State v. Torres-Orellana

2021 UT App 74
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellant,
v.
WILLIAM A LEXANDER T ORRES-O RELLANA,
Appellee.
Opinion
No. 20190599-CA
Filed July 9, 2021
Second District Court, Ogden Department
The Honorable Camille L. Neider
No. 171900272
Sean D. Reyes and David A. Simpson,
Attorneys for Appellant
Emily Adams, Freyja Johnson, and Cherise Bacalski,
Attorneys for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGE D AVID N. M ORTENSEN concurred. JUDGE R YAN M. HARRIS
concurred, with opinion.
ORME, Judge:
¶1 	After a jury convicted William Alexander Torres-Orellana
on one count of rape, Torres1 moved for a new trial. He argued
that his trial counsel (Trial Counsel) rendered constitutionally
ineffective 	assistance 	by 	not 	seeking 	to 	admit 	“friendly”
post-rape text messages exchanged between Torres and the
victim. The trial court agreed and granted a new trial. The State
appeals, and we reverse.
1. 	Consistent 	with 	the 	parties’ 	briefing, 	we 	refer 	to
Torres-Orellana as Torres.

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BACKGROUND2
¶2 	In July 2016, seventeen-year-old Tiffany3 met Torres, who
was then nineteen, at her place of work. Soon thereafter, they
began communicating via text message “on and off” and “hung
out a couple times.” Things got more serious by December, and
they eventually began dating.
¶3 	Because Tiffany had just given birth in November, she
told Torres via text message, soon after they began dating, that
she was not yet physically and emotionally ready for sex. Torres
told her, “I want to do it but I can wait baby for you as long as
you want till you ready to do it,” and assured her, “i really don’t
mind waiting.”4 In response, Tiffany told Torres that she felt that
2. Although the trial court granted Torres a new trial, it did not
do so on the ground that there was insufficient evidence to
support the jury’s verdict. Accordingly, “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.” Gregg v. State, 2012 UT 32, ¶ 2, 279 P.3d
396 (quotation simplified).
3. We adopt the pseudonym used by the parties in briefing. See
Utah R. App. P. 24(d) (“The 	identity of minors should be
protected by use of descriptive terms, initials, or pseudonyms.”).
4. As is not uncommon, the text messages between Torres and
Tiffany 	are 	fraught 	with 	shorthand, 	misspellings, 	a 	lack 	of
punctuation, and incorrect grammar. With one exception, we
quote them verbatim, which is the way they were introduced at
trial, lest there be any concern that in fixing them we have
distorted them, and to spare the reader more brackets than one
could reasonably be expected to endure. The exception is that we
have 	substituted 	bracketed 	references 	for 	the 	names 	of
individuals.

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she had been taken advantage of in her prior relationships, but
Torres was “different” and that she “fell . . . hard” for him.
Torres responded affectionately.
The Rape
¶4 	On January 31, 2017, Tiffany made plans to go to the mall
with Torres. Torres picked her up in his vehicle just after 7:30
p.m. Tiffany’s mother (Mother) expected her home by 9:00 p.m.
After leaving home, Tiffany soon noticed that they were not
heading to the mall and asked where they were going. Torres
responded that they “were going for a drive,” and he eventually
pulled over at a nearby park. There, the two talked for about an
hour and “[k]issed a couple of times.” Torres, who was sitting in
the driver seat that he had reclined “and pushed all the way
back,” then asked Tiffany “to get on top of him.” When Tiffany
refused, Torres attempted to pull her on top of him. Tiffany told
him, “no,” and that she “didn’t want to.” Having not succeeded
in pulling Tiffany on top of him, Torres then repeatedly told her
“to 	blow” 	him. 	Tiffany 	initially 	refused, 	but 	Torres 	was
persistent, and she eventually gave in and “did it for just a little
bit.” 	She 	then 	stopped 	and 	told 	him 	she 	“didn’t 	want 	to
anymore.”
¶5 	In response, Torres became “more determined” and told
her again “to get on top of him.” He then grabbed her by the
arms and pulled her on top of him so that she was facing him
and began pulling down her pants. Tiffany resisted, but to no
avail, as Torres was “much stronger.” She told him “multiple
times” 	that 	she 	“didn’t 	want 	to,” 	but 	Torres 	ignored 	her
demands 	and 	began 	kissing 	her 	chest 	and 	body 	and 	then
inserted his penis into her vagina. Tiffany fought back and
eventually, 	after 	“five 	minutes 	at 	the 	most,” 	succeeded 	in
pushing herself back into the passenger seat.
¶6 	Torres begged her “to keep going” and told her “it would
only take a couple more minutes . . . for him to finish.” Tiffany

