State v. Pontiff

2026 UT App 117
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
HUNTER J OSEPH PONTIFF ,
Appellant.
Opinion
No. 20240854-CA
Filed August 6, 2026
Fourth District Court, American Fork Department
The Honorable Roger W. Griffin
No. 221100305
Dallas B. Young and Jennifer Foresta,
Attorneys for Appellant
Derek E. Brown and Daniel L. Day,
Attorneys for Appellee
JUDGE R YAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. O RME and JOHN D. LUTHY concurred.
TENNEY, Judge:
¶1 	A short time after Hunter Pontiff and Amanda1 matched
on a dating app, they met up at Pontiff’s house. They ended up in
Pontiff’s 	bedroom, 	where 	they 	began 	consensually 	kissing.
Amanda later claimed that during the ensuing encounter, Pontiff
choked her, touched her clitoris, penetrated her vagina with his
fingers, forced her to give him oral sex, and inserted his penis into
her vagina, and she further claimed that Pontiff did these things
without her consent.
1. A pseudonym.

State v. Pontiff
20240854-CA 	2 	2026 UT App 117
¶2 	The 	State 	charged 	Pontiff 	with 	one 	count 	each 	of
aggravated assault, forcible sexual abuse, object rape, forcible
sodomy, and rape. The case went to trial, and at its close, the
jury convicted 	Pontiff 	of 	aggravated 	assault, 	forcible 	sexual
abuse, and object rape, but it acquitted him of forcible sodomy
and rape.
¶3 	Pontiff now appeals his convictions on several grounds.
For the reasons explained below, we rule as follows:
• 	First, we agree with Pontiff’s assertion that the State
presented insufficient evidence to support the aggravated
assault conviction.
• 	Second, we reject Pontiff’s assertion that he received
ineffective assistance because his trial counsel (Counsel)
did not file a motion to merge the forcible sexual abuse
and object rape charges.
• 	Third, 	we 	reject 	Pontiff’s 	assertion 	that 	he 	received
ineffective 	assistance 	because 	Counsel 	did 	not 	make
hearsay objections to portions of testimony from two
witnesses.
• 	Finally, we reject Pontiff’s assertion that he received
ineffective assistance because Counsel did not object to the
State’s use of a “blind expert.”
We accordingly vacate Pontiff’s aggravated assault conviction,
but we affirm his remaining convictions.

State v. Pontiff
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BACKGROUND2
Pontiff and Amanda Meet
¶4 	On the evening of October 11, 2021, Pontiff and Amanda
matched on a dating app that is targeted toward members of a
particular religion. After communicating briefly through the app,
Amanda gave Pontiff her phone number and they began texting.
While texting, Amanda agreed to go to Pontiff’s house, though
she told him that she had a homework assignment due at
midnight. For his part, Pontiff mentioned that part of him was
“hurt” and that he wanted “some physical touch.” Based on their
text exchange, Amanda’s expectation was that she would do
homework, after which the two would cuddle and watch TV.
¶5 	Pontiff lived with several roommates, and when Amanda
arrived, there was a group of people (none of whom Amanda
knew) on the main floor talking and watching TV. Pontiff invited
Amanda upstairs to his bedroom to work on her homework
because it was loud on the main floor. Amanda agreed, and when
the two were inside the bedroom, Pontiff closed the door.
¶6 	Pontiff offered Amanda a pair of his sweatpants so that she
would be more comfortable, and Amanda accepted the offer.
Pontiff stepped out of the room while Amanda changed. When he
returned, they sat on the bed and talked while Amanda worked
on her homework. At one point, Pontiff began stroking Amanda’s
thigh and buttocks while they were talking, but Amanda told him
she was uncomfortable with that. Pontiff said that was fine and
stopped. After Amanda finished her homework, Pontiff turned on
a TV show and gestured for her to cuddle with him, which she
2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Meik, 2024 UT App 46, n.2, 547 P.3d 878 (quotation simplified).

State v. Pontiff
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did. They watched the show for a while, at which point they
began consensually kissing.
Amanda’s Allegations
¶7 	The parties’ accounts of what happened next differ greatly.
Amanda’s allegations and the associated charges are as follows.
¶8 	Aggravated assault. Amanda said that while they were
kissing, Pontiff started becoming more aggressive, got on top of
her, and “placed his hand on [her] throat.” She said that he did
this “a few different times” and used “pressure” as he did.
Amanda later described this as Pontiff “choking” her. Amanda
said that the pressure Pontiff applied to her neck was “[n]othing
too hard, nothing too crazy at first” but that “it got a little more
aggressive” as time went on.
¶9 	Amanda said that while this was happening, Pontiff began
saying sexually demeaning things to her and that it was like he
was “a completely different person.” Amanda said that she was
initially confused and that she then went into a state of shock.
Amanda said that after the period in which Pontiff was choking
her, he tried to remove her shirt and the sweatpants. She said that
she pushed her shirt back down and resisted Pontiff’s efforts to
take the sweatpants off. She said that she asked Pontiff to stop
attempting to take her shirt off but that he did not stop.
¶10 	Forcible 	sexual 	abuse. 	Amanda 	said 	that 	Pontiff
eventually gave “up on trying to take [her] pants off,” at which
point he “started just putting his hands in [her] pants.” She said
that he then put his hand underneath her underwear and began
“rubbing [her] very hard in [her] genitals,” hurting her.
¶11 	Object rape. Amanda said that Pontiff then stuck a finger
inside her vagina and, as he began progressively inserting more
fingers, counted up as he told Amanda “how many fingers he was

State v. Pontiff
20240854-CA 	5 	2026 UT App 117
sticking in [her] vagina” until he eventually had all of his fingers
inside of her. She said that Pontiff then “move[d] his arm back and
forth inside and out of” her while making more sexual comments,
telling her at one point that “he wanted to make [her] bleed.”
Amanda said that she did begin bleeding and that she became
“[v]ery vocal” about the fact that she was in pain. Instead of
stopping, however, Pontiff told Amanda to be quiet, and he put a
pillow over her face to quiet her cries. Amanda eventually pulled
away and told Pontiff to stop.
¶12 	Forcible sodomy. Amanda said that around this point,
Pontiff took off his clothes. She said that seeing him nude
“heightened the shock” that she was already experiencing and
that her memory of the later events became “a lot more hazy.”
Amanda said that Pontiff then forced her to perform oral sex on
him.
¶13 	Rape. Amanda said that there was a brief lull during which
Pontiff watched TV and she retreated to the corner of the bed.
Amanda said that Pontiff then turned toward her, aggressively
pulled 	her 	on 	top 	of 	him, 	pulled 	the 	sweatpants 	and 	her
underwear down to mid-thigh, and pressed his penis against her
vagina. She later said that she “felt [the] pressure” of his penis
“going in” her vagina and that it had “passed the point of the
outside of [her] vagina.”
¶14 	Amanda said this act shook her out of her shocked state
and brought her back to a “sense of . . . clarity,” at which point she
knew what was going on and realized that she needed to get out
of the situation. Amanda said that she pulled away, got off the
bed, changed out of Pontiff’s sweatpants, and gathered her
belongings. She said that as she did this, Pontiff’s demeanor
changed back to how it had been at the beginning of the night.
Amanda said that Pontiff told her that she needed to calm down
and that everything was okay. Pontiff eventually opened the

