State v. Phillips

2022 UT App 79
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
A RTER O CTAVIO PHILLIPS ,
Appellant.
Opinion
No. 20190170-CA
Filed June 24, 2022
Second District Court, Ogden Department
The Honorable Jennifer L. Valencia
No. 161901389
Emily Adams and Cherise M. Bacalski,
Attorneys for Appellant
Sean D. Reyes and David A. Simpson,
Attorneys for Appellee
JUSTICE DIANA H AGEN authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and R YAN M. HARRIS concurred.1
HAGEN, Justice:
¶1 	A jury convicted Arter Phillips of two counts of child rape.
At trial, the jury heard evidence that Phillips’s DNA had been
found on one pair of the victim’s semen-stained underwear. The
defense maintained that Phillips’s DNA must have transferred to
the victim’s underwear in the laundry from a towel he used after
having sex with his wife. In closing argument, the prosecutor
1. Justice Diana Hagen began her work on this case as a judge of
the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).

State v. Phillips
20190170-CA 	2 	2022 UT App 79
pointed out that only Phillips’s and the victim’s DNA profiles
were found on the underwear, not the wife’s.
¶2 	During trial, the prosecutor received a report that Phillips’s
DNA had been found on two additional pairs of the victim’s
underwear and that a third “unknown contributor” was also
detected on one of those pairs. Phillips’s attorney refused to
stipulate to the admission of the late-disclosed report, and the
evidence was never presented to the jury. On appeal, Phillips
argues 	that 	his 	attorney’s 	refusal 	to 	stipulate 	amounted 	to
ineffective assistance of counsel because the presence of a third
contributor could have supported the defense theory. He also
argues that his attorney was ineffective when he failed to object to
the prosecutor’s statement in closing argument that there were
“only two people in this sample”—Phillips and the victim.
Because Phillips has not shown that his attorney’s performance
was constitutionally deficient in either respect, we affirm his
convictions.
BACKGROUND2
¶3 	Phillips sexually abused the victim, a thirteen-year-old
family member, beginning when she was five years old. The abuse
occurred “[t]oo many [times] to count,” with the most recent
incident taking place on January 10, 2015—five days before the
victim reported Phillips to law enforcement.
¶4 	Officers obtained a search warrant for Phillips’s home the
following day. Once there, officers collected a bag of the victim’s
soiled 	underwear, 	along 	with 	other 	physical 	evidence.
Technicians at the State’s crime lab detected traces of semen on
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.
Rosen, 2021 UT App 32, n.1, 484 P.3d 1225 (cleaned up).

State v. Phillips
20190170-CA 	3 	2022 UT App 79
three pairs of the victim’s underwear and, accordingly, sent
cuttings of the underwear for DNA testing. Results for one pair
returned before the others, revealing a match to Phillips’s DNA
profile as well as the victim’s. No other DNA profile was detected.
The State’s witnesses, including a crime lab technician and two
DNA experts, later testified about this at trial.
¶5 	Officers confronted Phillips with the DNA results during
the investigation, and Phillips explained that his semen could
have transferred onto the victim’s underwear in the laundry.
Phillips recalled having sex with his wife around the date the
victim reported him to law enforcement. He reported that he had
cleaned himself with a towel and placed it in a shared laundry
basket for “whites and towels and all that.” Because the victim’s
soiled underwear would have been in the same laundry basket,
Phillips supposed that his semen must have transferred from the
towel 	to the 	underwear. 	Phillips testified 	about 	the 	shared
laundry basket again at trial.
¶6 	On day two of trial, the prosecution notified defense
counsel and the court that DNA results for the remaining two
pairs of underwear had just arrived. Like the first pair of
underwear, the prosecution represented that Phillips’s DNA had
been found on both the second and third pairs. There was,
however, “one unknown contributor in one of the samples,” and
the prosecution did not “know where it came from.”
¶7 	“[B]ecause of the late notice,” the parties agreed that they
would proceed with trial “as if [the new DNA results] don’t exist
at this point.” Addressing the court, defense counsel stated,
What was testified on the stand yesterday, we have
had 	that 	information 	for 	months. 	What 	[the
prosecution is] talking about is information they got
yesterday which, you know, the rules say I’ve got to
have more time than that. The other option is we
could just continue the trial. So, under the rules,