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refused and told him that she “was going to get in trouble and
not be able to hang out with him anymore” if he did not take her
home, but Torres “just kept begging.” At that point, Tiffany
texted Mother that Torres would not bring her home, and
Mother responded by asking where they were. After seeing this
text exchange, Torres took Tiffany home.
¶7 	When they pulled up to the house, Torres tried to kiss
Tiffany, but she pulled away and opened the car door. He then
told her, “I love you,” but Tiffany just shut the door and walked
toward Mother, who was outside waiting for her. Inside, Mother
noticed that Tiffany’s “demeanor was off” and asked what had
happened and whether Torres had hurt her or forced her to have
sex. Tiffany “broke down” and responded, “Yeah.” Mother
immediately reported the rape to law enforcement.
¶8 	That same night, a sexual assault nurse examiner (Nurse)
examined Tiffany. The exam revealed bruises on Tiffany’s neck,
some of which were “very consistent with sucking,” and others
that appeared to be “more from pressure or a hand.” Tiffany told
Nurse that those injuries “occurred during the assault with
kissing, sucking, and grabbing of her neck” by Torres. Tiffany
also had bruising to her breasts that was “certainly . . . consistent
with grabbing of the breasts” and “with sucking.” Nurse also
noted multiple linear bruises and abrasions to Tiffany’s knees
and legs that occurred “with different motions” and concluded
they were consistent with Tiffany’s account of being pulled onto
Torres, fighting him, and hitting against various objects in the
car.
¶9 	The genital exam revealed “multiple 	sites of 	injury,”
including a rugburn-like abrasion; a small, bleeding laceration to
the perihymenal tissue; and a laceration to the right labia major
that 	was 	2.5 	centimeters 	in 	length 	and 	consistent 	“with 	a
dragging injury.” Referring specifically to the 2.5 centimeter
laceration, Nurse testified at trial that out of the approximately

State v. Torres-Orellana
20190599-CA 	5 	2021 UT App 74
200–300 	sexual 	assault 	examinations 	she 	had 	conducted
throughout her 12-year career, she had seen only “probably
three” cases in which the injuries were as severe as Tiffany’s.
Based on the injuries she observed, Nurse confirmed that it was
“safe to say that the vagina was penetrated.” She also concluded
that “several different motions” probably caused the injuries and
that 	the 	number 	of 	injuries 	suggested 	non-consensual 	sex
because 	in 	“consensual 	experiences, 	typically 	you 	would
readjust or change something if something was uncomfortable or
hurt you” and the “several sites of injury here indicate that
there’s not a correction to prevent injury.”5
¶10 	The 	forensic 	scientist 	who 	analyzed 	Tiffany’s 	sexual
assault kit testified that swabs of the perineal area revealed male
DNA but in an insufficient quantity to extract a full profile. The
swab of the vaginal area revealed no male DNA. He testified
that possible reasons for the lack of male DNA included no
penetration, transient penetration, ejaculation with low sperm
count, and wiping or cleaning the genital area.
Post-rape Communication
¶11 	Shortly after Torres dropped Tiffany off at her home, he
texted her, “Babe I’m sorry I love you babe,” followed by, “I’m
sorry babe I was alittle tired, sorry I couldn’t please you, I bet
you hate me now babe I miss you.” The next morning, Torres
sent another text message asking Tiffany to let him know when
she woke up. The following exchange ensued:
5. Nurse also testified that the genital injuries were unlikely to be
due 	to 	the 	childbirth 	Tiffany 	endured 	two 	months 	earlier
because “even a more severe laceration from childbirth [is]
usually . . . completely healed at six weeks.”

