State v. Richey

2025 UT App 165

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TROY DEAN RICHEY,
Appellant.

Opinion
No. 20210565-CA
Filed November 13, 2025

Third District Court, West Jordan Department
The Honorable Matthew Bates
No. 201905436

Erick Grange, Attorney for Appellant
Derek E. Brown and Marian Decker,
Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Troy Dean Richey challenges his convictions of forcible
sodomy and two counts of voyeurism. On appeal, Richey raises
several ineffective assistance of counsel claims. Contemporaneous
with his appellate brief, Richey also filed a motion pursuant to
rule 23B of the Utah Rules of Appellate Procedure asking us to
remand this case to the district court for an evidentiary hearing to
develop additional record evidence to support his ineffective
assistance claims. We granted that request with respect to some of
those claims. Having considered both the appellate record and the
record developed on remand, we affirm Richey’s convictions.
State v. Richey

BACKGROUND 1

The Crimes

¶2 Richey met Sandy 2 on an online dating app in August 2017.
After their initial meeting in person, the pair became
“inseparable.” Sandy believed the two had “strong chemistry,”
and the relationship became sexual “rather quickly.”

¶3 At the time Sandy met Richey, she consumed alcohol only
“on occasion,” and she was “very proud of the fact that [she] had
never been drunk.” Richey would “often” bring alcohol with him,
which “was not a problem” to Sandy because she “enjoyed a good
glass of wine.”

¶4 In January 2018, after having a glass of wine at Richey’s
apartment, Sandy felt “a little strange”; she was “giddy, playful,”
and her “inhibitions were down.” Although Sandy had some
difficulty walking and was “wobbly,” she did not pass out and
was “aware” of what was going on. Sandy suspected Richey had
put something in her wine glass other than wine, so she asked him
multiple times throughout the night if he had done so. Richey
initially denied adding anything; however, after Sandy noticed
“residue in the bottom of the glass,” Richey admitted to adding
“a little vodka” to Sandy’s wine. Sandy told Richey that she did
not give him permission to add anything to her drink and that he
“shouldn’t have done that,” to which Richey responded, “It was
good for you. You enjoyed it.” Sandy decided to “let that go.”

1. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and we recite the facts accordingly. We
present conflicting evidence only when necessary to understand
issues raised on appeal.” State v. Popp, 2019 UT App 173, n.1, 453
P.3d 657 (quotation simplified).

2. A pseudonym.

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State v. Richey

¶5 In April 2018, Sandy found lesions on her labia. Prior to
this, she had observed lesions on Richey’s penis while performing
oral sex. When she asked Richey about the lesions, Richey said
that he had “nicked” himself shaving. Thereafter, Richey
accompanied Sandy to a doctor’s appointment where a lesion test
was performed. The test indicated that Sandy had herpes. Sandy
did not have herpes before dating Richey, and she had not had
sexual activity with other people since meeting Richey in August
2017. Although Richey was typically “very demanding” when it
came to oral sex, after receiving the positive test results, Sandy
told Richey “clearly” that she would no longer perform oral sex
on him and that “[i]t didn’t matter what he wanted.” After this
discussion, Richey “kind of gave in” because he knew Sandy was
“so disgusted.”

¶6 Soon after receiving the test results, Richey and Sandy’s
relationship changed “dramatically.” Sandy felt “betrayed” and
“disgusted” and “was afraid to have sex” with Richey. Sandy
decided to end the relationship.

¶7 After ending the relationship in April, Sandy continued to
talk to Richey because she “didn’t have anyone else to talk to,”
but their relationship “was very sporadic.” In December 2018, the
two began “talk[ing] more,” and Richey told Sandy that “he
wanted to try and start over.” Richey apologized “profusely” for
his past behavior, so Sandy “agreed to have a weekend to try to
start over.”

¶8 On Friday, December 14, 2018, Richey arrived at Sandy’s
house. Richey drove Sandy to dinner. The couple “had a lovely
dinner” together; although Sandy did not specifically remember
drinking alcohol at dinner, she believed that she “maybe had a
glass of wine.”

¶9 After dinner, Richey took Sandy to look at Christmas
lights. On the way, Richey stopped at a grocery store and
purchased eggnog. Richey then stopped at a gas station and
entered alone. When he returned to the car, he handed Sandy a

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twenty-four-ounce thermos full of heated eggnog. Richey knew
Sandy “loved eggnog,” and he was “excited” to give it to her so
that she would have something warm to drink while looking at
the lights. Sandy tasted the eggnog and thought it “tasted like
eggnog”; although “it was a little runny, . . . it was good.” Sandy
did not taste any alcohol, nor did Richey mention mixing
anything into the eggnog. Sandy drank all but “an ounce or two”
of the eggnog.

¶10 From the gas station, the couple drove to a drive-through
light display, where they spent approximately twenty minutes
looking at the lights. At that point, Sandy “started yawning” and
“feeling really tired.” Although the couple had planned to visit a
second light display, Richey proposed that they return to Sandy’s
house, to which Sandy agreed. Once at the house, they sat in the
front room next to the Christmas tree and talked. Richey
expressed “that he was grateful for the evening,” and he asked
Sandy to “just be open to let things happen.” Sandy agreed that it
had been a nice night. She also told Richey that she was “open”
but reminded him that she would “never” again perform oral sex
on him. Richey replied that he understood but again asked her “to
be open tonight.” Sandy agreed.

¶11 After about twenty minutes of talking in the front room,
Richey asked Sandy to move to her bedroom, and Sandy agreed.
Sandy was “open” to “sexual activity” and “intimacy” with
Richey—“except . . . oral sex”—“if [they] could get to that
connection.” As the two moved to the bedroom, Sandy was
feeling “extremely tired,” and her “head was very heavy.” As
Sandy leaned back on the pillows, Richey started to massage her
feet. Sandy “got really groggy,” so she asked Richey, “Can you do
that later?” Richey stopped massaging her feet, “crawled up to
where [Sandy’s] head was, and . . . started kissing [her].” At that
point, Sandy was fully clothed.

¶12 When Sandy awoke the next morning, she was “kind of
delirious,” “in a fog,” and “couldn’t see straight.” Her head “was
pounding,” and she was experiencing “extreme pain” in her

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lower back. Sandy had never felt like this after having a glass of
wine. Richey was not there, so Sandy texted him, asking where he
was. The following text chain ensued:

Sandy: Where are you?

I feel sick [Richey] and can barely
remember last night. What happened?

Why did you leave me Baby?

Richey: I had to run home honey I’ll be back in
45 minutes

I’ll call when I’m leaving

Sandy: Ok. I love you . . . SO much

Richey: I love you so much [Sandy]

Sandy: I’m excited to wake up to you. Hurry
back and wake your Sleeping Beauty
with a kiss.

Richey: Mmmmmmm

Sandy: My body misses you . . . come make
gentle love to me again.

(Ellipses in original.)

¶13 Richey did not return on Saturday morning. Later that
same day, Sandy decided to call a friend (Friend) for help because
she “knew something was wrong”—she “couldn’t function” and
her “head was spinning.” Sandy knew that “Richey had Ambien
and Xanax at his availability and he would use those sometimes
to overdo,” so she “assumed” that Richey had used those pills to
drug her. Friend observed that Sandy was “upset,” “crying,”

20210565-CA 5 2025 UT App 165
State v. Richey

“kind of confused,” “a little discombobulated,” and “visibly a
little groggy,” so he suggested that Sandy take a drug test. Sandy
agreed, so Friend drove her to a clinic to have the test performed.