State v. Phillips
20190170-CA 	4 	2022 UT App 79
because it’s not been provided timely, . . . it’s not
admissible, basically, unless I stipulate.
The court excluded the newly arrived evidence per the parties’
stipulation.
¶8 	When one of the State’s DNA experts took the stand,
defense counsel attempted to boost Phillips’s explanation for how
his semen had been found on the victim’s underwear. Defense
counsel asked whether it was possible for “DNA to transfer from
one [item] to the other” when “the clothing is mixed, combined.”
The DNA expert responded that “[i]f two items were in contact
like that, it may be possible.”
¶9 	The State pushed back in closing argument. Reminding the
jury of the DNA results from the first pair of underwear, the
prosecution invited the jury to consider “who else’s DNA should
be there if [Phillips’s] story is correct? You heard [the DNA expert]
say there are only two people in this sample. One is Arter Phillips,
one is [the victim]. Who is not there? [Phillips’s wife]. He didn’t
have sex with his wife. . . . But why does he remember January
10th, 2015? Ladies and gentlemen, it’s because it’s the last time
this man had sex with [the victim].”
¶10 	The jury found Phillips guilty, and he now appeals.
ISSUES AND STANDARD OF REVIEW
¶11 	Phillips argues that he received ineffective assistance of
counsel on two grounds: (1) defense counsel’s refusal to stipulate
to the admission of the additional DNA results, which showed a
third DNA contributor on one of the pairs of underwear, and (2)
defense 	counsel’s 	failure 	to 	object 	when 	the 	State 	attacked
Phillips’s story during closing argument. Because Phillips raises
these claims “for the first time on appeal, there is no lower court
ruling to review.” See Layton City v. Carr, 2014 UT App 227, ¶ 6,

State v. Phillips
20190170-CA 	5 	2022 UT App 79
336 P.3d 587. We must therefore “decide whether [he] was
deprived of the effective assistance of counsel as a matter of law.”
Id. (cleaned up).
ANALYSIS
¶12 	Ineffective assistance claims require a two-part showing:
“(1) that counsel’s performance was deficient, and (2) that the
deficient performance prejudiced the defense.” Provo City v.
Bishop-Garcia, 2022 UT App 16, ¶ 16, 505 P.3d 81 (cleaned up).
Counsel’s 	performance 	is 	deficient 	if, 	“considering 	all 	the
circumstances, 	counsel’s 	acts 	or 	omissions 	were 	objectively
unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. And
counsel’s 	deficient 	performance 	is 	prejudicial 	if 	“there 	is 	a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Honie v. State, 2014 UT 19, ¶ 33, 342 P.3d 182 (cleaned up). Because
a 	defendant 	must 	affirmatively 	prove 	both 	prongs 	of 	an
ineffective assistance of counsel claim, “it is not necessary for us
to address both components of the inquiry if we determine that a
defendant has made an insufficient showing on one.” Archuleta v.
Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 (cleaned up). Here, we
conclude that both of Phillips’s ineffective assistance of counsel
claims 	fail 	because 	he 	has 	not 	proved 	that 	his 	counsel’s
performance was objectively deficient.
I. Exclusion of DNA Evidence
¶13 	Phillips 	argues 	that 	defense 	counsel 	“performed
deficiently when he stipulated that evidence that [the victim’s]
underwear contained a third DNA profile should not come in at
trial.” In Phillips’s view, such evidence would have supported his
explanation for how his semen had been found on the victim’s
underwear. That is, because Phillips stated that he had cleaned
himself with a towel after having sex with his wife, the presence

State v. Phillips
20190170-CA 	6 	2022 UT App 79
of a third DNA profile on the victim’s underwear would have
been consistent with Phillips’s story.
¶14 	Because the additional DNA results are not in the record,
Phillips requests a remand to supplement the record under rule
23B of the Utah Rules of Appellate Procedure. See State v. Guerro,
2021 UT App 136, ¶¶ 45–48, 502 P.3d 338 (holding that defendant
could not establish ineffective assistance based on evidence in
a DNA report that was missing from the record). “Rule 23B
provides a mechanism for criminal defendants to supplement
the record with facts that are necessary for a finding of ineffective
assistance of counsel but which do not appear in the record.” State
v. Cecala, 2021 UT App 141, ¶ 32, 502 P.3d 790 (cleaned up). “A
remand under rule 23B is available only upon a nonspeculative
allegation of facts, not fully appearing in the record on appeal,
which, 	if 	true, 	could 	support 	a 	determination 	that 	counsel
was ineffective.” State v. Crespo, 2017 UT App 219, ¶ 24, 409 P.3d
99 	(cleaned 	up). 	Accordingly, 	we 	must 	assess 	whether
Phillips’s allegations, if proven, would establish an ineffective
assistance of counsel claim. See State v. Gallegos, 2020 UT 19, ¶ 39,
463 P.3d 641.
¶15 	Phillips has provided 	an 	affidavit 	from his appellate
counsel along with the second DNA report that he seeks to
admit 	into 	evidence 	on 	remand. 	That 	report 	indicates 	that
semen 	stains 	from 	two 	additional 	pairs 	of 	the 	victim’s
underwear 	were 	submitted 	for 	analysis. 	Both 	samples
contained 	Phillips’s 	and 	the 	victim’s 	DNA, 	but 	one 	of 	the
samples also contained an unknown third-party profile. Even
accepting 	these 	proffered 	facts 	as 	true, 	however, 	Phillips
cannot 	show 	that 	defense 	counsel 	rendered 	deficient
performance by refusing to stipulate to the admission of that
evidence. Rather, defense counsel’s strategic decision—that the
inculpatory 	nature 	of 	the 	newly 	arrived 	DNA 	results
outweighed 	any 	exculpatory 	value—was 	not 	objectively
unreasonable.

