not go back with the jury.” Id. ¶ 19 n.17. However, to reach its
determination that such transcripts are not allowed under rule 17,
the court emphasized that the rule is “detailed and specific” about
what items may go in the jury room—the rule explicitly includes
exhibits. Id. It was the “negative implication” that items not
included in the rule could not go in the jury room, which led to its
conclusion that transcripts of deposition testimony and other
testimony under oath from other proceedings were not allowed.
Id. The explicit rule language and our supreme court’s reasoning
alone bring us to the conclusion that it was well within the trial
court’s discretion to allow Exhibit 15 to go back with the jury. An
objectively reasonable attorney would know that and could
therefore reasonably decide not to object.

¶38 Flores tries to argue that Exhibit 15 should have been
objected to because it included the written account of Mary’s
description of the assault, thus “mimick[ing]” Mary’s “testimony
at trial.” Flores asserts that reasonable counsel would have
objected because Exhibit 15 was “effectively a transcript” of
Mary’s trial testimony. But Exhibit 15 was not a transcript, and an
objectively reasonable attorney would know that. The statement
was not deposition testimony, testimony given under oath, or a
statement made in a prior proceeding, and as such “there was no
reason for [Counsel] to object to [Exhibit 15] accompanying the
jury into its deliberations.” See State v. Green, 2023 UT 10, ¶ 110,
532 P.3d 930.

¶39 Furthermore, in closing argument, Counsel specifically
encouraged the jury three times to look at Exhibit 15. He asked the
jury to look at discrepancies between Mary’s statement in Exhibit

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State v. Flores

15 and her testimony in court. This reflected a specific strategy to
use Exhibit 15 to Flores’s benefit. See State v. Ray, 2020 UT 12, ¶ 34,
469 P.3d 871 (“If it appears counsel’s actions could have been
intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance.”).

¶40 Thus, Counsel did not perform deficiently when he chose
a sound trial strategy not to object to Exhibit 15, and Flores’s claim
fails.

II. Motion for a New Trial

¶41 Under rule 24 of the Utah Rules of Criminal Procedure, a
“court may . . . grant a new trial in the interest of justice if there is
any error or impropriety which had a substantial adverse effect
upon the rights of a party.” Utah R. Crim. P. 24(a).

¶42 Flores moved for a new trial on three grounds: (1) the
“State elicited multiple pieces of inadmissible hearsay evidence,”
(2) the “State’s evidence about changes in behavior and attempted
suicide was inadmissible,” and (3) the trial court erred in denying
Flores’s motion to present Mary’s Children’s Justice Center video.
In each instance, Flores attacked the admission of the evidence on
its merits, asserting trial court error and also making a claim that
Counsel provided constitutionally ineffective assistance. The trial
court denied the motion, ruling,

Because none of the arguments were raised
prior to or during trial, the court declines to exercise
its discretion to grant the motion for new trial. On
this basis alone, the motion will be denied.

Moreover, even were the merits of [Flores’s]
arguments addressed, the motion would still be
denied. The errors [Flores] identifies were not
errors, and [Counsel’s] performance was not

20220234-CA 17 2024 UT App 195
State v. Flores

deficient for failing to raise them. Therefore,
[Flores’s] rights were not adversely affected.

¶43 Flores argues that the trial court erred in determining that
his arguments were “unpreserved” because they were not “raised
prior to or during trial.” Flores contends that rule 24 has no
preservation requirement, which he asserts is an appellate
doctrine, not something applicable to the exercise of discretion in
a trial court. See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443
(“When a party fails to raise and argue an issue in the trial court, it
has failed to preserve the issue, and an appellate court will not
typically reach that issue absent a valid exception to
preservation.” (emphasis added)).