¶14 Sandy tested negative for “[e]very standard drug” that
would normally be present in “a date-rape situation.” Sandy did
not request that the test screen for alcohol, however, because she
“had no reason to think alcohol would” affect her that way.

¶15 As the day progressed, Sandy began to have “flash[] back”
memories of “disturbing things” from the night before. Sandy
remembered that sometime after Richey started kissing her on the
bed, he “aggressive[ly]” put his fingers inside her. She also
remembered that Richey “straddl[ed]” her arm, pinning it down,
and proceeded to “shove his penis into [her] mouth” even though
“he knew [she] would never do that with him again.” Sandy
remembered attempting to fight Richey off using her hand that
was not pinned, and that she verbally told him “no.”

¶16 Sometime on Saturday afternoon, Sandy discovered that
Richey had left “flowers and a birthday card for someone else on
her table.” Sandy then confronted Richey by text: “So done with
your lies and deception. No wonder you had no suitcase. You had
other plans—to use me again and move on. . . . Sorry she had to
go without her flowers. #DespicableHumanBeing.” (Ellipsis in
original.)

¶17 By Saturday night, Sandy “was in a bad place.” She
concluded that, based on her memories of Richey “trying to shove
his penis into [her] mouth when he knew [she] would never do
that with him again,” she had been raped. She called a rape
hotline to ask about her rights as a victim. She also decided to
confront Richey again by text. Shortly before 9:00 p.m., she sent
Richey the following message: “It took awhile for the effects to
wear off [Richey], but my memory is coming back. I know what
you did to me last night.”

20210565-CA 6 2025 UT App 165
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The Investigation

¶18 On Monday morning, Sandy underwent a sexual-assault
examination. Sandy declined to tell the nurse examiner (Nurse)
the name of her assailant because she was “afraid” of Richey.
After the exam, Sandy reported the incident to the police. Sandy
“explained very clearly [to the police] . . . that [she] wanted
nothing to do with [Richey] ever again”; however, she agreed to
contact Richey again because the police “needed evidence” and
Sandy “wanted answers.”

¶19 To that end, Sandy recorded two phone calls with Richey:
one in January 2019 and another in February 2019. In the first call,
Sandy repeatedly asked Richey to explain what had happened on
the night in question. She told Richey that although she was
“practically unconscious,” she “remember[ed] [Richey]
straddling [her] face” despite the fact that Richey had “promised
[he] would never try oral sex on [her] again.” Sandy also asked
Richey if he had put anything in the eggnog or if he had filmed
any part of the evening. Richey adamantly denied doing either.

¶20 The second call (the pretext call) lasted for nearly an hour.
Throughout the pretext call, Sandy pressed Richey for
information about the incident. She told Richey that other than
kissing him, the only things she remembered from that night were
“traumatic things.” She elaborated that she experienced
“flashbacks” of Richey putting his “fingers inside [her]” and
“straddling [her] face and trying to put [his] penis in [her]
mouth.” Sandy made clear that while she “wasn’t ready for that,”
she had been “ready to be intimate with [Richey].”

¶21 After asking Richey multiple times what he had put in her
eggnog, Richey eventually admitted to adding “a whole pint of
Everclear” to the eggnog. Sandy expressed doubt that Everclear
could have “knocked [her] out,” and she also questioned how she
did not “feel the burn” or “taste [Everclear] at all” while she was
drinking the eggnog. Richey assured her that the eggnog masked
the taste. He also apologized, saying, “I’m sorry. I’m stupid.”

20210565-CA 7 2025 UT App 165
State v. Richey

¶22 Although Richey admitted that he had spiked the eggnog,
he continually disputed Sandy’s assertions that she had “pass[ed]
out.” Richey maintained that Sandy was “fully engaged” and that
he “would never ever take advantage of some[one] passed out.”
He claimed that “things started” when Sandy “went down on
[him].” Sandy disagreed, reminding Richey that he “knew that
[she] didn’t want to do that.” Richey again apologized, saying,
“I’m sorry for that night.”

¶23 In addition to discussing the assault, Sandy asked Richey
about the details of their January 2018 date, including whether
Richey had put anything in her wine that night and whether
Richey had recorded them having sex. Richey denied adding
anything to Sandy’s drink (though that night he had admitted to
putting vodka in her wine); however, he admitted to filming
Sandy with a “concealed” camera without her permission. Richey
acknowledged that filming Sandy “was wrong” and that he
“should have” told her.

¶24 Toward the end of the pretext call, Sandy told Richey that
she no longer trusted him and that she did not believe that he
would not hurt her or her family. She explained, “I heard the way
you would yell at [your ex-girlfriend’s] family. I heard the things
you said. How vicious you get because of those damn Adderall
and the pills and the Ambien and all these things.” Sandy also told
Richey that he had already hurt her physically: “You hit me on
my back and then the other night when you grabbed my boob I
had to literally ice my breast.” Richey jokingly apologized, “Sorry,
milk shake; ice cream. I’m sorry.”

¶25 Richey was charged with forcible sodomy, object rape, and
two counts of voyeurism. 3

3. Richey was also charged with evidence tampering and two
counts of witness tampering. Those counts were severed before
trial and are not at issue in this appeal.

20210565-CA 8 2025 UT App 165
State v. Richey

The Preliminary Hearing

¶26 A preliminary hearing was held in July 2020. Sandy
testified that on the night of the incident, she “wasn’t opposed to
intimacy” with Richey but she was “very clear on certain things
[she] wasn’t going to do.” She explained that she was on the bed
with Richey and he was rubbing her feet when she started “to feel
really tired.” She then asked, “[C]an you do that after because I’m
feeling pretty tired. Let’s—you know, do that afterwards. That
can be the aftercare.” After this, Sandy asked Richey to “come up
and sit next to [her]” and they started kissing, but after this point,
Sandy’s memory was “spotty.” Sandy remembered Richey
“attempting to plunge into [her vagina] with his fingers.” She also
remembered Richey “kneeling next to [her,] shoving his penis . . .
in [her] mouth.” Sandy “fought him,” told him “[n]o,” and
“shoved him back.”

¶27 Sandy testified that after the incident she sent Richey a text
message where she called Richey a “sick predator” and claimed
that he drugged and raped her. Richey’s counsel (Counsel) asked
Sandy to clarify the date and time of the text message. Sandy
initially thought the message was sent two days after the incident
but then located the message in her phone and clarified that the
message was sent about a month after the incident.

¶28 Sandy also discussed her relationship with Richey between
their April 2018 breakup and the December 2018 incident. On
direct examination, she admitted that “there easily could have
been” sexual activity during that time. And on cross-examination,
she agreed with Counsel’s statement that “there could have been
some sexual activity” during that time.

¶29 The State moved to admit two segments of the pretext call.
Counsel objected on the ground that he did not want the
statements on the call “selectively edited by the State.” He argued
that the State had “presented [Richey’s statements] as some kind
of admission,” but when considered in “the context of the entire
call,” the statements were merely Richey “trying to pacify

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[Sandy].” The State did not oppose admitting the pretext call in its
entirety.

The Trial

¶30 The State called four witnesses at trial: Friend, Nurse, a
forensic nurse, and Sandy. Friend testified consistently with the
account above. Nurse testified about performing a sexual assault
examination on Sandy and her report of the examination. Nurse
stated that during the exam she discovered a sore on Sandy’s
cervix that would not have been caused by “normal sexual
intercourse”; however, Nurse also acknowledged there was no
way to tell exactly when the injury had occurred. The forensic
nurse testified about the general effects that alcohol has on the
body.