State v. Phillips
20190170-CA 	7 	2022 UT App 79
¶16 	We “indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.”
State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d 871 (cleaned up). Thus, “[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.” Id. Further, “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.” State v. Wright, 2021 UT App 7, ¶ 53, 481 P.3d 479 (cleaned
up). So long as the strategy selected was reasonable in the
moment, we defer “to the professional judgment of counsel,”
regardless of the end result. Id. (cleaned up); see also Ray, 2020 UT
12, ¶ 31 (“The reasonableness of counsel’s challenged conduct
must be judged on the facts of the particular case, viewed as of the
time of counsel’s conduct.” (cleaned up)).
¶17 	Here, even though the existence of the third DNA profile
on one of the pairs of underwear might have been helpful to the
defense theory, counsel could have reasonably concluded that
any such benefit was outweighed by the risk of admitting the
evidence. When presented with the additional DNA results,
counsel had a choice. He could stipulate to the report’s admission
in hopes of persuading the jury that the third DNA contributor
was Phillips’s wife, despite the fact that there was no third
contributor 	found 	on 	the 	two 	other 	pairs 	of 	underwear.
Alternatively, counsel could refuse to stipulate, removing two out
of three semen-stained pairs of underwear—all bearing Phillips’s
DNA—from consideration by the jury altogether. The latter
option was an objectively reasonable trial strategy, which we will
not second-guess on appeal.
¶18 	Even 	if 	the 	second 	DNA 	report 	was 	added 	to 	the
record, Phillips could not establish that his counsel rendered
ineffective assistance in not stipulating to the admission of that
evidence at trial. We therefore deny his request for a remand
under rule 23B.

State v. Phillips
20190170-CA 	8 	2022 UT App 79
II. Failure to Object During Closing Arguments
¶19 	Phillips next argues that defense counsel should have
objected when the prosecution said that “there was no third DNA
contributor 	in 	the 	evidence” 	during 	closing 	argument.3 	As
Phillips sees it, “the prosecutor knew that there was a third
unidentified DNA contributor and had agreed to not admit
evidence of that contributor at trial.” So when the prosecutor
pointed out that no third DNA contributor had been found on the
single pair of underwear that the State’s witnesses did discuss at
trial, Phillips contends that “the prosecut[ion] breache[d] its
agreement 	and 	misconstrued 	the 	evidence, 	arguing 	false
inferences to the jury.” We disagree.
¶20 	As with any decision by counsel not to object, we must
“determine 	whether 	correcting 	the 	error 	was 	sufficiently
important under the circumstances that failure to do so was
objectively unreasonable—i.e., a battle that competent counsel
would have fought.” State v. Ray, 2020 UT 12, ¶ 32, 469 P.3d 871.
We bear in mind there are several reasons for counsel to refrain
from objecting during closing argument, since doing so risks
“highlighting problematic evidence” or “annoying the jury.” State
v. Hummel, 2017 UT 19, ¶ 110, 393 P.3d 314. Accordingly, our
supreme court has instructed that “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 (cleaned up). Short of that, we presume that
“counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland v. Washington, 466 U.S. 668, 689
(1984).
3. The State contends that this argument also turns on whether
this court grants Phillips’s rule 23B motion. We believe that the
record is sufficiently complete, however, to address the merits of
Phillips’s argument.

State v. Phillips
20190170-CA 	9 	2022 UT App 79
¶21 	The 	prosecutor’s 	statement 	in 	this 	case 	did 	not
mischaracterize the evidence. Discussing the DNA results from
the first pair of underwear—the only DNA results admitted at
trial—the prosecutor said, “You heard [the DNA expert] say there
are only two people in this sample. One is Arter Phillips, one is
[the victim]. Who is not there? [Phillips’s wife].” That statement
was accurate; there was no third DNA contributor detected on the
first pair of underwear. The prosecution was therefore within its
“right to argue the case based on the total picture shown by the
evidence” at trial. See Houston, 2015 UT 40, ¶ 76 (cleaned up).
¶22 	At the very least, reasonable defense counsel could have
decided not to object. Counsel could have reasonably determined,
as we do, that the prosecutor’s statement was a fair description of
the evidence and that objecting would be futile. See State v.
Makaya, 2020 UT App 152, ¶ 9, 476 P.3d 1025. Or that the
prosecutor’s statement was not so inaccurate to risk highlighting
unfavorable evidence or annoying the jury by objecting. See
Hummel, 2017 UT 19, ¶ 110. In other words, objecting was not
counsel’s “only defensible choice.” See Houston, 2015 UT 40, ¶ 76
(cleaned up).
¶23 	Accordingly, counsel did not render deficient performance
by failing to object during the prosecution’s closing argument.
Phillips thus did not receive ineffective assistance of counsel in
this respect.
CONCLUSION
¶24 	Phillips has not shown that his counsel’s performance at
trial 	was objectively 	unreasonable. 	Therefore, 	his ineffective
assistance of counsel claims fail, and his convictions are affirmed.