State v. Pontiff
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bedroom door and led Amanda downstairs. Amanda said that he
didn’t walk her to her car because it was raining.
Amanda’s Discussions with Friend and Ex-Boyfriend
¶15 	After leaving Pontiff’s house, Amanda went straight to the
house of a friend (Friend). Friend later said that Amanda seemed
distraught and that it looked like Amanda had been crying.
Amanda relayed to Friend some of what had happened, though
Friend thought that Amanda’s account was somewhat jumbled.
Amanda then went home and removed her clothes to shower, and
she noticed blood on her underwear. After showering, she
changed clothes and got into bed. She spent most of the night
crying.
¶16 	The next morning, Amanda called an ex-boyfriend (Ex-
Boyfriend), and she later explained that she did so because she felt
comfortable talking to him about what had happened. Amanda
was “pretty hysterical” and “very emotional” on the phone, so Ex-
Boyfriend decided to go to her townhouse. When Ex-Boyfriend
arrived, Amanda was sitting on the couch staring into space, and
she seemed disoriented and confused. Amanda had been crying a
lot, was in a lot of pain, and had an ice pack on her genital area.
She later said that she was having some trouble breathing at this
point. She also recalled she was in constant pain, particularly in
her genital area.
¶17 	Amanda 	told 	Ex-Boyfriend 	what 	had 	happened 	the
previous night, which prompted Ex-Boyfriend to call a religious
leader who was also an attorney to ask him for advice. After
speaking with Ex-Boyfriend, the religious leader spoke with
Amanda on the phone. The religious leader then advised Ex-
Boyfriend to take Amanda to the hospital.

State v. Pontiff
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The Sexual Assault Examination
¶18 	Ex-Boyfriend drove Amanda to the hospital and then
waited for several hours while she was seen in the emergency
room. After Amanda gave a brief description to emergency room
personnel of what had happened, she was taken to a room for a
sexual 	assault 	examination. 	The 	medical 	staff 	collected 	her
underwear, which was not the same underwear she had been
wearing during the assault, and this underwear also had some
blood on it. The nurse examiner who conducted this examination
(Nurse) found petechiae on Amanda’s neck, which are small
bruises that are caused by external force to the neck and are
consistent with strangulation. Nurse found an acute abrasion on
Amanda’s labia that was consistent with the use of force and
digital penetration, as well as erythema (or redness) on Amanda’s
cervix.
¶19 	During this exam, Amanda did not report that she was
experiencing any throat “pain” (though she did report some
“tenderness” in her neck), nor did she report suffering from loss
of consciousness or loss of memory during the alleged assault.
While describing the events of the previous evening, Amanda told
Nurse that she “could still breathe” when Pontiff had his hand
around her neck, although she said it was “uncomfortable” to do
so. The next day, Nurse called Amanda to follow up, and Amanda
reported some coughing, a headache, and throat pain.
¶20 	After the sexual assault examination, two officers picked
up the sexual-assault evidence kit and asked Amanda if she
wanted to talk, but she declined. A deputy (Deputy) gave
Amanda his card and told her to contact them if she later wanted
to talk.

State v. Pontiff
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The Aftermath
¶21 	During the next few days, Friend observed bruises on
Amanda’s neck and legs, and Amanda complained to Friend that
she was struggling to breathe and that her neck was bothering her.
Over the next few weeks, Amanda told Ex-Boyfriend that her
“throat hurt a lot” and that she was having some trouble
breathing.
¶22 	About a week after the incident, Amanda saw her primary
care 	physician, 	and 	she 	relayed 	her 	version 	of 	the 	events
described above. The doctor ordered an x-ray of Amanda’s neck
because her throat was hurting and he was concerned that her
hyoid bone might be broken. The x-ray showed no acute trauma.
Three days later, Amanda met with her OB/GYN. During that
appointment, she disclosed the sexual abuse and reported feeling
throat and pelvic pain.
The Charges
¶23 	About a month after the alleged assault, Amanda gave a
statement 	to 	the 	police, 	and 	a 	detective 	(Detective) 	soon
interviewed 	Pontiff. 	The 	State 	later 	charged 	Pontiff 	with
aggravated assault, forcible sexual abuse, object rape, forcible
sodomy, and rape.
The State’s Case
¶24 	The case went to a jury trial. In its case-in-chief, the State
called 	several 	witnesses, 	including 	Amanda, 	Friend, 	Ex-
Boyfriend, 	Nurse, 	and 	various 	other 	medical 	providers. 	In
addition to testifying about the events recounted above, witnesses
gave the following testimonies that are particularly relevant to the
issues raised on appeal.

State v. Pontiff
20240854-CA 	9 	2026 UT App 117
¶25 	During 	Amanda’s 	direct 	examination, 	the 	prosecutor
asked whether it was “concerning to [her]” when Pontiff “started
to apply pressure to [her] throat.” Amanda responded, “I was just
more confused, but no, not necessarily.” The prosecutor then
asked Amanda to say “a little bit more about” that, to which
Amanda responded, “Well, I mean, I think it’s normal for humans
to be able to hold their breath and, like, not breathe for a couple
seconds, which is the manner he was holding my neck. It
definitely wasn’t comfortable, but it wasn’t something where I
couldn’t breathe.” On redirect, Amanda 	was directly asked
whether she had lost consciousness when Pontiff’s hand was on
her throat, to which she responded, “I didn’t lose consciousness.
I don’t remember losing consciousness.” Amanda also testified
that it “never crossed [her] mind” that Pontiff was choking her “to
hurt [her]” and that she “never felt like [her] life was in danger.”
And she further said that there was no point during the choking
when she “wasn’t still awake.”
¶26 	During his testimony, Ex-Boyfriend recounted Amanda’s
phone call to him the morning after the assault. During this
portion of his testimony, Ex-Boyfriend said that Amanda told
him, “I went with a guy last night, and he raped me.”
¶27 	During 	her 	testimony, 	Nurse 	said 	that 	petechiae 	are
“typically the result of application of force.” Nurse testified that
Amanda had said that her “[b]reathing was normal during [the]
assault” and that she felt “no changes” in her throat “during the
strangulation/suffocation.”
¶28 	During 	his 	testimony, 	Deputy 	talked 	about 	his
conversation with Amanda at the hospital after the sexual assault
examination, during which, as noted, Amanda had told him that
she did not want to report anything at that time. During this
exchange, the prosecutor asked whether Amanda ever said, “I
wasn’t raped” or “I wasn’t sexually assaulted,” to which Deputy
responded, “No.”

State v. Pontiff
20240854-CA 	10 	2026 UT App 117
¶29 	Finally, the State called a “blind expert” on sexual-assault
trauma (Expert).3 Expert testified that she did not know Amanda
and had not reviewed any materials or underlying testimony
related to this case. Expert then talked about various ways that
people 	respond 	to 	trauma 	generally 	and 	sexual 	assault 	in
particular. Expert explained that in response to trauma, the brain
often 	disconnects 	and 	operates 	on 	instinct, 	with 	automatic
responses including the fight, flight, freeze, and fawn responses.
Expert opined that the freeze and fawn responses are the most
common responses to a sexual assault. Expert explained that in
the context of sexual assault, freezing can look like going limp or
being 	dormant, 	while 	fawning 	involves 	leveraging 	the
relationship to try to reduce harm. Expert explained that acting in
a way to avoid embarrassment is part of the fawn response, and
Expert observed that religious beliefs can lead to submitting to
sexual 	assault 	and 	not 	reporting 	as 	a 	means 	of 	avoiding
humiliation or being cast out of the community. Expert also
discussed how trauma affects memory, wherein some events are
remembered in detail while others are forgotten. Expert explained
that it’s common for people to remember certain physical acts but
not recall things that happened between those acts.
The Lesser Included Offense Instruction and the Defense’s Motion for a
Directed Verdict
¶30 	After the State presented its case, and outside the presence
of the jury, the parties discussed jury instructions. Counsel asked
whether the State was presenting the forcible sexual abuse charge
3. The term “blind expert” is often used to refer to an expert who
is unaware of the facts of the case at hand but nevertheless offers
generalized testimony about relevant principles or concepts. See,
e.g., State v. Mendoza, 2025 UT App 140, ¶ 17 n.4, 585 P.3d 49; State
v. Garcia, 2025 UT App 119, ¶ 13, 576 P.3d 1111, cert. denied, 581
P.3d 555 (Utah 2025); State v. Francis, 2025 UT App 104, ¶ 77, 575
P.3d 1197.