¶31 Sandy also testified consistently with the above. In
addition, she read for the jury the text messages sent to Richey the
day after the incident as well as the message sent about a month
later calling him a “sick predator.” When reading the morning-
after messages, Sandy did not read the final message in the
exchange—“My body misses you . . . come make gentle love to
me again.”—because it was “cut off” in the exhibit. (Ellipsis in
original.) And Sandy claimed that she sent the “sick predator”
message on the Sunday after the incident. Counsel elected not to
cross-examine Sandy.

¶32 The State admitted four audio recordings that Sandy had
made without Richey’s knowledge, one of which was the pretext
call where Richey admitted to having filmed Sandy during their
January 2018 date with a “concealed” camera and where Sandy
accused Richey of domestic violence and substance abuse. In
addition, the State introduced two videos that Richey had
recorded of him and Sandy having sex to support the two
voyeurism charges.

¶33 In closing argument, Counsel argued that the charges
against Richey were based solely on Sandy’s “bald allegation”

20210565-CA 10 2025 UT App 165
State v. Richey

and lacked evidentiary support. He posited that Sandy came up
with the false “narrative” after Richey did not return to her house
on the morning after the assault. On rebuttal, the prosecutor
countered that the lack of “independent witnesses” was because
sex crimes “are committed in secrecy.” The prosecutor also
asserted that Sandy did not remember what had happened to her
in the morning when she first awoke but that, “[a]s the morning
progresse[d], because of the trauma and because of the huge
amount of alcohol she was given secretly, the memories start[ed]
to come back to her.”

¶34 The jury convicted Richey of forcible sodomy and both
counts of voyeurism but acquitted him on the object rape charge.
Richey timely appealed his convictions. Contemporaneous with
the filing of his appellate brief, Richey also filed a motion
pursuant to rule 23B of the Utah Rules of Appellate Procedure
asking us to remand this case to the district court for an
evidentiary hearing to develop additional record evidence related
to several ineffective assistance of counsel claims. We granted that
request with respect to some of those claims. The rule 23B court
held a two-day evidentiary hearing and subsequently entered
findings of fact addressing the various issues on which we
granted remand. We recount the relevant rule 23B findings when
those issues are addressed below.

ISSUES AND STANDARDS OF REVIEW

¶35 Richey argues Counsel provided ineffective assistance in
multiple ways related to Sandy’s testimony, the prosecutor’s
closing argument, and the admission of the pretext call. The
claims Richey has “raised for the first time on appeal” present
questions of law that we review for correctness. State v. Wright,
2021 UT App 7, ¶ 26, 481 P.3d 479 (quotation simplified). And “for
the ineffective assistance claims that were subject to the rule 23B
remand, we defer to the trial court’s findings of fact.” Id.
(quotation simplified).

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State v. Richey

ANALYSIS

I. Ineffective Assistance of Counsel

¶36 Richey asserts twelve total claims of ineffective assistance
of counsel. Of these claims, nine were raised in Richey’s direct
appeal. The remaining three claims were the subject of the rule
23B remand.

¶37 To prevail on a claim of ineffective assistance of counsel, a
defendant must satisfy the two-prong test articulated in Strickland
v. Washington, 466 U.S. 668 (1984), which requires the defendant
to show (1) “that counsel’s performance was deficient” and
(2) “that the deficient performance prejudiced the defense.” Id. at
687. “A defendant’s inability to establish either element defeats a
claim for ineffective assistance of counsel.” State v. Wright, 2021
UT App 7, ¶ 52, 481 P.3d 479 (quotation simplified).

¶38 To prove deficient performance under the first Strickland
prong, Richey must show that Counsel’s actions “fell below an
objective standard of reasonableness.” 466 U.S. at 688. “It is not
enough for the defendant to simply point to some strategy other
than the one that counsel employed that looks superior given the
actual results of trial.” Wright, 2021 UT App 7, ¶ 53 (quotation
simplified). Instead, Richey must overcome the “strong
presumption” that Counsel’s actions fell “within the wide range
of reasonable professional assistance.” Strickland, 466 U.S at 689.
“The court gives trial counsel wide latitude in making tactical
decisions and will not question such decisions unless there is no
reasonable basis supporting them.” State v. Clark, 2004 UT 25, ¶ 6,
89 P.3d 162 (quotation simplified). “Decisions as to what
witnesses to call, what objections to make, and by and large, what
defenses to interpose, are generally left to the professional
judgment of counsel.” Wright, 2021 UT App 7, ¶ 53 (quotation
simplified). And “[i]f it appears counsel’s actions could have been
intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance.” State v.
Ray, 2020 UT 12, ¶ 34, 469 P.3d 871.

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State v. Richey

¶39 To establish prejudice under the second Strickland prong,
Richey “must show that there is a reasonable probability that, but
for [C]ounsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
466 U.S. at 694.

¶40 Richey contends Counsel provided ineffective assistance
when he failed to (A) present important evidence or cross-
examine Sandy, (B) object to prosecutorial misconduct, and
(C) ask the court to exclude certain portions of the pretext call. We
address each in turn.

¶41 Before turning to our analysis of Richey’s claims, we
reiterate this court’s prior admonition that “[a]n ineffective
assistance of counsel claim is not an invitation to flyspeck the
record and, with the luxury of time and the benefit of hindsight,
identify ways in which counsel might have been even more
effective.” State v. Boyer, 2020 UT App 23, ¶ 65, 460 P.3d 569. And
we note that “an appellate court has discretion as to the nature
and extent of the opinions it renders and we need not address in
writing each and every argument, issue, or claim raised and
properly before us on appeal.” State v. Draper, 2024 UT App 152,
¶ 124, 560 P.3d 122 (quotation simplified).

A. Failure to Present Evidence or Cross-examine Sandy

¶42 Richey argues Counsel “was ineffective because he failed
to present important evidence or cross-examine [Sandy]—the
only witness to the alleged offense—even though [Counsel] had
evidence to show important inconsistencies in [Sandy’s]
testimony and corroborate Richey’s account.” Specifically, he
contends that Counsel should have presented evidence or cross-
examined Sandy on the following nine points: (1) Sandy and
Richey “were or easily could have been having consensual
intercourse during the months leading up to the incident,”
(2) Sandy “invited Richey to have consensual intercourse” the
night of the incident, (3) Sandy “wanted to have intercourse with

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Richey again the morning after” the incident, (4) Sandy “falsely
testified that she called Richey a predator two days after” the
incident, (5) Sandy “gave inconsistent statements about using
force to resist the alleged offense,” (6) Sandy’s “trial testimony
conflicted with her statement to [Nurse] that the two had
consensual intercourse,” (7) Sandy relied on Richey emotionally
after the incident, (8) Sandy was “looking forward to having
sexual intercourse with Richey” the night of the incident, and
(9) Sandy was not afraid of Richey. We address each of these in
turn.

1. Prior consensual intercourse

¶43 Richey contends Counsel rendered ineffective assistance
when he failed to present evidence or to cross-examine Sandy
about certain pre-trial statements Sandy made regarding her
relationship with Richey after they broke up in April 2018.

¶44 At trial, Sandy testified that she broke up with Richey after
she suspected that she contracted herpes from him. Sandy
explained that she felt “betrayed” and “disgusted” and “was
afraid to have sex” with Richey. Sandy also acknowledged that
after the two broke up, they continued to communicate
throughout that year because she “didn’t have anyone else to talk
to,” but she described their relationship as “very sporadic.”