State v. Torres-Orellana
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[TIFFANY:] I just don’t wanna talk anymore, you
knew I didn’t want to have sex, i told you multiple
times and you still did it [6]
[TORRES:] What do you mean? N Babe I did but I
saw that you wanted too but I didn’t know, I didn’t
wanted to do it either, n i know you told me
multiple times, n I’m so sorry I should of just
stoped. Forgive me, I won’t do it again.
[TIFFANY:] Well why did you do it even though I
told you no and I didn’t want to
[TORRES:] I don’t know babe,n I know I’m sorry, I
don’t know how to tell you I’m sorry, I don’t want
to be fighting with you, I want to be a happy
couple, forgive me I won’t do it again
. . . .
You and [your baby] are the only persons I cared
about I freaking love you two but all that is gone
and I feel terrible about myself
[TIFFANY:] Yeah. You really hurt me.
[TORRES:] And I feel terrible about that, and all I
wanted was to never hurt you, I just don’t know
what to do, I really want you and [your baby], I
want to have a family with you I miss you n just
the thought that I won’t have you hurts me I want
to fix this
6. Tiffany sent this first message at the direction of a police
detective who was interviewing her at that time.

State v. Torres-Orellana
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. . . .
[TIFFANY:] How am I supposed to let someone
who forced me to have sex fix it. How are you
supposed to fix that
[TORRES:] I’m so sorry for that I didn’t mean to, n
I don’t know, I just wish there was I way
¶12 	Their text conversation continued in a similar manner for
another 	week, 	during 	which 	Torres 	repeatedly 	asked 	for
forgiveness, including the following statements:
• 	“I’ll do everything on my power to never hurt you ever
again”
• 	“what I’ve done is just hurt the girl of my dreams”
• 	“I just wish I could change what I did”
• 	“I fucking hate myself for that I’m so sorry . . . I just wish I
could change that”
• 	“I’m sorry I just wanna die for that just tell [Mother] I
know I made a mistake”
• 	“I promise you that that you’ll never get hurt again I
know I fucked up n 	I regret it, ugh i just want to
disappeared or something”
¶13 	Although 	Tiffany 	was 	initially 	skeptical 	of 	Torres’s
repentance, 	within 	a 	couple 	of 	days 	she 	began 	expressing
romantic feelings to him. For example, she told him, “I just want
you but idk if my mom would let anything with us happen
again,” and, “I don’t want to lose you. You’re all I want. I don’t
want anyone else.” Tiffany also unsuccessfully tried to convince
Mother 	to 	allow 	her 	to 	see 	Torres 	again. 	At 	trial, 	Tiffany

State v. Torres-Orellana
20190599-CA 	8 	2021 UT App 74
explained that although she “was super hurt” by what Torres
had done to her at the park, she “was also really dumb and
thought that [she] could give him another chance” because her
“hormones were all over the place from having a baby and [she]
just wanted to feel loved and [she] liked him a lot before it
happened.”
¶14 	Finally, after just over a week of communicating via text,
Tiffany broke things off with Torres:
I’ve tried and tried and I can’t keep fighting with
my mom every night over this. She doesn’t want
me to be with someone who did what you did after
going on 2 dates. There is nothing we can do. You
can’t take back what you did. Nothing will ever be
able to fix this. I’m sorry. Idk what to tell you but
it’s just not gonna work. I’m not gonna ruin my
relationship with my mom agin for a boy. I’m
sorry.
Torres responded that he understood and stated, “I hate myself
for what I did, n I know, I know I can’t take it backn I know n it’s
okay.” Nevertheless, the two continued to text each other until
the police arrested Torres.7
Trial and Motion for New Trial
¶15 	The 	State 	charged 	Torres with 	one 	count 	of 	rape, 	a
first-degree felony. In addition to rape, the jury was instructed
on five lesser-included offenses. As part of its case-in-chief, the
State 	introduced 	select 	text 	messages 	between 	Torres 	and
Tiffany, 	as 	well 	as 	testimony 	from, 	among 	others, 	Tiffany,
7. 	Torres 	and 	Tiffany 	exchanged 	approximately 	1,300 	text
messages between January 31, 2017, and February 9, 2017.