State v. Pontiff
20240854-CA 	11 	2026 UT App 117
as a lesser included offense for the object rape charge or as a
separate offense. The State clarified that it was charging Pontiff
with forcible sexual abuse as “a separate count than object rape
for 	[the] 	touching 	prior 	to 	[digital] 	penetration.” 	Counsel
acknowledged this and made no further argument on the matter.
¶31 	During this same discussion, Counsel moved for a directed
verdict on all five charges, briefly addressing each charge in turn.
In response to the defense’s motion relating to the aggravated
assault charge, the State argued that during “the choking,” there
were “physical indications of restriction on blood flow,” which it
asserted was an “essential element[]” of that charge. The district
court denied Pontiff’s motion in its entirety, concluding that there
was “reasonably credible evidence, which, if believed, would
sustain a verdict” on each charge.
The Defense’s Case
¶32 	Pontiff testified on his own behalf. He agreed that he had
engaged in many (though, as explained shortly, not all) of the acts
Amanda had described, and in his view, Amanda consented to
everything that did happen that night. Pontiff explained that he
had completed sexual assault trainings in both college and in
conjunction with his work as a teacher, and he said that because
of 	what 	he 	had 	learned 	in 	those 	trainings, 	he 	had 	asked
permission before he did anything with Amanda.
¶33 	Addressing 	the 	alleged 	choking, 	Pontiff 	testified 	that
Amanda had agreed that he could put his hand on her neck while
they were kissing, and Pontiff insisted that he “didn’t ever choke
her.” Pontiff recalled telling Detective during his interview that
he was “not the type of person that chokes someone,” and he
agreed that he had told Detective that if he were “to do that, it
would be a caress.”

State v. Pontiff
20240854-CA 	12 	2026 UT App 117
¶34 	Pontiff testified that he and Amanda had kissed for about
thirty minutes and that there were times when they had been
grinding their genitals together with their clothes on. Pontiff said
that Amanda had agreed he could touch her breasts and vagina
over her clothes, that she had willingly touched his penis over his
clothes, and that she had agreed he could touch her vagina under
the sweatpants. Pontiff admitted that he had then “rub[bed] her
clitoris with a finger for a little bit,” after which he had “put one
and two fingers inside of her vagina.” Pontiff denied that he had
verbally counted as he inserted his fingers into her vagina, and
Pontiff denied ever telling her that he wanted to make her bleed.
He testified that he felt like Amanda had been “fully into
everything [they] did.”
¶35 	Pontiff testified that Amanda had then specifically agreed
to give him oral sex, and he said that after a “lull” in the
encounter, 	they 	engaged 	in 	more 	consensual 	kissing 	and
“grinding” with their clothes on. Pontiff testified that he never
pulled the sweatpants or Amanda’s underwear down, and he said
that it was “impossible” that he had inserted his penis into her
vagina because their “clothes never came off.”
¶36 	Several of Pontiff’s roommates who were home that night
testified on Pontiff’s behalf. A few of them testified that the walls
in the home were thin and that sound carries in the home. Each of
Pontiff’s roommates testified that they did not hear any unusual
noises coming from Pontiff’s bedroom on the evening in question.
The Closing Arguments
¶37 	In its closing, the State discussed the elements of each
charge and the testimony that it believed supported each charge.
¶38 	With respect to the aggravated assault charge, the State
acknowledged that it was required to prove that Pontiff had
impaired “the circulation of blood” or “restricted” Amanda’s

State v. Pontiff
20240854-CA 	13 	2026 UT App 117
breathing by “applying pressure to the neck or throat.” The State
asserted that Pontiff had done this by “grab[bing]” Amanda “by
the throat in the sense that it was hard, that it was forceful.” The
State also pointed to evidence that Amanda later had bruises on
her neck and had told others that she had throat pain and was
having trouble breathing. In the State’s view, all of this suggested
“[t]hat her breathing was restricted” while Pontiff was choking
her. In particular, the State argued that the petechiae on Amanda’s
neck were evidence that Pontiff used “enough pressure to restrict
blood flow.” During its closing argument, the State did not assert
that the force Pontiff used was required to be “likely to produce a
loss of consciousness,” which was an element of the crime under
the statute in effect at the time of the alleged assault. See Utah
Code § 76-5-103(1)(a)(iii), (1)(b)(ii)(A) (2021). This element was
included in the written closing jury instructions, however, and it
was read to the jury by the court.
¶39 	With respect to the forcible sexual abuse charge, the State
told jurors that this charge was based on “the outer touching” of
Amanda’s vagina—specifically, “the touching that occurred right
before [Pontiff] digitally penetrated [Amanda].” After briefly
discussing the evidence relating to that charge, the State told
jurors that the object rape charge was based on the “digital
penetration,” meaning Pontiff putting his fingers into Amanda’s
vagina.
¶40 	The State later told jurors that the forcible sodomy charge
was related to Amanda’s “mouth on [Pontiff’s] penis,” while the
rape charge was based on Amanda feeling “the pressure of his
penis” in her vagina and Pontiff putting his penis past “the labia[l]
folds, the outside of [her] vagina.”
¶41 	In the defense’s closing, Counsel framed the case as being
a credibility contest between Pontiff and Amanda, and he argued
that 	her 	testimony was not 	credible, 	that 	she 	had 	actually
consented to the charged acts, and that Pontiff’s testimony about

State v. Pontiff
20240854-CA 	14 	2026 UT App 117
the 	evening 	in 	question 	made 	“more 	sense.” 	Counsel 	also
discounted the testimony of Expert, arguing, “[Expert didn’t]
know anything. . . . What did the blind expert say? Well, this is
what happens generally speaking in trauma. They don’t know
anything. 	Nobody 	knows 	anything. 	[Amanda] 	and 	[Pontiff]
know. That’s it.”
The Verdict
¶42 	The jury delivered a mixed verdict, convicting Pontiff of
aggravated assault, forcible sexual abuse, and object rape, but
acquitting him of forcible sodomy and rape.
ISSUES AND STANDARDS OF REVIEW
¶43 	On appeal, Pontiff first argues that the district court erred
in denying his motion for a directed verdict on the aggravated
assault charge, claiming that there was insufficient evidence to
support conviction. When an appellant “challenges the denial of
a motion for directed verdict based on the sufficiency of the
evidence,” this court “will uphold the district court’s denial if,
when viewed in the light most favorable to the State, some
evidence exists from which a reasonable jury could find that the
elements of the crime have been proven beyond a reasonable
doubt.” State v. Holm, 2020 UT App 96, ¶ 16, 467 P.3d 934
(quotation simplified).
¶44 	Pontiff 	next 	argues that 	Counsel 	provided 	ineffective
assistance in three ways: (1) failing to request the merger of the
forcible sexual abuse and object rape charges; (2) failing to object
to 	certain 	statements 	from 	Deputy 	and 	Ex-Boyfriend; 	and
(3) failing to move to exclude Expert’s testimony. “When a claim
of ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective

State v. Pontiff
20240854-CA 	15 	2026 UT App 117
assistance of counsel as a matter of law.” State v. Popp, 2019 UT
App 173, ¶ 19, 453 P.3d 657 (quotation simplified).
ANALYSIS
I. The Directed Verdict Motion and Aggravated Assault
¶45 	Pontiff first argues that the district court erred in denying
his motion for a directed verdict on the aggravated assault charge.
In Pontiff’s view, there was insufficient evidence to show that he
“impeded [Amanda’s] breathing or circulation in a manner likely
to cause a loss of consciousness,” which was a required element.
We agree.
¶46 	“At the conclusion of the evidence by the prosecution, or
at the conclusion of all the evidence, the court may issue an order
dismissing . . . any count . . . upon the ground that the evidence is
not legally sufficient to establish the offense charged . . . .” Utah
R. Crim. P. 17(o). If a district court denies such a motion, this court
will affirm that denial on appeal “if, upon reviewing the evidence
and all inferences that can be reasonably drawn from it, we
conclude that some evidence exists from which a reasonable jury
could find that the elements of the crime had been proven beyond
a reasonable doubt.” State v. McCallie, 2016 UT App 4, ¶ 39, 369
P.3d 103 (quotation simplified). “An inference is a conclusion
reached 	by 	considering 	other 	facts 	and 	deducing 	a 	logical
consequence from them whereas speculation is the act or practice
of theorizing about matters over which there is no certain
knowledge.” State v. Patterson, 2017 UT App 194, ¶ 14, 407 P.3d
1002 (quotation simplified). “A jury draws a reasonable inference
if there is an evidentiary foundation to draw [upon] and support
the conclusion.” State v. Bowdrey, 2024 UT App 113, ¶ 36, 555 P.3d
367 (quotation simplified), cert. denied, 561 P.3d 688 (Utah 2024).
“In the case of speculation, however, there is no underlying
evidence to support the conclusion.” Id. (quotation simplified).

State v. Pontiff
20240854-CA 	16 	2026 UT App 117
¶47 	Under the version of the statute that was in effect at the
time of the incident, and under the particular elements from that
statute that were charged in this case, the State was required to
prove that Pontiff committed an act “with unlawful force or
violence, that cause[d] bodily injury to another or create[d] a
substantial risk of bodily injury to another,” and the State was
further required to prove that this act “impede[d] the breathing or
the circulation of blood of another person by the actor’s use of
unlawful force or violence that [was] likely to produce a loss of
consciousness by . . . applying pressure to the neck or throat of a
person.” Utah Code § 76-5-103(1)(a)(iii), (1)(b)(ii) (2021) (emphasis
added).4
¶48 	There was clearly evidence that Pontiff put his hand on
Amanda’s throat while the two were kissing. At trial, Amanda
testified that Pontiff had “placed his hand on [her] throat,” and
Pontiff testified that he had done so as well.
¶49 	There was also evidence showing that Pontiff had used
some force when doing so. Amanda testified that Pontiff had used
“pressure” when he put his hand on her throat, and she described
this as Pontiff “choking” her. At times, Amanda indicated that
this wasn’t severe force—she testified that the pressure Pontiff
had applied to her neck was “[n]othing too hard, nothing too
crazy at first,” but that “it got a little more aggressive” as time
went on. Nurse described finding petechiae on Amanda’s neck
during the examination the next day, and Nurse testified that this
is “typically the result of application of force.” And in the ensuing
4. We apply the version of the aggravated assault statute that was
in effect at the time of the offense. See State v. Winter, 2024 UT App
98, ¶ 20, 554 P.3d 355. And as discussed, the alleged crimes in this
case occurred in 2021. For clarity, we note that the aggravated
assault statute has since been amended, and under the current
statute, the “likely to produce a loss of consciousness” element
has been removed. See Utah Code § 76-5-103(2)(b)(ii).

State v. Pontiff
20240854-CA 	17 	2026 UT App 117
days, Amanda told various witnesses (including Friend, Ex-
Boyfriend, her primary care physician, and her OB/GYN) that she
was having pain in her throat or having trouble breathing. Taken
together, this was clearly enough to allow a jury to find that
Pontiff had used some force.
¶50 	And there was also some evidence suggesting that Pontiff
had used enough force to briefly impede Amanda’s breathing.
Amanda testified that she thought it was “normal for humans to
be able to hold their breath . . . for a couple seconds, which [was]
the manner he was holding [her] neck.” Though this testimony
could have been clearer, it was at least enough for a jury to
reasonably draw the inference that Pontiff had impaired her
breathing for a couple of seconds.5
¶51 	This issue thus turns on whether there was also some
evidence showing that the force Pontiff applied to Amanda’s neck
was “likely to produce a loss of consciousness,” which, again, was
a required element under the version of the statute that applied to
5. Pontiff points out that at various places in the record, Amanda
testified that she could breathe when his hand was on her throat.
For example, on the same page of the trial transcript where she
suggested she couldn’t breathe “for a couple seconds,” she also
testified that while it “definitely wasn’t comfortable, it wasn’t
something where [she] couldn’t breathe.” And Nurse testified
that her notes from the examination indicated that Amanda
reported her “[b]reathing was normal during [the] assault” and
that 	she 	felt 	“no 	changes” 	in 	her 	throat 	“during 	the
strangulation/suffocation.”
We take the point. But even so, a jury is permitted to
resolve internal conflicts in a witness’s testimony. See State v.
Black, 2015 UT App 30, ¶ 19, 344 P.3d 644. And we think the jury
here could reasonably resolve the conflict in Amanda’s testimony
by believing that Pontiff had stopped her breathing “for a couple
seconds” as she suggested.

State v. Pontiff
20240854-CA 	18 	2026 UT App 117
this case. See Utah Code § 76-5-103(1)(b)(ii) (2021). We see no such
evidence.
¶52 	At trial, when Amanda was directly asked whether she had
ever 	lost 	consciousness, 	she 	responded, 	“I 	didn’t 	lose
consciousness. I don’t remember losing consciousness,” and she
then said she had been “awake” during the choking portion of the
encounter. Nurse similarly testified that, during Amanda’s sexual
assault examination, Amanda had said that she did not lose
consciousness during the incident.
¶53 	True, the applicable statutory language didn’t require an
actual loss of consciousness, but it instead required proof that the
force used was likely to produce a loss of consciousness. Even so,
we see no evidence that could reasonably support such a finding.
During her direct examination, the State asked Amanda to
elaborate on what she meant when she said that Pontiff had
become “more aggressive with the choking.” Amanda responded
that she thought it was “normal for humans to be able to hold
their breath and, like, not breathe for a couple seconds, which is
the manner he was holding [her] neck.” She then testified that “[i]t
definitely wasn’t comfortable, but it wasn’t something where
[she] couldn’t breathe.” Later, Amanda testified that it “never
crossed [her] mind that he was” choking her “to hurt” her and
that she “never felt like [her] life was in danger.”
¶54 	These statements seem at odds with any suggestion that
Pontiff was using enough force to make it likely that Amanda
would suffer a loss of consciousness, and the State has pointed us
to no place in the record where Amanda directly said anything to
the contrary. Instead, the State argues that because there was
testimony suggesting that Pontiff had used enough force to cause
bruising and lingering pain in the following days, the jury could
infer from this testimony that the amount of force Pontiff used
was enough to satisfy this final element too.