¶45 Richey argues Counsel performed deficiently by failing to
cross-examine Sandy or otherwise introduce evidence of the
following statements that show she and Richey “likely were
having sexual intercourse during the months leading up to the
incident”: (1) Sandy’s statement to police that she “had
consensual sex approximately 3 times” with Richey between
April and October and (2) Sandy’s preliminary hearing testimony
that “there easily could have been” sexual activity during that
time. Richey argues this failure “allowed the jury to falsely believe
that [Sandy] and Richey’s relationship ended in April, that
[Sandy] was ‘afraid to have sex with him,’ and that the two rarely
talked until the alleged incident.” We disagree.

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¶46 As an initial matter, Richey accounts for only part of
Sandy’s trial testimony. Immediately after stating that her
relationship with Richey had been “very sporadic” from April to
December, Sandy testified that in December, their relationship
began “to change”: Richey “was trying really hard to reconnect,”
the two started “talk[ing] more,” and Sandy “agreed to have a
weekend to try to start over.” And Sandy later averred that she
was “open” to “sexual activity” and “intimacy” with Richey on
that weekend—“except . . . oral sex”—“if [they] could get to that
connection.” When considered as a whole, Sandy’s testimony left
no doubt that she and Richey were regularly communicating
during the time leading up to the incident. Moreover, it was clear
that Sandy was not “afraid to have sex” with Richey since she
explicitly stated that she was willing to do so during their
weekend “if [they] could get to that connection.”

¶47 Given that jurors heard Sandy was willing to engage in
sexual intercourse with Richey at the time of the incident, it was
reasonable for Counsel to conclude that there was little to be
gained from cross-examining Sandy about the possibility that she
either had or “easily could have” engaged in sexual activity with
Richey after they broke up but before the assault. Sandy
consistently maintained that after discovering that Richey had
likely given her herpes, she opposed oral sex, but she admitted to
being “open” to other “sexual activity.” Thus, had Counsel
questioned Sandy about her relationship with Richey between
April and October, it is likely that Sandy would have explained
that while she was afraid to have oral sex with Richey during this
time, she was not opposed to other sexual activity, including
intercourse. In that scenario, Sandy’s testimony would have little
to no impeachment value. But more importantly, such testimony
would have further emphasized Sandy’s vociferous aversion to
having oral sex with Richey, which is the act underlying the
forcible-sodomy charge. Given all this, we cannot say it was
objectively unreasonable to choose, and there appears to be a clear
strategic reason, to forgo cross-examining Sandy or otherwise
introducing these statements, and Counsel’s performance was
therefore not objectively deficient.

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2. Invitation for consensual sexual intercourse

¶48 Richey contends Counsel rendered ineffective assistance
for failing to present evidence or cross-examine Sandy on her
prior statements that she invited Richey to have consensual
intercourse on the night of the incident.

¶49 Sandy testified at trial that on the night of the incident,
Richey was massaging her feet in bed. Sandy “got really groggy,”
so she asked Richey, “Can you do that later?” Richey then
“crawled up to where [Sandy’s] head was, and he started kissing
[her].” Later, the pretext call wherein Sandy recounted this
conversation was played for the jury:

Sandy: I remember you kissing me when I
said you were rubbing my feet and
then I said, “Hey, you know, can you
do that after because that’s when I’m
going to need the intimacy?”

And you said, “Of course.” And you
moved up to be with me and you
kissed me.

Richey: On the couch?

Sandy: No, on the bed. We went to the
bedroom and you were massaging my
feet and then I said, “Hey, can you do
that afterward?”

And you said, “Of course.”

Richey: Oh, okay. After we made love, okay.

Sandy: Yeah, because I wanted the closeness
then.

20210565-CA 16 2025 UT App 165
State v. Richey

¶50 According to Richey, Sandy’s question “[C]an you do that
afterward?” constituted an invitation to have intercourse.
However, he argues that the evidence presented at trial was
“conflicting” and “left that fact ambiguous” and that Counsel
performed deficiently by failing to clarify the meaning behind
Sandy’s question by presenting evidence or cross-examining
Sandy about her prior statements on the matter. This claim fails
for the same reasons as the previous claim. Namely, Richey
narrowly focuses on but one aspect of Sandy’s testimony and
ignores that Sandy was clear that she was “open” to engaging in
sexual activity, “except . . . oral sex.” (Emphasis added.) Because
the jury was well aware of this fact, it was not unreasonable for
Counsel to forgo cross-examining Sandy about what she meant
when she asked that question. Indeed, had Counsel done so, and
even had Sandy testified that she was not only open to
intercourse, but also invited it, it is just as likely she would have
again emphasized her opposition to having oral sex with
Richey—the act underlying the forcible-sodomy charge. It was
thus a clear matter of strategy for Counsel not to pursue
additional explanation. And where a reasonable strategy exists,
Counsel has not performed deficiently. See State v. Ray, 2020 UT
12, ¶ 34, 469 P.3d 871.

3. Morning-after text messages

¶51 Richey argues Counsel rendered ineffective assistance for
failing to introduce evidence or impeach Sandy with her text
message to Richey the morning after the incident stating she
wanted to have sex “again.”

¶52 At trial the State submitted two exhibits containing
pictures of a text message conversation between Sandy and
Richey the morning after the incident, which Sandy was asked to
read aloud:

Sandy: Where are you?

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State v. Richey

I feel sick [Richey] and can barely
remember last night. What happened?

Why did you leave me Baby?

Richey: I had to run home honey I’ll be back in
45 minutes

I’ll call when I’m leaving

Sandy: Ok. I love you . . . SO much

Richey: I love you so much [Sandy]

Sandy: I’m excited to wake up to you. Hurry
back and wake your Sleeping Beauty
with a kiss.

Richey: Mmmmmmm

(Ellipsis in original.) After reading Richey’s message, Sandy
testified that the next message from her to Richey was “cut off” in
the exhibit. However, a copy of that message was included in the
police report: “My body misses you . . . come make gentle love to
me again.” (Ellipsis in original.)

¶53 Richey argues Counsel performed deficiently by not
presenting evidence of the final text message or cross-examining
Sandy on its contents because the evidence would have
impeached Sandy’s testimony and supported Richey’s defense
that all the sexual activity was consensual. In particular, he asserts
that, contrary to Sandy’s testimony at trial, the message showed
that (1) Sandy “remembered that morning that they had
intercourse the night before and that she wanted to do so again”
and (2) Sandy had exaggerated her physical symptoms (i.e., she
was “in a fog,” “couldn’t see straight,” and her head “was
pounding”) because “a person with those symptoms normally

20210565-CA 18 2025 UT App 165
State v. Richey

does not plan to engage in physical activities.” Neither argument
is availing.

¶54 As to the first claim, Richey again mischaracterizes Sandy’s
testimony. When asked about waking up the morning after the
incident, Sandy testified that “it took a bit” for her to remember
what had happened. She stated that “in the afternoon,” she
remembered that Richey had been “trying to shove his penis into
[her] mouth when he knew that [she] would never do that with
him again.” Sandy did not mention having intercourse, nor did
she deny doing so. Thus, properly viewed, a capable defense
attorney could reasonably conclude that the text message did not
contradict Sandy’s testimony and therefore could not be used to
impeach her. Moreover, given that Sandy was clear that she was
open to being intimate with Richey “if [they] could get to that
connection,” it was reasonable for Counsel to conclude that
asking Sandy about the text would neither contradict nor
undermine her testimony, because she had testified only that she
remembered the forcible sodomy later, not the consensual
intercourse.