State v. Torres-Orellana
20190599-CA 	9 	2021 UT App 74
Mother, 	the 	forensic 	scientist, 	and 	Nurse. 	That 	evidence 	is
summarized above.
¶16 	Trial Counsel’s primary strategy was focused on arguing
that the State failed to meet its “high, high burden” of reasonable
doubt. He argued that although the text messages came from
Torres’s phone number, there was no evidence that Torres was
the one sending them. He emphasized the lack of DNA evidence
and provided the alternative theory that Tiffany, who had stayed
out past her 9:00 p.m. curfew, used Torres as a “scapegoat” to
avoid punishment. During cross-examination of Tiffany, Trial
Counsel highlighted that Tiffany did not at any point honk the
horn, attempt to flee the vehicle, or call 911 despite having access
to her phone.
¶17 	The 	jury 	found 	Torres 	guilty 	of 	rape. 	At 	Torres’s
scheduled sentencing hearing, the trial court deferred sentencing
and 	raised, 	sua 	sponte, 	concerns 	that 	the 	jury 	had 	been
improperly instructed on one of the lesser included offenses. The
court appointed Torres new counsel (Post-trial Counsel). At a
later 	hearing, 	the 	court 	also 	raised 	concerns 	about 	Trial
Counsel’s performance. Post-trial Counsel moved for a new trial
on the ground of ineffective assistance of counsel. Specifically,
Post-trial Counsel asserted that even though Trial Counsel had
access to “hundreds of text messages between” Tiffany and
Torres that were produced by the State during discovery, there
were many messages that showed “friendly interactions” shortly
after the encounter at the park that Trial Counsel did not
introduce at trial. For example, Post-trial Counsel pointed to the
following text exchange that took place on February 2, two days
after the rape:
[Torres:] I wish I could hold you in my arms one
last time
[Tiffany:] Same

State v. Torres-Orellana
20190599-CA 	10 	2021 UT App 74
[Torres:] Yeah you’re special to me. When I’m with
you I feel something is just right, I believe in you. I
really like you, and I don’t want to let you go
[Tiffany:] Same
. . . .
[Torres:] What you up to? Let me know if I start
bugging you
[Tiffany:] I’m sitting here, you? And you’re not
going to. Let me know if I bug you.
And on the following day, Tiffany initiated a plan for them to
see each other on Valentine’s Day:
[Torres:] I miss you so much baby
[Tiffany:] I miss you
. . . .
[Tiffany:] What are you doing on valentines day?
[Torres:] Probably nothing just go to my brothers n
might drink to feel better n you?
[Tiffany:] Oh ok. And nothing.
[Torres:] Yeahbut I wish I would spend it with you
n how come your not going to do anything
[Tiffany:] Well I mean I was gonna see if you
wanted to go to the movies with [some friends]
maybe but idk?
[Torres:] Oh idk i you want me to I’ll be glad

State v. Torres-Orellana
20190599-CA 	11 	2021 UT App 74
[Tiffany:] Well I do
[Torres:] Oh ok but how is your mom gonna take
that?
[Tiffany:] I’ll talk to her.
[Torres:] Oh ok just let me know what she says n
I’ll understand if she says no
[Tiffany:] She probably won’t care if [my friend] is
with me . . . And I’ll pay
[Torres:] Oh ok n no your not I’m paying n just let
me know what she says
[Tiffany:] Nooo . . . And ok
[Torres:] Yess n why do you want to pay? n okay
[Tiffany:] Because you paid all the other times. . . .
And idk what else to get you.
Post-trial Counsel argued that these and other similar “friendly
interactions” were “inconsistent with [Tiffany’s] claims of rape”
and that Trial Counsel rendered ineffective assistance by not
introducing any of those messages at trial.
¶18 	The trial court agreed and granted the motion for a new
trial, finding “that the errors and impropriety in the trial had a
substantial adverse effect upon the rights of Torres.” The court
also adopted several other theories of ineffective assistance of
counsel that neither party had briefed. Specifically, it found that
Trial Counsel’s performance had been prejudicially deficient in
the following respects: (1) “Failure to present a meaningful
defense in light of the State’s case and the serious nature of the
allegations”; (2) “Failure to admit or seek for the admission of