State v. Pontiff
20240854-CA 	19 	2026 UT App 117
¶55 	But in our view, this argument falls on the wrong side of
the 	line 	between 	reasonable 	inference 	and 	impermissible
speculation. Even taking it as true that Pontiff used some force,
there was no evidentiary basis for a finding about how much force
(whether in terms of pressure or duration) would be needed to
make it likely to produce a loss of consciousness. In theory, we
think the State could have supported this element if Amanda had
said something indicating that she thought she was going to pass
out, but she never said anything like that. Or, alternatively, the
State could have called an expert to testify about what kinds of
force or what kinds of choking would make it likely that a person
would lose consciousness. But the State never put on such
testimony either. Without any such testimony, the jury was left to
speculate. And in our view, such speculation would have run
contrary to Amanda’s testimony that while Pontiff put some
pressure on her throat, it “wasn’t something where she couldn’t
breathe,” that she never felt like her life was in danger, and that it
never crossed her mind that he was trying to “hurt” her.
¶56 	When construing statutes, we must assume that when the
legislature speaks, it does so advisedly. And again, in the version
of the aggravated assault statute that controlled at the time, the
legislature required proof of not just choking, and not just choking
that would impair breathing, but instead of choking that impaired
breathing and was “likely to produce a loss of consciousness.” Id.
Because we see no evidence that could reasonably support a
finding that the final element was satisfied, we reverse the district
court’s denial of Pontiff’s motion for a directed verdict on the
aggravated assault charge, and we instead vacate his conviction
on that charge.
II. Ineffective Assistance and Merger
¶57 	Pontiff next argues that he received ineffective assistance
because Counsel did not file a motion seeking to merge the

State v. Pontiff
20240854-CA 	20 	2026 UT App 117
forcible sexual abuse charge with the object rape charge. We
disagree.6
A. 	Background law
¶58 	To prevail on an ineffective assistance claim, a defendant
must show that (1) trial counsel “performed deficiently” and
(2) “the deficient performance was prejudicial.” State v. Samples,
2022 UT App 125, ¶ 58, 521 P.3d 526. “A defendant’s inability to
establish either element defeats a claim for ineffective assistance
6. In his briefing, Pontiff repeatedly asserts that Counsel should
have made the motion at the close of the State’s case-in-chief, and
from there, he asserts that this motion would have resulted in the
forcible sexual abuse charge not going to the jury. For this reason,
consistent with Pontiff’s framing, we’ll refer to his claim as being
that Counsel should have made a motion to merge the charges.
For clarity, however, we note that under our caselaw, while
a defendant “can object that charges merge at any time, either
during trial, or following the conviction on a motion to vacate,”
the “court should rule on the objection only if the jury returns
convictions.” State v. Lopez, 2004 UT App 410, ¶ 9, 103 P.3d 153
(quotation simplified); see also State v. Cheek, 2015 UT App 243,
¶ 59, 361 P.3d 679 (noting that a district court “cannot assess
whether one charge merges into another until the prosecution has
presented its case and the jury has convicted the defendant of
multiple charges” (quotation simplified)); State v. Sanchez, 2015
UT App 27, ¶ 21, 344 P.3d 191 (noting that a district court’s
determination that merger should occur should be made “after
the jury has returned two pertinent convictions”). Indeed, as
explained more fully below, part of the merger test that is at issue
in this appeal turns on “the evidence actually presented at trial”
and “which of the statutory variations were proved,” State v.
Brooks, 908 P.2d 856, 861 (Utah 1995) (emphasis added), which
indicates that the district court should be concerned with the
evidence that supported the challenged convictions.

State v. Pontiff
20240854-CA 	21 	2026 UT App 117
of counsel.” State v. Miller, 2023 UT App 85, ¶ 25, 535 P.3d 390
(quotation simplified). “Because failure to establish either prong
of the test is fatal to an ineffective assistance of counsel claim,” we
can resolve a claim on the basis of either prong. State v. Popp, 2019
UT App 173, ¶ 25, 453 P.3d 657 (quotation simplified).
¶59 	To establish 	deficient 	performance, a defendant must
demonstrate that trial counsel’s “representation fell below an
objective standard of reasonableness.” State v. Sandoval, 2024 UT
App 186, ¶ 19, 562 P.3d 731 (quotation simplified). “The deficient
performance 	inquiry 	should 	focus 	on 	whether 	counsel’s
assistance was reasonable considering all the circumstances,” and
a court “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.” Id. (quotation simplified). “Because the decision not
to pursue a futile motion is almost always a sound trial strategy,”
the “failure to make a motion that would be futile if raised does
not constitute deficient performance.” State v. Broadwater, 2024 UT
App 184, ¶ 35, 562 P.3d 739 (quotation simplified), cert. denied, 564
P.3d 959 (Utah 2025).
¶60 	To establish prejudice, a defendant “must show that there
is 	a 	reasonable 	probability 	that,” 	but 	for 	the 	attorney’s
“unprofessional errors, the result of the proceeding would have
been different.” State v. Bonds, 2023 UT 1, ¶ 53, 524 P.3d 581
(quotation simplified). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. (quotation
simplified).
¶61 	As noted, Pontiff’s claim is based on Counsel’s failure to
file a merger motion. The “merger doctrine” is codified in Utah
Code section 76-1-402, and it is “designed to protect criminal
defendants from being twice punished for committing a single act
that may violate more than one criminal statute.” State v. Lesky,
2021 UT App 67, ¶ 17, 494 P.3d 382 (quotation simplified). Section
76-1-402 “contains two merger tests.” State v. Rodriguez, 2025 UT

State v. Pontiff
20240854-CA 	22 	2026 UT App 117
App 84, ¶ 35, 572 P.3d 436 (quotation simplified), cert. denied, 588
P.3d 306 (Utah 2026). The first test is found in subsection 76-1-
402(1). It “addresses whether the same criminal act forms the basis
for multiple criminal charges, and this test is sometimes referred
to as ‘the same act provision.’” Id. (quotation simplified). The
second test is found in subsection 76-1-402(3). It “addresses
included offenses—predominantly lesser-included offenses, and
it 	is 	sometimes 	referred 	to 	as 	‘the 	lesser 	included 	offense
provision.’” Id. (quotation simplified). In his brief, Pontiff only
argues that Counsel should have requested merger under the
lesser included offense provision, so we limit our analysis to that
provision.
¶62 	Utah 	courts 	have 	set 	forth 	a 	“two-step 	analysis 	for
resolving” a request for lesser included offense merger. State v.
Brooks, 908 P.2d 856, 861 (Utah 1995). The “first step is a purely
theoretical comparison of the statutory elements of each offense.”
Id. This comparison asks “whether the crimes are such that the
greater 	cannot 	be 	committed 	without 	necessarily 	having
committed the lesser.” State v. Corona, 2018 UT App 154, ¶ 47, 436
P.3d 174 (quotation simplified). In other words, there is no
greater-lesser relationship if “each provision requires proof of a
fact which the other does not.” Salt Lake City v. Josephson, 2019 UT
6, ¶ 26, 435 P.3d 255 (quotation simplified).
¶63 	The second step is necessary only when the offenses have
multiple variations and “there is a theoretical possibility of a
lesser included relationship.” Brooks, 908 P.2d at 861. Under this
step, courts “look at the evidence actually presented at trial to
determine which of the statutory variations were proved and
whether those variations created a lesser included relationship
between the two charged crimes.” Id. “But even if there is overlap
in the statutory elements, if the convictions rely on materially
different acts, then one crime will not be a lesser included offense
of 	another.” 	Rodriguez, 	2025 	UT 	App 	84, 	¶ 	58 	(quotation
simplified).

State v. Pontiff
20240854-CA 	23 	2026 UT App 117
¶64 	As noted, the crimes at issue here are object rape and
forcible sexual abuse. The relevant elements of the two offenses
are as follows.
¶65 	Object rape. Under the version of the statute in effect at the
time, a person committed object rape if, “without the victim’s
consent,” the person “cause[d] the penetration, however slight, of
the genital . . . opening of another person . . . by any foreign object,
. . . including a part of the human body other than the mouth or
genitals,” and the person did so with the requisite intent. Utah
Code § 76-5-402.2(1) (2021).
¶66 	In State v. Heath, 2019 UT App 186, 453 P.3d 955, we
considered 	the 	meaning 	of 	the 	term 	“genital 	opening” 	for
purposes of this offense. We concluded that “in the context of the
object rape statute,” the term includes the vaginal opening—and,
indeed, that “it is plain that the term ‘opening’ is not limited to
the vaginal opening,” but that “the ‘penetration’ element” is also
“satisfied when the penetration occurs between the outer folds of
the labia.” Id. ¶¶ 68, 70 (quotation simplified). We thus held that
the defendant there had committed object rape when the evidence
showed that he had gone “beyond her labia majora to touch her
clitoris.” Id. ¶ 62 (quotation simplified).7
¶67 	Forcible sexual abuse. Under the version of the statute in
effect at the time of the offense, a person committed forcible
sexual abuse if, “under circumstances not amounting to . . . object
rape,” the person “touche[d] the . . . pubic area[] or any part of the
genitals of another” with the requisite intent. Utah Code § 76-5-
404(1) (2021).
7. In a decision issued just a week ago, another panel of this court
rejected a request to overrule State v. Heath, 2019 UT App 186, 453
P.3d 955, on these points. See State v. Black, 2026 UT App 114,
¶¶ 35–48, -- P.3d --.