¶55 Furthermore, as with Richey’s prior ineffective assistance
claims, Counsel had a legitimate tactical reason to not present the
text message. Sandy was “open” to intercourse, and indeed
expected intimacy on the night in question. But Sandy was clear
that she would not engage in oral sex. Thus, Counsel had to weigh
the risk of emphasizing that while Sandy might have consented
to intercourse either the night of the incident or the next morning,
she adamantly opposed having oral sex, which, again, is the act
underlying the forcible sodomy charge. See State v. Strain, 885 P.2d
810, 815 (Utah Ct. App. 1994) (stating that forgoing cross-
examination is a legitimate trial strategy to avoid giving a witness
the opportunity to “bolster[] his testimony with further detail”).

¶56 And as to Richey’s second claim regarding Sandy’s
physical symptoms, Counsel could have reasonably understood
that if asked about the message, Sandy’s explanation would not
impeach her. Notably, Sandy’s final text to Richey before the text

20210565-CA 19 2025 UT App 165
State v. Richey

that was cut off instructed him, “Hurry back and wake your
Sleeping Beauty with a kiss.” Counsel could have concluded that
even if Sandy was feeling unwell, she was planning on trying to
sleep it off and that she would engage in sexual activity with
Richey when she was feeling better. Moreover, Sandy specifically
asked for “gentle” love-making. Counsel could reasonably believe
that Sandy’s request was reflective of how she was feeling, and
that the text would not impeach Sandy.

¶57 For all these reasons, Counsel did not perform deficiently
in handling Sandy’s morning-after text messages.

4. “Sick predator” text message

¶58 Richey argues Counsel rendered ineffective assistance for
failing to introduce evidence or cross-examine Sandy on her
inaccurate testimony that she called Richey a “sick predator” two
days after the incident.

¶59 At trial, the State introduced a text message conversation
between Sandy and Richey where Sandy called Richey a “sick
predator” and claimed that he drugged and raped her. Sandy
testified that she sent the messages on Sunday—two days after the
incident—because she “believed [Richey] had drugged [her] and
raped [her].” However, at the preliminary hearing, where Sandy
had access to her phone, she confirmed that she sent that message
about a month after the charged assault. Counsel made no
attempt to expose this error or correct it.

¶60 Richey argues Counsel’s failure to present accurate
evidence to contradict Sandy’s inaccurate testimony or to cross-
examine Sandy constituted deficient performance because the
jury never heard the correct timing of the text messages. He
contends evidence of the timing is important because (1) “it
impeaches [Sandy’s] ability to remember the events surrounding
the alleged incident” and (2) it “calls into question whether
[Sandy’s] interactions with [Nurse] or the police altered and
solidified [Sandy’s] memory of the alleged incident.”

20210565-CA 20 2025 UT App 165
State v. Richey

¶61 We are not persuaded that Counsel’s failure to cross-
examine Sandy about the timing of the text message constituted
deficient performance. First, reasonable counsel could conclude
that questioning Sandy about the message would not have the
impeachment value that Richey now contends. The exchange at
trial in which the message was introduced was somewhat
ambiguous. The State had asked Sandy if she had been texting
Richey on Sunday, and she confirmed that she had. The State then
presented Sandy the exhibit with a picture of the text message.
The only date visible in the picture is “Sunday.” Sandy was then
asked again if she sent the text “[o]n Sunday,” to which she
replied, “On Sunday, yeah.” Given the nature of the exchange, it
was not unreasonable for Counsel to conclude that asking Sandy
to clarify the date would have negligible upside as it would
further emphasize the message. Counsel could reasonably believe
that Sandy’s incorrect testimony was the result of the confusing
exchange rather than her misremembering the event. This is
especially true where Counsel had previously asked her at the
preliminary hearing to clarify the date of the message and she had
willingly, and correctly, done so.

¶62 Second, the correct timing of the text does not suggest that
Sandy’s memories were “altered” or “solidified” from her
interactions with the police or Nurse. Critically, Sandy contacted
Friend the morning after the incident and expressed her concerns
that she had been drugged and raped. Later that day, Sandy went
to get a comprehensive drug test, and that evening, she called the
rape hotline. All of these actions were taken before she contacted
the police or underwent the sexual assault exam.

¶63 Accordingly, not confronting Sandy about the timing of the
“sick predator” text was not objectively unreasonable.

5. Resisting the assault

¶64 Richey contends Counsel rendered ineffective assistance
for failing to introduce or impeach Sandy with her statements to

20210565-CA 21 2025 UT App 165
State v. Richey

police and Nurse that “contradicted her trial testimony that she
resisted the alleged offense.”

¶65 Prior to trial, Sandy recounted the incident with Richey to
police and Nurse. Her statement to police was that she “recall[ed]
[Richey] kneeling over her attempting to put his penis in her
mouth, then she passed out again.” And her statement to Nurse
was that “she remembered [Richey] putting her in [an]
uncomfortable [position] and forcing himself in her mouth.” But
at trial, Sandy testified that she resisted the assault: “[Richey] was
shoving his penis into my mouth. . . . I fought him, . . . I pushed
him with my . . . hand.”

¶66 Richey argues that Sandy’s pre-trial statements were
inconsistent with her trial testimony in two ways: (1) neither pre-
trial statement mentions Sandy using force to resist the assault
and (2) Sandy told police that Richey was attempting to put his
penis into her mouth. Given these inconsistencies, Richey
contends Counsel performed deficiently by not impeaching
Sandy with her prior statements. He further contends that he was
prejudiced by Counsel’s failure because showing that Sandy’s
“account changed over time” would have “undermined” her
credibility.

¶67 Richey cannot demonstrate that Counsel performed
deficiently by not cross-examining Sandy about her allegedly
inconsistent statements for two main reasons. First, as with some
of Richey’s other claims, his appellate position relies on a nuanced
view of the evidence. While some may view Sandy’s descriptions
of how Richey put his penis into her mouth (i.e. “forcing,”
“attempting,” and “shoving”) as contradictory, others could
reasonably disagree.

¶68 Second, reasonable counsel could conclude that even if the
statements were contradictory, it would be more damaging than
helpful to question Sandy on the particulars. See State v. Arriaga,
2012 UT App 295, ¶ 21, 288 P.3d 588 (stating that not cross-
examining a victim is a reasonable strategy “to avoid rehashing

20210565-CA 22 2025 UT App 165
State v. Richey

the dirty details of the victim’s testimony in order to point out a
few minor inconsistencies here and there”). Sandy was consistent
that she had refused to have oral sex with Richey, including the
night of the incident, after discovering that he had likely given her
herpes. It was reasonable for Counsel to forgo questioning Sandy
about the manner in which Richey inserted his penis into her
mouth because doing so would have given Sandy the opportunity
to reiterate her aversion to oral sex—the conduct underlying the
forcible sodomy charge.

¶69 Thus, given that “[t]here are countless ways to provide
effective assistance in any given case” and “[e]ven the best
criminal defense attorneys would not defend a particular client in
the same way,” Strickland v. Washington, 466 U.S. 668, 689 (1984),
we are not persuaded that Counsel performed deficiently by not
attempting to cross-examine Sandy about her allegedly
inconsistent statements that she attempted to resist the assault.

6. Statements to Nurse

¶70 Richey argues Counsel rendered ineffective assistance for
failing to cross-examine and attempt to impeach Sandy with her
prior statements to Nurse that Sandy and Richey “had consensual
intercourse and that [Sandy] knew Richey had mixed the eggnog
with alcohol.”

¶71 Three days after the assault, Sandy underwent a sexual
assault examination performed by Nurse. As part of that
examination, Nurse asked Sandy for a “history” of the event. At
trial, Nurse testified that she prepared a report based on this
examination. She explained that the report was primarily a
summary of what she had been told, although there were a few
statements in Sandy’s “exact language,” which appeared in
quotations. Nurse read the report at trial:

The patient was on a date with a boyfriend.
She said she was trying to mend a relationship . . .
with him. Patient states they went out to a fancy

20210565-CA 23 2025 UT App 165
State v. Richey

dinner and were planning to go see the city
Christmas lights. The patient states they stopped at
a store and got an eggnog drink, then went to a gas
station to warm it up.