State v. Torres-Orellana
20190599-CA 	12 	2021 UT App 74
the texts exchange between Torres and [Tiffany] to establish
context of texts that were admitted including what Torres was
apologizing for”; (3) “Failure to meaningfully cross-examine or
impeach [Tiffany] with the content of the texts”; (4) “Failure to
object to the State’s use of the text messages including leading
questions during examination, failing to confront the State’s
statements in opening and arguments in closing regarding the
text messages and the reality of the context, actual language
used and minimization of the volume and content of the texts as
presented in trial”; (5) “Failure to question the plausibility of
[Tiffany’s] allegations about what happened”; and (6) “Failure to
provide a cogent theory of the case regarding the occurrence of
the 	intercourse/penetration; 	consent 	and 	lesser 	included
offenses; identifying the inherent improbability of the allegations
made by [Tiffany].”
¶19 	Regarding the first category of deficient performance, the
court based its conclusion that Trial Counsel had not presented a
meaningful defense on the following facts:
Prior 	to 	trial, 	the 	Court 	received 	no 	pre-trial
motions or motions in limine from either side and
made no pre-trial rulings on the evidence. At trial,
[Trial 	Counsel] 	made 	a 	2–3 	minute 	opening
argument, asked 44 cross-examination questions in
total, presented no case for defense, and gave a 10
minute closing argument. There were no motions
at the end of the State’s case.
The court concluded that although it could “conceive of a sound
trial strategy to not ask all relevant questions or present all
possible evidence in defense, it belies logic that a reasonable
strategy would include forgo asking any relevant questions or
present any relevant evidence.” Accordingly, citing Menzies v.
Galetka, 2006 UT 81, ¶ 98, 150 P.3d 480, the court determined that
Trial Counsel had constructively deprived Torres of the effective

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20190599-CA 	13 	2021 UT App 74
assistance of counsel because he had failed “to subject the
opposition’s case to meaningful adversarial testing.” See infra
note 8.
¶20 	Concerning 	categories 	(2) 	through 	(4) 	of 	deficient
performance related to the text messages, the court noted that
the 	State 	introduced 	13 	text 	messages 	between 	Torres 	and
Tiffany that were sent before Torres picked her up on January 31
and 72 messages that took place between the time he dropped
her off at her home and his arrest a little over a week later. The
court stated that although these texts were not the sole evidence
the State relied on, “they were used significantly in the State’s
case” and “were central to the State’s opening, presentation of
evidence and closing.” After reviewing the approximately 1,300
text messages sent between January 31 and February 9, the court
concluded that “there are numerous texts that would have been
favorable to [Torres]” because “the total text communications are
significantly different than what was presented to the jury about
the post-park thoughts of [Tiffany].” It further noted that while
the 72 texts the State relied on “indicated [Tiffany] was unhappy,
hurt, wanted to give up and was potentially suicidal” and
“showed 	[Tiffany] 	did 	not 	know 	what 	to 	do 	about 	the
relationship and she was torn between the opinion of her mother
and wanting to make the relationship with Torres work,” “[t]he
entire text conversation . . . paints a different light about [her]
reactions 	after 	January 	31, 	2017.” 	Specifically, 	the 	court
summarized 	the 	texts 	that 	were 	potentially 	helpful 	to 	the
defense as
[Tiffany] initiating plans for Valentine’s Day with
Torres, her thoughts on . . . moving out together,
getting married, being together as a couple, Torres
being 	a 	father 	figure 	to 	[Tiffany’s] 	new 	baby,
[Tiffany] and Torres making plans to sneak out and
see each other, [Tiffany] sending romantic pictures
of her and Torres, [Tiffany] sending . . . pictures of