State v. Pontiff
20240854-CA 	24 	2026 UT App 117
B. 	Pontiff’s merger argument
¶68 	During its closing argument, the State told jurors that the
forcible sexual abuse charge was based on “the outer touching” of
Amanda’s vagina—specifically, “the touching that occurred right
before [Pontiff] digitally penetrated her.” The State then told
jurors that the object rape charge was based on the “digital
penetration,” 	meaning, 	Pontiff 	putting 	his 	fingers 	inside 	of
Amanda’s vagina. And in his brief, Pontiff acknowledges that this
was the distinction between the two charges. From there, Pontiff
asserts that the testimony at trial about the touching that occurred
before the digital penetration only supported a finding that
Pontiff had touched Amanda’s clitoris. Seizing on our discussion
in Heath, 	Pontiff then asserts that the earlier touching had
necessarily involved a penetration of the labial folds, and he
further 	asserts 	that 	because 	that 	touching 	had 	happened
“immediately” before the digital penetration, it was “part of the
same action” that supported the object rape charge. Pulling all this
together, Pontiff claims that Counsel should have argued that the
forcible sexual abuse charge should merge with the object rape
charge.
C. 	Pontiff’s argument fails for lack of deficient performance
¶69 	Having 	reviewed 	the 	trial 	transcript, 	we 	agree 	with
Pontiff’s assessment of the record. Amanda testified that Pontiff
“start[ed] by rubbing [his hand] very hard in [her] genitals.”
(Emphasis added). 8 Of some note, she said that this happened
before Pontiff “start[ed] to stick his fingers in [her] vagina.”
Amanda never described any independent act in which Pontiff
intentionally touched her labia or pubic area outside of the folds.
For his part, Pontiff testified that he began by “rubbing her clitoris
8. Neither party has asserted that there was a transcription error,
wherein the emphasized “in” should have been transcribed as an
“on.”

State v. Pontiff
20240854-CA 	25 	2026 UT App 117
with a finger for a little bit,” after which he “then . . . put one and
two fingers inside of her vagina.” Thus, Amanda and Pontiff both
seem to have agreed that the initial touching (which, again, was
the basis for the forcible sexual abuse charge) involved Pontiff
touching Amanda’s clitoris. And Amanda’s use of the word “in”
suggested that this involved a penetration of some sort.
¶70 	In light of this, we see some merit to Pontiff’s argument—
but only up to a particular point. As indicated, the forcible sexual
abuse statute states that a person commits forcible sexual abuse if,
“under circumstances not amounting to . . . object rape,” the person
“touches the . . . pubic area[] or any part of the genitals of another”
with 	the 	requisite 	intent. 	Utah 	Code 	§ 	76-5-404(1) 	(2021)
(emphasis added). And as indicated, we held in Heath that where
an act of touching the clitoris involves penetrating the labia (and,
thus, the genital opening), that act can support a conviction for
object rape. See 2019 UT App 186, ¶¶ 62, 71. Moreover, in a recent
decision, we concluded that Heath remains good law and that
under 	its 	terms, 	“contact 	with 	the 	clitoris 	inside 	the 	labia
necessarily establishes penetration of the genital opening.” State
v. Black, 2026 UT App 114, ¶ 36, -- P.3d --; see also id. ¶ 38
(concluding that “touching the clitoris inside the exterior of the
labia 	necessarily 	means 	that 	the 	genital 	opening 	has 	been
penetrated, even if only slightly”).
¶71 	Together, 	the 	forcible 	sexual 	abuse 	statute 	and 	our
interpretations of it in Heath and Black indicate that, in a case like
this one involving a female victim, forcible sexual abuse of this
sort is limited to non-penetrative touching. As a result, given the
testimony we’ve recounted above, it seems that the touching that
the State relied on for the forcible sexual abuse conviction (i.e., the
touching that occurred before the digital penetration) likely didn’t

State v. Pontiff
20240854-CA 	26 	2026 UT App 117
constitute 	forcible 	sexual 	abuse, 	but 	it 	instead 	would 	have
supported a conviction for object rape.9
¶72 	The problem for Pontiff, however, is that this doesn’t
support the argument he’s making on appeal. Again, on appeal,
he’s 	arguing 	that 	Counsel 	should 	have 	requested 	statutory
merger under the lesser included offense merger provision. As
we’ve indicated, such a motion would fail under the second step
“if the convictions rely on materially different acts.” Rodriguez,
2025 UT App 84, ¶ 58 (quotation simplified). And the animating
idea behind this second step is clear enough: since a greater
offense necessarily encompasses its lesser included offense, the
State can’t take one conviction (i.e., a conviction for the greater
offense) and arbitrarily split it into two (i.e., one conviction for the
greater offense and another for the lesser included offense).
¶73 	But that’s not what happened here. Instead, reviewing the
testimony that was given, we think it’s clear enough that Amanda
and Pontiff each described two separate touchings. Again, early
in her testimony, Amanda said that Pontiff “start[ed] by rubbing
[his hand] very hard in [her] genitals,” after which Pontiff “[t]hen
. . . start[ed] to stick his fingers in [her] vagina.” Later in her
testimony, she said that Pontiff began by rubbing her clitoris and
that he “eventually” used his fingers to penetrate her vagina.
Pontiff described things similarly. He said that he began by
“rubbing her clitoris with a finger for a little bit,” after which he
“then . . . put one and two fingers inside of her vagina.”
9. Indeed, in Black, we recently held that where the victim had
described a touching of the clitoris that involved penetration of
the labial folds, and where that act had then been charged as
object rape, the district court correctly rejected a request for a
lesser included offense instruction on forcible sexual abuse. See
2026 UT App 114, ¶¶ 54–57.

State v. Pontiff
20240854-CA 	27 	2026 UT App 117
¶74 	While the clitoris is located between the labial folds (which
is why, under Heath, touching it in a manner that involves
penetration of the labial folds without consent can support an
object rape conviction), the clitoris is a different body part than
the vaginal canal. And as indicated, Amanda and Pontiff each
described a sequence in which Pontiff first deliberately touched
Amanda’s clitoris, after which he then deliberately penetrated her
vagina with his fingers. Put differently, neither of them suggested
that 	Pontiff 	only 	incidentally 	touched 	Amanda’s 	clitoris 	in
passing while he was trying to penetrate her vagina with his
fingers, nor did either of them suggest that he only incidentally
touched her vaginal opening in passing while he was trying to
touch her clitoris. Instead, both of them described a sequence in
which Pontiff first deliberately touched her clitoris for a brief
period of time, after which he then deliberately moved on and
performed a separate set of acts in which he inserted his fingers
into her vagina.
¶75 	For these reasons, Pontiff has not persuaded us that there
was a valid basis for merging the forcible sexual abuse and object
rape convictions into a single conviction for one count of object
rape. If anything, we think the natural import of this record and
Pontiff’s argument is that the forcible sexual abuse charge could
have been charged as a separate count of object rape. But this
would not entitle Pontiff to turn these two convictions into one.
As a result, we conclude that the merger motion that Pontiff
proposes would have been futile, and Pontiff has not persuaded
us that Counsel performed deficiently by not making it.
III. Ineffective Assistance and Hearsay
¶76 	Pontiff 	next 	argues that 	Counsel 	provided 	ineffective
assistance by failing to make hearsay objections to what he
describes as two “prior consistent statements that [Amanda] was
raped,” which he claims were improper because “the defense
never rais[ed] an express or implied charge of recent fabrication.”