Patient states that he went in alone to mix the
drinks . . . and that he decided to go home to her
house. They started with consensual intercourse.
“Things got foggier” and she was unable to
remember what happened. Then she remembered
him putting her in an uncomfortable position and
forcing himself in her mouth. . . . “[H]e had been told
that was not to be done.”

When she woke up, she was in a weird
position and had pain in her left hip and lower back
area. He was gone.

Although Counsel briefly cross-examined Nurse, he did not
question her regarding this report, nor did he cross-examine
Sandy about her statements to Nurse.

¶72 Richey contends that Counsel performed deficiently by
failing to cross-examine Sandy about her prior statements to
Nurse that (1) Richey “went in alone to mix the drinks” and
(2) Sandy and Richey “started with consensual intercourse.”
According to Richey, these statements contradicted Sandy’s trial
testimony that she did not know the eggnog was spiked and that
she did not consent to sexual intercourse and Counsel should
have used them to impeach Sandy and undermine her credibility.

¶73 But reasonable counsel could have concluded that the
course of action Richey now proposes would not have been
prudent for multiple reasons. First, as with Richey’s other
arguments, his appellate position relies on a selective reading of
the testimony at issue. As recounted above, Nurse read the entire
examination report at trial. She explained, however, that the

20210565-CA 24 2025 UT App 165
State v. Richey

report was primarily her summary of Sandy’s statements, and
that the only direct statements made by Sandy were that “[t]hings
got foggier” and that “he had been told that was not to be done.”
Reasonable counsel could have concluded that, if presented with
the supposedly inconsistent statements Richey now identifies,
Sandy would clarify—and Nurse would reiterate—that those
statements were not in Sandy’s words. See State v. Strain, 885 P.2d
810, 816 (Utah Ct. App. 1994) (stating that the court could
“surmise several strategic reasons for limiting cross-examination”
of a witness: “avoiding the appearance of personal attacks upon
the murder victim or the murder victim’s mother, eliminating the
opportunity for re-emphasis of testimony, and preventing [the
witness] from adding further detail to or otherwise bolstering her
testimony”).

¶74 In any event, counsel acting “within the wide range of
reasonable professional assistance,” see Strickland, 466 U.S. at 689,
could reasonably conclude that questioning Sandy about the
statements summarized by Nurse would not be helpful because
Sandy could explain the statements in a way that would
neutralize any impeachment value and emphasize unfavorable
testimony. Richey claims that Sandy understood the eggnog had
alcohol in it because she reported that Richey “went in alone to
mix the drinks,” and “a ’mixed drink’ is understood as ‘an
alcoholic drink.’” While Richey may be correct in his definition of
a mixed drink, reasonable counsel could conclude that Sandy
would explain that she reached this conclusion after the assault,
when she began remembering the events of the night. And as for
the statement that “[t]hey started with consensual intercourse,”
Counsel could reasonably conclude that there was no need to
cross-examine Sandy on this fact. Indeed, the jury was already
aware that Sandy was open to intercourse with Richey “if [they]
could get to that connection.” And the jury was also equally aware
that Sandy was opposed to oral sex. Thus, even if the night
“started” with consensual sex, reasonable counsel could conclude
that Sandy would explain that she withdrew her consent the
moment Richey tried to shove his penis into her mouth, which
was the act underlying the forcible sodomy charge.

20210565-CA 25 2025 UT App 165
State v. Richey

¶75 Based on the foregoing reasons, we cannot conclude that
Counsel performed deficiently for not cross-examining Sandy
about her statements to Nurse.

7. Emotionally relying on Richey after the incident

¶76 Richey argues Counsel rendered ineffective assistance for
failing to introduce text messages between Sandy and Richey that
would have “impeach[ed] [Sandy’s] trial testimony that she only
communicated with Richey after the alleged incident to ‘get
answers.’” Richey claims the text messages show Sandy and
Richey “relying on each other emotionally” a week after the
assault and therefore Counsel should have used the messages to
impeach Sandy’s trial testimony and undermine her credibility as
a witness.

¶77 This claim was one issue remanded under rule 23B of the
Utah Rules of Appellate Procedure. The rule 23B court found that
the text messages were provided to Counsel in discovery before
trial. The court found that Counsel “reviewed various text-
messages in preparation for trial,” and Counsel “testified that if
the text-messages were provided to him, then he probably looked
at them.” And while Counsel testified that it “may have been
possible” for him to introduce the messages “without being
combative with [Sandy],” “the bigger consideration at trial was
whether [Sandy] realized whether she was drinking Everclear or
not.”

¶78 Regarding Counsel’s decision to not cross-examine Sandy,
the rule 23B court found that Counsel “decided not to cross-
examine [Sandy] at trial because he believed [Sandy] had said
everything the Defense needed her to say, he believed there was
nothing left to ask [Sandy], and he did not want to risk [Sandy]
recanting testimony that was favorable to the Defense.”
Moreover, Counsel’s “general practice [was] to not badger an
alleged victim in these types of cases.” Lastly, Counsel “testified
that he fully discussed the case and his strategies with Richey,”

20210565-CA 26 2025 UT App 165
State v. Richey

who, along with Counsel’s co-counsel, “agreed with th[e]
decision” not to cross-examine Sandy.

¶79 Based on the foregoing, Richey fails to prove that Counsel
performed deficiently in choosing not to cross-examine Sandy
about the post-assault text messages. When reviewing an
ineffective assistance claim, we “must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance,” and we also “reconstruct the
circumstances of counsel’s challenged conduct . . . from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689. For deficient
performance purposes, the “question is whether an attorney’s
representation amounted to incompetence under prevailing
professional norms, not whether it deviated from best practices or
most common custom.” State v. Wright, 2019 UT App 66, ¶ 30, 442
P.3d 1185 (quotation simplified).

¶80 Here, while the text messages certainly could have been
used in the manner advocated by Richey, and perhaps a different
lawyer would have asked Sandy about them, reasonable counsel
could have also decided against doing so. The rule 23B court’s
findings clearly illustrate that Counsel considered the messages
but ultimately decided—in agreement with Richey and co-
counsel—that using them would not be beneficial to Richey’s
case. This was a valid tactical decision given that Counsel believed
Sandy “had said everything the Defense needed her to say” and
because Counsel “did not want to risk [Sandy] recanting
testimony that was favorable to the Defense.”

8. Consensual sexual activity the night of the incident

¶81 Richey argues Counsel rendered ineffective assistance for
failing to introduce text messages that “support Richey’s account
that any sexual intercourse on the night of the alleged incident
was consensual.” Specifically, he contends Counsel performed
deficiently by not introducing certain pre-incident messages that
show Sandy was “looking forward to having sexual intercourse
with Richey” because these messages were “crucial” for the jury

20210565-CA 27 2025 UT App 165
State v. Richey

to determine what happened the night of the incident and they
could have impeached Sandy’s trial testimony that she was
“afraid to have sex with” Richey because he likely gave her
herpes.

¶82 This claim was the second issue remanded under rule 23B
of the Utah Rules of Appellate Procedure. Because Counsel’s
decision to not use these text messages did not differ from his
decision to not use the messages discussed in the prior section, we
conclude that this argument fails for the same reasons as
previously articulated. See supra ¶¶ 78–80.