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20190599-CA 	14 	2021 UT App 74
Torres and her baby, [Tiffany’s] frustrations with
school, the baby and her mother, and [Tiffany’s]
feelings of love and affection for Torres. There are
also texts that question whether the dark place
[Tiffany] is in is a response to what happened at
the park or a response to the restrictions imposed
by her mom, the difficulties of being a new mom,
hormonal issues from giving birth and being back
on birth control. [Tiffany’s] texts also contain many
mundane matters such as shopping, clothes and
shoes, buying a puppy, homework, etc.
In light of this, the court determined “the texts in total to be a
contrast to [Tiffany’s] allegations and testimony that a violent,
forceful rape which left her bruised and injured at the hands of
Torres had just occurred prior to the 8 days of subsequent
contact by text, facetime and phone calls.”
¶21 	Although 	the 	court 	did 	not 	“believe 	the 	State
affirmatively misrepresented the 72 texts that were presented,” it
concluded that Trial Counsel’s failure to seek admission of any
of the more favorable texts in rebuttal resulted in “the State’s
case [being] unchallenged.” Moreover, the court held, “There is
no reasonable trial strategy that accounts for failure to admit the
text conversations or cross-examining [Tiffany’s] testimony both
for what she said and how she subsequently acted” and “for
failing to admit favorable evidence to the defense that has been
provided by the State.” Additionally, the court stated that Trial
Counsel’s failure to object to the State’s leading questions during
Tiffany’s testimony 	permitted 	the 	State 	“to 	‘move the 	ball’
significantly.”
¶22 	Regarding the fifth category of deficient performance, the
court stated that although Trial Counsel cross-examined Tiffany
regarding her failure to call 911, text Mother for help, or flee the
vehicle, he did not address the “logistical, mechanical and even

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20190599-CA 	15 	2021 UT App 74
physical problems” with the acts Tiffany had described on the
stand. And, while “[i]t certainly could be a reasonable strategic
decision to not cross [Tiffany] and to let her testimony stand as it
was 	presented,” 	the 	court 	concluded 	that 	“it 	would 	be
unreasonable and not sound trial strategy to not cross her and
not address or point out the problems in closing argument.”
¶23 	Lastly, 	concerning 	the 	sixth 	category 	of 	deficient
performance, the court concluded that Trial Counsel’s opening
statement and closing argument “contradicted each other and
provided no cogent defense theory.” The court pointed to Trial
Counsel’s remark during closing argument about the absence of
male DNA evidence “in the areas that would demonstrate rape,”
which contradicted his opening statement in which he conceded
that a consensual sexual encounter had occurred. The court
ruled 	that 	although 	“[a]djusting 	to 	change 	would 	not 	be
considered ineffective assistance[,] . . . failure to defend in this
manner is ineffective.” Additionally, the court noted that Trial
Counsel “only made passing reference to the lesser included
offenses [without] any explanation as to what the jury should do
with them.” “In essence,” the court concluded, “there was no
defense presented in this case.”
¶24 	Turning to prejudice, the court applied the cumulative
error doctrine and determined “that the compounding of each
error described above . . . undermines the Court’s confidence in
the jury’s verdict and that Torres received a fair trial.”8 It
8. The trial court alternatively determined that it could presume
prejudice 	because 	Trial 	Counsel’s 	“[f]ailure 	to 	present 	a
meaningful defense in light of the State’s case and the serious
nature of the allegations” constructively deprived Torres of the
effective assistance of counsel. See supra ¶¶ 18–19. See United
States v. Cronic, 466 U.S. 648, 659 (1984) (“[I]f counsel entirely
fails to subject the prosecution’s case to meaningful adversarial
testing, then there has been a denial of Sixth Amendment rights
(continued…)

State v. Torres-Orellana
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reasoned that “[a]lthough the State had other evidence regarding
the 	allegations 	at 	trial, 	the 	evidence 	hinged 	on 	[Tiffany’s]
complaint of the rape and the admissions made by Torres in the
text conversations”—both of which the court had determined
were tarnished by Trial Counsel’s deficient performance—and
“[n]one of the additional evidence stood alone and separate from
this evidence.” Referring to Nurse’s testimony, the court stated
that it, “like the rest of the State’s case, was unchallenged on
cross-examination and not countered with testimony, evidence
or 	even 	argument 	in 	closing.” 	The 	court 	stated 	that 	“[n]o
reasonable trial strategy accounts for letting hickies be only
referred to as bruises, [9] to identify that no bruises were found on
[Tiffany’s] arms or on her back where they would be expected
based on her testimony of the force used and the confined
conditions in the car and that vaginal injuries can occur from
consensual sexual contact as well.”
¶25 	Having 	concluded 	that 	Trial 	Counsel 	performed
deficiently in these several respects and that the cumulative
(…continued)
that 	makes 	the 	adversary 	process 	itself 	presumptively
unreliable.”); Menzies v. Galetka, 2006 UT 81, ¶¶ 98–99, 150 P.3d
480 	(“A 	constructive 	denial 	of 	counsel 	occurs 	if 	counsel
completely fails to subject the opposition’s case to meaningful
adversarial testing. . . . Constructive denials of counsel have also
been found where, due to counsel’s deficient performance, a
proceeding itself is forfeited. A denial of the entire judicial
proceeding itself, which [proceeding] a litigant wanted at the
time and to which he had a right, demands a presumption of
prejudice 	because 	the 	litigant 	has 	been 	entirely 	denied 	the
adversary process.”) (quotation simplified). Both sides agree that
this determination was in error, and we do not address it further.
9. Torres concedes that the court’s statement concerning hickies
being consistently equated to bruises has no basis in the record.