State v. Pontiff
20240854-CA 	28 	2026 UT App 117
As noted, Pontiff must establish both deficient performance and
prejudice, and we can reject his claims for failure to prove either
element. See Miller, 2023 UT App 85, ¶ 25.
A. 	Deputy’s testimony
¶77 	Pontiff first points to an exchange between the State and
Deputy. As noted, Deputy testified about his conversation with
Amanda at the hospital after her sexual assault examination, and
he told jurors that Amanda did not want to report anything at that
time. The prosecutor then asked whether Amanda ever said, “I
wasn’t raped” or “I wasn’t sexually assaulted,” to which Deputy
responded, “No.” On appeal, Pontiff claims that this answer
constituted 	inadmissible 	hearsay. 	As 	he 	describes 	it, 	when
Deputy testified that Amanda did not say she was not raped or
sexually assaulted, this “cloak[ed] a prior consistent statement in
a double negative” and improperly communicated that Amanda
“claimed she was raped.” Pontiff claims that Counsel provided
ineffective assistance by not objecting on this basis. We reject this
claim for lack of deficient performance.
¶78 	By rule, the term “hearsay” refers to a “statement” that is
made out of court and is offered “to prove the truth of the matter
asserted in the statement.” Utah R. Evid. 801(c). The rule defines
the 	term 	“statement” 	as 	a 	“person’s oral 	assertion, 	written
assertion, or nonverbal conduct, if the person intended it as an
assertion.” Id. R. 801(a).
¶79 	We see no basis for concluding that the challenged answer
here repeated a “statement” made by Amanda. In the exchange in
question, Deputy did not repeat anything that Amanda had said.
Rather, what Deputy said was that Amanda had not made a
statement. Pontiff points to no authority that extends the hearsay
rule to testimony from one person stating that another person
made no statement. As a result, under the current law, this

State v. Pontiff
20240854-CA 	29 	2026 UT App 117
objection would have been futile, and Counsel therefore did not
perform deficiently by not making it.
B. 	Ex-Boyfriend’s testimony
¶80 	Pontiff 	next 	points 	to 	testimony 	from 	Ex-Boyfriend,
wherein Ex-Boyfriend said that Amanda had told him on the
phone that she “went with a guy [the previous] night, and he
raped [her].” Pontiff asserts that this was inadmissible hearsay
and that Counsel provided ineffective assistance by not objecting
to it.
¶81 	As 	noted, 	Pontiff 	must 	not 	only 	establish 	deficient
performance, but also that he was prejudiced by it. And to
establish prejudice, Pontiff “must show that there is a reasonable
probability that, but for Counsel’s unprofessional errors, the
result of the proceeding would have been different.” Bonds, 2023
UT 1, ¶ 53 (quotation simplified). We see no such probability here,
and this is so for several reasons.
¶82 	First, the statement that Ex-Boyfriend relayed was about
Amanda’s claim that Pontiff had “raped” her. But as noted,
Pontiff was acquitted of the rape charge, which undermines the
suggestion that he was prejudiced by this particular statement.
¶83 	Second, while this statement did inform jurors that on the
morning after the incident, Amanda was claiming that Pontiff had
raped her, there was other testimony informing jurors that
Amanda believed she had been raped and already believed this at
that time. Starting with the act itself, Amanda testified that she
“felt [Pontiff’s penis] on [her] vagina” and then “felt pressure
going in.” And jurors also heard testimony that, at a medical
appointment a week later, Amanda reported that Pontiff “placed
his penis in her vagina.”

State v. Pontiff
20240854-CA 	30 	2026 UT App 117
¶84 	As for whether this was consensual, Amanda described
this act as happening after a sequence in which Pontiff had
aggressively committed various other nonconsensual sexual acts.
And with respect to this particular act, she said that it occurred
after Pontiff pulled her on top of him “aggressively” and while
she was in a state of “shock.” Jurors also heard testimony that
after speaking to a religious leader who was an attorney the next
morning, Amanda went to the hospital and received a sexual
assault examination. And jurors heard testimony from various
witnesses describing how, in the hours and days after the assault,
Amanda was crying and emotional and acting as if she were in a
traumatized state. From all this, even without this statement from
Ex-Boyfriend, jurors had a basis for understanding that Amanda
was claiming Pontiff had placed his penis inside her vagina
without her consent.
¶85 	We accordingly see no “reasonable probability” that Ex-
Boyfriend’s single statement about Amanda claiming that Pontiff
had “raped” her affected the outcome of Pontiff’s trial in any
meaningful way, particularly where he was acquitted of that very
charge. We accordingly reject this claim for lack of prejudice.
IV. Ineffective Assistance and Expert’s Testimony
¶86 	Finally, Pontiff argues that Counsel provided ineffective
assistance by failing to move to exclude Expert’s testimony.
Pontiff raises two claims relating to this testimony. First, he argues
that rule 702 of the Utah Rules of Evidence does not permit
testimony from blind experts. Second, he argues that Expert’s
testimony constituted inadmissible bolstering. We reject both
arguments for lack of deficient performance.
A. 	Use of blind experts
¶87 	Pontiff first claims that rule 702 does not permit blind
experts. This argument is based on the text of rule 702, which

State v. Pontiff
20240854-CA 	31 	2026 UT App 117
states that “[s]cientific, technical, or other specialized knowledge
may serve as the basis for expert testimony only if there is a
threshold 	showing 	that 	the 	principles 	or 	methods 	that 	are
underlying in the testimony” (1) “are reliable,” (2) “are based
upon sufficient facts or data, and” (3) “have been reliably applied to
the facts.” Utah R. Evid. 702(b) (emphasis added). Pontiff argues
that our supreme court “takes a strict textualist approach with
[these] rules,” and he then argues that under such an approach,
the “use of the conjunctive ‘and’ makes all three subsections
essential elements.” In his view, Counsel should have therefore
argued that the rule does not permit testimony from blind experts
because such experts are, by definition, not purporting to apply
the relevant principles or methods to the facts of the case.
¶88 	On first blush, there is some textualist appeal to Pontiff’s
argument. Rule 702 does say that expert testimony is admissible
“only” if there is a threshold showing that the relevant principles
or 	methods 	have 	been 	“reliably 	applied 	to 	the 	facts.” 	Id.
R. 702(b)(3). And by definition, a blind expert is not doing that.
¶89 	But 	the 	problem 	here 	is 	that 	Pontiff 	is 	making 	this
argument through the lens of an ineffective assistance claim,
which 	means 	that 	he 	must 	show 	that 	Counsel 	performed
deficiently. 	As 	discussed 	above, 	Counsel 	does 	not 	perform
deficiently by failing to make a futile motion. And of note, when
an appellate court assesses such a claim, it does so based on the
law that was in effect at the time of the action in question. See
Strickland 	v. 	Washington, 	466 	U.S. 	668, 	689 	(1984); 	State 	v.
Hamberlin, 2025 UT App 131, ¶ 36, 577 P.3d 912.
¶90 	At the time of Pontiff’s trial in 2024, our supreme court had
repeatedly held that testimony from blind experts could be
admissible. One notable example of this was State v. Clopten, 2009
UT 84, 223 P.3d 1103. There, the supreme court held that under
rule 702, a district court can admit expert testimony about
“various 	factors 	that 	can 	affect 	the 	accuracy 	of 	eyewitness