¶83 Given Counsel’s explanations at the remand hearing, we
do not believe that the decision to forgo cross-examining Sandy
about her pre-incident texts to Richey was so unreasonable that it
constituted deficient performance.

9. Fear of Richey

¶84 Richey argues Counsel rendered ineffective assistance for
failing to present evidence that would have impeached Sandy’s
trial testimony that she was afraid of Richey.

¶85 After reporting the assault to police, Sandy was
interviewed by a detective. The interview was recorded on video
and lasted for over two hours. During the interview, Sandy told
the detective, “I told you that I was afraid of his background and
what he’d do. That’s all bull—that’s all baloney. . . . I’m not afraid
of him. . . . [H]e needs to be taken down.” However, at trial, when
asked by the State why she did not identify Richey as her assailant
when she talked to Nurse, Sandy said, “Because I was afraid of
him. He had threatened me many times if I ever crossed him,
they’d never find my body.” Counsel did not seek to introduce
Sandy’s video interview with the detective that seemingly
contradicted this prior statement.

¶86 Richey contends Counsel performed deficiently by not
introducing the video of Sandy’s statement that she was not afraid

20210565-CA 28 2025 UT App 165
State v. Richey

of Richey, because it would have impeached her trial testimony
and undermined her credibility. This claim was the final issue
remanded under rule 23B of the Utah Rules of Appellate
Procedure. The rule 23B court’s findings do not expressly address
the video other than to state that (1) a transcript of the portion of
the interview identified in the prior paragraph, along with the full
video interview, were submitted at the remand hearing; (2) the
full video interview was provided to Counsel in discovery; and
(3) co-counsel, who was not involved in preparing the case for
trial, did not review the discovery and was unaware of the video
statement before or during the trial.

¶87 As with Richey’s other extra-record claims, we cannot
conclude that Counsel performed deficiently by not using Sandy’s
statements in her police interview at trial. The rule 23B court’s
findings show that Counsel was aware of the video at the time of
the trial. Reasonable counsel could conclude that if questioned,
Sandy would explain her statement to the detective in a way that
would have both limited the impeachment value and reflected
poorly on Richey. Importantly, Richey fails to acknowledge the
larger context in which Sandy’s statement appeared. Immediately
before saying that her fear was “all baloney,” Sandy told the
detective that she had “been dealing with this idiot for a year and
a half” and said, “[W]hen I found out that he was hurting other
people, I was done. That’s it.” Counsel could construe Sandy’s
“baloney” statement as reflecting that she was willing to
overcome her fear of Richey so that he could be “taken down” and
no longer “hurt[] other people.” Emphasizing this fact would not
have helped Richey’s case, nor would it have been inconsistent
with Sandy’s trial testimony.

¶88 Because reasonable counsel could have decided against
introducing the video of Sandy’s interview at trial, Richey has
failed to prove that Counsel performed deficiently.

20210565-CA 29 2025 UT App 165
State v. Richey

B. Prosecutorial Misconduct

¶89 Richey argues Counsel rendered ineffective assistance for
failing to object or request a curative instruction after the
prosecutor allegedly engaged in misconduct by arguing matters
outside the evidence.

¶90 Counsel argued in closing that the charges against Richey
were based solely on Sandy’s “bald allegation.” He posited that
Sandy came up with the false “narrative” after Richey did not
return to her the morning after the assault. On rebuttal, the
prosecutor countered that the lack of “independent witnesses”
was due to the nature of the crime: sex crimes “are committed in
secrecy.” She also asserted that Sandy’s text messages illustrated
the manner in which Sandy had recalled the events of the night of
the incident:

[T]hese text messages that we provided to you, you
could sort of see the progression of [Sandy] realizing
what had . . . happened to her.

....

As the morning progresses, because of the
trauma and because of the huge amount of alcohol
she was given secretly, the memories start to come back
to her. That’s perfectly understandable.”

(Emphasis added.)

¶91 Richey argues the emphasized phrases consist of
“‘improper factual testimony’” because the prosecutor instructed
the jurors as an expert “that trauma prevented [Sandy] from
immediately remembering what occurred the night before.”
(Quoting State v. Thompson, 2014 UT App 14, ¶ 64, 318 P.3d 1221.)
He asserts that Counsel performed deficiently for not objecting to
the prosecutor’s statements. We disagree.

20210565-CA 30 2025 UT App 165
State v. Richey

¶92 “When we review an attorney’s failure to object to a
prosecutor’s statements during closing argument, the question is
not whether the prosecutor’s comments were proper, but whether
they were so improper that counsel’s only defensible choice was to
interrupt those comments with an objection.” State v. Houston,
2015 UT 40, ¶ 76, 353 P.3d 55 (quotation simplified). “Moreover,
the failure of defense counsel to object to statements made by a
prosecutor during the closing is a matter to which we attach
significance. It is not only a sign that what was said sounded less
exciting at trial than appellate counsel now would have it seem,
but it is also some indication that the tone and manner of the now
challenged aspect of the prosecutor’s argument were not unfairly
prejudicial.” State v. Haynes, 2025 UT App 75, ¶ 68, 571 P.3d 1197
(quotation simplified), cert. denied, Sep. 10, 2025 (No. 20250823).

¶93 Even if we were to agree with Richey that the prosecutor’s
statement was potentially improper, we fail to conclude that it
was so clearly improper as to leave Counsel no choice but to object.
As detailed above, the prosecutor’s statement was made in the
larger context of responding to Counsel’s argument that Sandy
had fabricated the story after Richey did not return to her the
morning after the assault. Throughout the trial, testimony was
introduced supporting that Sandy remembered “traumatic
things” that happened the night of the assault. Counsel could
have reasonably concluded that the prosecutor’s statement could
be understood as suggesting that the only things Sandy could
remember from the night of the assault were the traumatic things,
rather than “that trauma prevented [Sandy] from immediately
remembering.” And we must “attach significance” to the
possibility that Counsel decided not to object and thereby draw
attention to the interpretation that could be deemed improper. See
id. Given the potential multiple interpretations of the prosecutor’s
statement and in light of the evidence presented at trial, we
conclude that Counsel did not perform deficiently for not
objecting to the prosecutor’s statement.

20210565-CA 31 2025 UT App 165
State v. Richey

C. Pretext Call

¶94 Richey argues Counsel rendered ineffective assistance in
allowing the entire pretext call to be introduced into evidence.
Specifically, he contends that Counsel should not have allowed
the jury to consider two portions of the call that contained
(1) “inadmissible propensity evidence” that Richey had
previously filmed Sandy using a “concealed” camera and
(2) “irrelevant, unfairly prejudicial evidence” that Richey had
engaged in domestic violence and substance abuse. We address
each in turn.

1. Propensity evidence

¶95 Richey asserts that Counsel rendered ineffective assistance
for failing to object to a portion of the pretext call where Richey
admitted to filming Sandy with a “concealed” camera. He
contends that reasonable counsel would have objected to the
admission of the evidence under rule 404(b) of the Utah Rules of
Evidence and that Counsel’s failure to do so prejudiced Richey’s
defense because, without this evidence, the State had “little to no
evidence to convict Richey of either count of voyeurism.” This
claim fails for lack of deficient performance.