¶44 While Flores may be correct that rule 24 does not include a
formal preservation requirement, we nevertheless conclude that
the trial court acted within its discretion in denying the motion.
As the trial court explicitly stated, the putative lack of
preservation was not the only basis on which it declined to
exercise its discretion in denying the motion for the new trial. The
trial court stated that Flores’s motion would also be denied on the
merits of his arguments. Then it spent nearly seven pages of its
ruling and order analyzing and rejecting each of Flores’s
substantive arguments. Thus, aside from the question of whether
the trial court abused its discretion in determining that the motion
was untimely, we have no hesitancy in affirming the trial court’s
denial of Flores’s motion for a new trial on the merits as the court
did in State v. Johnson, 821 P.2d 1150 (Utah 1991). 3

3. When, as here, a trial court chooses to address the merits of an
issue it has determined to be waived, we will “consider the issue
on appeal” as being preserved and reviewable at the request of an
appellant. See State v. Johnson, 821 P.2d 1150, 1161 (Utah 1991)
(“Because the trial court addressed the corpus delicti issue fully
and did not rely on waiver, we consider the issue on appeal, even
(continued…)

20220234-CA 18 2024 UT App 195
State v. Flores

¶45 Regarding the Mother’s and Boyfriend’s testimony, it was
admissible for the same reasons we identified above. See supra
¶¶ 28–29. Accordingly, the trial court did not err in concluding
that Mary’s disclosures to Mother and Boyfriend were properly
admitted at trial and denying Flores’s motion for a new trial on
this ground. And as we pointed out above, the challenged
testimony of the Detective was cumulative of other properly
admitted testimony. See supra ¶¶ 30–31. Thus, any error that
accompanied its admission was harmless to Flores—at least
Flores has not persuaded us that allowing Detective to testify to
the extent he did regarding the details of the rape Mary divulged
to him had any appreciable impact on the outcome of the verdict.
As our rules dictate, “No error in either the admission or the
exclusion of evidence . . . is ground for granting a new trial or
otherwise disturbing a judgment or order, unless refusal to take
such action appears to the court inconsistent with substantial
justice. The court at every stage of the proceeding must disregard
any error or defect in the proceeding which does not affect the
substantial rights of the parties.” Utah R. Civ. P. 61. And a new
trial may be granted for an “irregularity in the proceedings of the
court . . . by which a party was prevented from having a fair trial.”
Id. R. 59(a)(1). Given that Detective’s challenged testimony was
merely cumulative of properly admitted testimony, we fail to see
how Flores was deprived of a fair trial such that the trial court
erred in denying his motion for a new trial.

¶46 Regarding evidence about changes in Mary’s behavior and
her attempted suicide, as we pointed out above, our caselaw is
clear that behavioral change evidence may be admissible to
corroborate that an alleged act occurred—even without expert
testimony to support it. See supra ¶ 34. Accordingly, the trial court
did not err in denying Flores’s motion for a new trial on this basis.

though trial counsel failed to properly preserve it as required by
Utah Rule of Evidence 103(a)(1).”); see also State v. Pinder, 2005 UT
15, ¶ 49 n.7, 114 P.3d 551.

20220234-CA 19 2024 UT App 195
State v. Flores

¶47 The final grounds on which Flores moved for a new trial
was that he should have been allowed to present Mary’s
Children’s Justice Center interview because it contained evidence
that would have provided an alternative explanation for Mary’s
behavioral changes—that she had been sexually abused before by
someone other than Flores—and this evidence would have aided
in his defense. The trial court found this argument was without
merit because Flores presented no evidence that the prior abuse
resulted in a change in behavior. Specifically, the trial court
determined that this evidence was properly excluded under rule
412 of the Utah Rules of Evidence because Flores could not
“proffer a weighty interest that would be significantly
undermined by the application of the rule” and because
establishing “an alternate source” of Mary’s “psychological
injuries and emotional trauma” was “without foundation.” Flores
has not challenged this ruling on appeal and we detect no abuse
of discretion in the court’s determination that no error occurred.

CONCLUSION

¶48 We conclude that Counsel was not ineffective for choosing
not to object to allegedly inadmissible hearsay evidence, evidence
of Mary’s change in behavior and attempted suicide, or Exhibit
15’s presence in the jury room during deliberations. We also
determine that the trial court did not abuse its discretion in
denying Flores’s motion for a new trial.

¶49 Affirmed.

20220234-CA 20 2024 UT App 195