State v. Pontiff
20240854-CA 	32 	2026 UT App 117
identifications,” 	and, 	notably, 	that 	such 	testimony 	can 	be
admitted even if the expert is not “familiar with the facts of the
case prior to the testimony” and simply discusses “the relevant
research . . . in more general terms,” thereby “allowing the jury to
apply the information to whatever degree it sees fit.” Id. ¶¶ 3, 19.
In this sense, the supreme court approved the use of what we’ve
now referred to as blind experts.
¶91 	In doing so, the supreme court specifically held that
testimony 	from 	such 	experts 	does 	not 	violate 	rule 	702(b)’s
requirement that the testimony be “reliably applied to the facts of
the case.” Id. ¶ 35 (quotation simplified). And the supreme court
justified 	this 	holding, 	in 	part, 	by 	referring 	to 	an 	advisory
committee note to rule 702 that stated that it “might be important
in some cases for an expert to educate the factfinder about general
principles, without attempting to apply these principles to the
specific facts of the case.” Id. ¶ 36 (quoting Utah R. Evid. 702
advisory committee note).10
¶92 	The supreme court applied these principles again a few
years later in State v. Perea, 2013 UT 68, 322 P.3d 624. There, the
supreme court held that a district court had abused its discretion
when 	it 	refused 	to 	allow 	an 	expert 	to 	testify 	about 	“the
phenomenon of false confessions” and “the factors that can lead
to false confessions.” Id. ¶¶ 71, 73. Moreover, the supreme court
held that the proposed testimony should have been admitted in
that case even if the expert was not permitted to separately testify
about how those principles would apply to the facts at issue. See
id. ¶¶ 57–58. Thus, as in Clopten, the supreme court in Perea
approved the use of blind experts.
¶93 	In light of Clopten and Perea, as well as the language from
the advisory committee note to rule 702 that Clopten relied on, the
10. This same note was still in place at the time of Pontiff’s trial in
2024, and it’s still in place in the current rule.

State v. Pontiff
20240854-CA 	33 	2026 UT App 117
proposed motion would have been futile. As a result, Counsel did
not perform deficiently by failing to make it.11
B. 	Bolstering
¶94 	Pontiff next claims that Counsel should have argued that
Expert’s testimony constituted improper witness bolstering in
violation of the principles set forth in rule 608 of the Utah Rules
of Evidence and State v. Rimmasch, 775 P.2d 388 (Utah 1989),
superseded on other grounds by rule as recognized in State v. Maestas,
2012 UT 46, 299 P.3d 892. In Pontiff’s view, Expert’s testimony
11. We note that several decisions from this court that were issued
after Pontiff’s trial have also specifically approved the use of blind
experts. See, e.g., State v. Mendoza, 2025 UT App 140, ¶¶ 17 n.4, 32,
585 P.3d 49; State v. Garcia, 2025 UT App 119, ¶¶ 33, 36, 576 P.3d
1111, cert. denied, 581 P.3d 555 (Utah 2025); State v. Sombra, 2025
UT App 83, ¶¶ 13, 24, 571 P.3d 1228, cert. denied, 574 P.3d 523
(Utah 	2025). 	Indeed, 	this 	court 	recently 	acknowledged 	that
“testimony is more likely to be admissible if the expert testifies as
a blind witness” because “[o]ne of the benefits of doing so—and,
particularly, when the jury is informed that the expert does not
know the facts of 	this case—is that this helps remove the
perception that the expert is opining on the truthfulness of a
particular witness or victim.” State v. Francis, 2025 UT App 104,
¶ 72, 575 P.3d 1197.
So again, while we acknowledge the textualist appeal of
Pontiff’s argument, this argument could only succeed under our
current law if either (1) the supreme court overturns its past
precedents (thereby causing the court of appeals to do the same)
or (2) the language of rule 702 is changed in a manner that
forecloses such testimony more specifically than the current text
of the rule arguably does. In the absence of either event, it seems
settled that rule 702 permits the use of testimony from blind
experts. 	And 	this 	is 	why, 	again, 	Counsel 	did 	not 	perform
deficiently by not making this argument at Pontiff’s trial.

State v. Pontiff
20240854-CA 	34 	2026 UT App 117
about 	how 	trauma 	can 	affect 	victims 	“mirrored” 	and 	then
impermissibly bolstered various things that Amanda had said.
¶95 	But the problem with this argument is that it, too, is
foreclosed by controlling precedent. In a post-Rimmasch case, our
supreme court held that “[r]ule 608(a) does not prohibit an expert
. . . from giving testimony from which a jury could infer the
veracity of [another] witness.” State v. Adams, 2000 UT 42, ¶ 14, 5
P.3d 642. In the supreme court’s view, Rimmasch instead “only
bars direct testimony regarding the truthfulness of a witness on a
particular occasion,” and testimony does “not impermissibly
invade the province of the jury or violate rule 608(a)” if it does
“not directly address” the witness’s “veracity about the alleged
abuse in this case.” Id. (quotation simplified). Other cases have
reached similar conclusions. See, e.g., State v. Kallin, 877 P.2d 138,
141 (Utah 1994) (holding that the district court did not err in
admitting expert testimony when the expert testified that “the
victim’s behavior was consistent with symptoms that might be
exhibited by one who had been sexually abused” rather than
testifying “that the victim had in fact been sexually abused”); State
v. Burnett, 2018 UT App 80, ¶¶ 27–31, 427 P.3d 288 (concluding
that because Utah law allows experts to “testify that a victim’s
behavior is consistent with sexual abuse,” an expert’s testimony
to that effect was admissible and “trial counsel was not ineffective
for failing to object to these portions of [the expert’s] testimony”
(quotation simplified)); State v. Christensen, 2016 UT App 225,
¶¶ 28–29, 387 P.3d 588 (holding that because an expert did not
testify to “the ultimate legal conclusion” that the victim was
sexually assaulted, the expert’s testimony that several of the
victim’s “symptoms were consistent with” post-traumatic stress
disorder was admissible).
¶96 	As indicated, this is precisely what occurred here, where
Expert testified on a general level about various phenomena
relating to trauma victims, but where Expert did not directly
opine on Amanda’s credibility (and indeed had no basis for doing

State v. Pontiff
20240854-CA 	35 	2026 UT App 117
so, given that Expert testified as a blind expert). In light of this,
the proposed motion would have been futile, and Counsel
therefore did not perform deficiently by not making it.12
CONCLUSION
¶97 	We conclude that because there was insufficient evidence
to show that Pontiff used force that was likely to cause a loss of
consciousness, the district court erred in denying Pontiff’s motion
for a directed verdict on the aggravated assault charge. We
accordingly vacate Pontiff’s conviction on that charge. But we
reject Pontiff’s remaining claims (all of which allege ineffective
assistance 	of 	counsel) 	for 	lack 	of 	deficient 	performance 	or
prejudice. We accordingly affirm his remaining convictions.
12. At the close of his brief, Pontiff invokes the cumulative error
doctrine, but he only does so with respect to the hearsay and
expert testimony claims. Of note, Pontiff does not assert that any
error relating to the aggravated assault charge could accumulate
as well. With respect to the claims at issue, we rejected the hearsay
claim relating to Ex-Boyfriend for a lack of prejudice, and we
rejected the remaining claims on their merits. Because Pontiff “has
not successfully demonstrated multiple errors on appeal, there
are no errors to accumulate,” and the cumulative error doctrine is
therefore “inapplicable.” State v. Hunt, 2025 UT 54, ¶ 83, 582 P.3d
772 (quotation simplified).