¶96 At the preliminary hearing, the State moved to admit two
segments of the fifty-plus minute pretext call: (1) a seventy-five
second segment where Sandy confronts Richey about secretly
spiking her wine before they engaged in sexual intercourse
during their January 2018 date and (2) an approximately five
minute segment where Richey admits to secretly spiking Sandy’s
eggnog with a pint of Everclear on the night of the assault.
Counsel objected on the ground that he did not want the
statements on the call “selectively edited by the State.” He argued
that the State had “presented [Richey’s statements] as some kind
of admission,” but when considered in “the context of the entire
call,” the statements were merely Richey “trying to pacify
[Sandy].” Counsel concluded, “[W]e say things for lots of
different reasons and . . . [con]text is necessary. . . . I understand

20210565-CA 32 2025 UT App 165
State v. Richey

50 minutes is a long time, but, . . . if they’re going to present
statements as if they’re admissions, it has to be in the full context
or it’s misleading.”

¶97 At trial, the pretext call was admitted in its entirety without
objection. Included in the middle of the fifty-plus minute call is a
two-second admission by Richey that he had filmed Sandy during
their January 2018 date with a “concealed” camera during sexual
activity. Counsel did not object or otherwise draw attention to this
statement. Then, in closing argument, Counsel relied heavily on
the pretext call to support the theory that Sandy had made up the
allegations against Richey after he did not return to her the
morning after the assault. Among other things, he argued that the
pretext call showed Sandy “trying to bait” Richey into saying that
he had spiked her drink but Richey “clearly doesn’t get what she’s
talking about.” Counsel also asserted that the pretext call included
statements by Sandy indicating she had consented to sexual
intercourse and that, months later, Richey was completely
unaware that Sandy had experienced any “traumatic things” on
the night in question. And Counsel reiterated that Sandy was
“fully engaged” in the sexual activity that night and that Richey
was adamant he would never “take advantage of some[one]
passed out.”

¶98 Now, Richey complains that Counsel should not have
allowed the jury to hear that he had previously used a
“concealed” camera during sex. Richey contends that the incident
he was referring to during the phone call was inadmissible rule
404(b) evidence of a prior wrong or other act because the incident
was not the incident recorded in either of the video exhibits the
State introduced at trial to support the voyeurism counts. Richey
bases this argument on the fact that during the pretext call, he tells
Sandy that he recorded her during their January 2018 date with
“a cell phone in his hand” but neither video exhibit shows Richey
also recording Sandy with a cell phone in his hand.

¶99 Richey’s argument fails to account for the entirety of the
pretext call. While he is correct that during the pretext call he

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State v. Richey

initially admits to filming Sandy with his cell phone while they
were “making love,” he later admits that he filmed “more than
just what [he] picked up with [his] phone and recorded.” And,
having reviewed the video exhibits, we are confident that
Richey’s subsequent description of the night is consistent with the
acts recorded in one of the videos. Given all this, Richey’s
admission to using a “concealed” camera was not rule 404(b)
evidence; rather, it was evidence supporting the charged conduct.
Consequently, any motion to exclude the evidence under rule
404(b) would have been futile, so Counsel was not deficient for
not moving to exclude it on this basis. See State v. Broadwater, 2024
UT App 184, ¶ 35, 562 P.3d 739 (“Because the decision not to
pursue a futile motion is almost always a sound trial strategy,
counsel’s failure to make a motion that would be futile if raised
does not constitute deficient performance.” (quotation
simplified)), cert. denied, 564 P.3d 959 (Utah 2025).

2. Evidence of domestic violence and substance abuse

¶100 Richey argues that Counsel rendered ineffective assistance
“for seeking to admit rather than exclude” a portion of the pretext
call where Sandy alleged that Richey had yelled at his ex-
girlfriend’s family members, abused pills, hit her on her back, and
“joked” when she confronted him about bruising her breast.
Unlike Richey’s admission to using a concealed camera—which
happened in the middle of the call—this exchange occurred at the
end of the call. Richey contends Counsel performed deficiently by
not moving to exclude the statements under rules 402, 403, and
404(b) of the Utah Rules of Evidence. He further contends that he
was prejudiced by Counsel’s failure because “the outcome of the
trial was a credibility determination” and “the jury’s knowledge
of Richey’s alleged domestic violence and substance abuse
undermined his credibility.” We need not consider whether
Counsel performed deficiently in electing to not end the pretext
call before Sandy’s allegations because Richey cannot establish
that he was prejudiced by Counsel’s decision.

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State v. Richey

¶101 “The demonstration of prejudice must be a demonstrable
reality, not simply a speculative matter.” State v. Bermejo, 2020 UT
App 142, ¶ 23, 476 P.3d 148 (quotation simplified). “While we
appreciate that the jury’s knowledge of a defendant’s history of
domestic violence can undermine the defendant’s credibility,”
State v. Gonzalez, 2021 UT App 135, ¶ 11, 501 P.3d 1205 (emphasis
added), Richey has pointed to nothing indicating that such was
the case here. Indeed, his entire argument on this point is limited
to the bald assertion that the jury’s knowledge of the alleged
domestic violence necessarily undermined his credibility. But we
fail to see how the statements with which Richey takes issue
“would have undermined his credibility any more than the
inferences the jurors likely made (or at least could have
reasonably made) by virtue of the fact that they participated in a
trial” where some of the charges at issue (object rape and forcible
sodomy) were much more severe than the alleged domestic
abuse. See id. This point is underscored by the fact that the entire
abuse allegation consisted of Sandy stating that Richey yelled at
his ex-girlfriend’s family members, “hit” her on her back, and
joked about a time he “grabbed” her breast. This evidence is
neither “graphic” nor “arresting,” United States v. Hands, 184 F.3d
1322, 1329 (11th Cir. 1999), and, even if true, it pales in comparison
to the charged conduct.

¶102 Lastly, when considered along with the other evidence
presented at trial, we think it unlikely that excluding Sandy’s
statements would have changed the evidentiary picture in a
meaningful way for two reasons. First, the pretext call was over
fifty minutes long. Sandy’s allegation, and Richey’s response,
were “fleeting, and the State did not emphasize or mention [them]
during the remainder of the proceedings.” Bermejo, 2020 UT App
142, ¶ 40; see also State v. Nunes, 2020 UT App 145, ¶ 23, 476 P.3d
172 (finding no prejudice where the witness’s improper testimony
“was relatively isolated”). Second, as specifically concerning the
substance abuse allegation, the pretext call was merely
cumulative of Sandy’s trial testimony. See State v. Jones, 2020 UT
App 31, ¶ 35, 462 P.3d 372 (“[W]here testimony is merely
cumulative, we are disinclined to find prejudice even when the

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State v. Richey

testimony was improperly admitted.”). On direct examination,
Sandy testified that she suspected she was drugged on the night
of the assault because “Richey had Ambien and Xanax at his
availability and he would use those sometimes to overdo.”
Counsel did not object to this testimony. Thus, because the
allegation of substance abuse in the pretext call did not offer
anything “new or additional” to the evidentiary picture, Richey
was not prejudiced by its admission. State v. Thomas, 777 P.2d 445,
450 (Utah 1989). 4

CONCLUSION

Richey has not established that he received constitutionally
ineffective assistance of counsel in any of the manners he asserts.
We accordingly affirm his convictions.

4. Richey also asks us to reverse under the cumulative error
doctrine. Under the cumulative error doctrine, we will reverse
“only if the cumulative effect of the several errors undermines our
confidence that a fair trial was had.” State v. Martinez-Castellanos,
2018 UT 46, ¶ 39, 428 P.3d 1038 (quotation simplified). We have
not identified any errors in this case, and for the one claim where
we have assumed error, we conclude that such error had no
potential for harm. See State v. Maestas, 2012 UT 46, ¶ 363, 299 P.3d
892. Consequently, the cumulative error doctrine does not apply.
See id. (stating that the cumulative error doctrine has no
application where “the claims are found on appeal to not
constitute error, or the errors are found to be so minor as to result
in no harm” (quotation simplified)).

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