State v. Torres-Orellana
20190599-CA 	17 	2021 UT App 74
effect 	of 	those 	errors 	prejudiced 	Torres, 	the 	court 	granted
Post-trial Counsel’s motion for a new trial. The State appeals.
ISSUE AND STANDARDS OF REVIEW
¶26 	The State argues that the trial court erred in granting
Torres a new trial on the ground of ineffective assistance of
counsel. Ordinarily, we review a court’s ruling on a motion for a
new trial for an abuse of discretion. State v. J.A.L., 2011 UT 27,
¶ 20, 262 P.3d 1. See also State v. De La Rosa, 2019 UT App 110,
¶ 4, 445 P.3d 955 (stating that the abuse of discretion standard is
“highly deferential to the trial court’s ruling in that we assume
that the district court exercised proper discretion unless the
record clearly shows the contrary”) (quotation simplified). But
when a defendant moves for a new trial on ineffective assistance
of counsel grounds, we apply the standard of review set forth in
Strickland v. Washington, 466 U.S. 668 (1984). See J.A.L., 2011 UT
27, ¶ 20 (“An ineffective assistance of counsel claim is a mixed
question of law and fact.”); State v. Templin, 805 P.2d 182, 185–86
(Utah 1990) (“There is no reason . . . to depart from the standard
of review set out in Strickland simply because the appeal was
preceded by a motion for new trial.”). Specifically, “ineffective
assistance of counsel claims present a mixed question of fact and
law.” Templin, 805 P.2d at 186 (citing Strickland, 466 U.S. at 698).
We review a trial court’s application of the law to the facts for
correctness and, if applicable, we review the court’s findings of
fact for clear error.10 See J.A.L., 2011 UT 27, ¶ 20.
10. 	Regarding 	our 	treatment 	of the 	prejudice 	prong of 	the
Strickland test in the context of a trial court’s grant of a new trial,
we note that this approach represents a departure from the
general 	“recognition 	that 	trial 	courts are 	in 	an 	advantaged
position to that of appellate courts to determine the impact of
events occurring in the courtroom on the total proceedings,”
(continued…)

State v. Torres-Orellana
20190599-CA 	18 	2021 UT App 74
(…continued)
resulting in a more deferential review. State v. De La Rosa, 2019
UT App 110, ¶ 5, 445 P.3d 955 (quotation simplified). See Doug
Jessop Constr., Inc. v. Anderton, 2008 UT App 348, ¶ 15, 195 P.3d
493 (“A trial judge is in the best position to derive a sense of the
proceeding as a whole, something an appellate court cannot
hope to garner from a cold record.”) (quotation simplified). But
in the ineffective assistance of counsel context, our Supreme
Court has held that “the trial court’s direct observations do not
generally 	play 	a 	role 	in 	determining 	whether 	a 	defendant
received effective assistance of counsel and that it is unnecessary
to grant deference to the district court in the minority of cases
where an ineffective assistance of counsel claim is first raised
before that court.” Menzies v. Galetka, 2006 UT 81, ¶ 58, 150 P.3d
480. 	While 	perplexing 	at 	some 	level—a 	matter 	more 	fully
explored 	in 	Judge 	Harris’s 	fine 	concurring 	opinion—this
approach 	is 	consistent 	with 	that 	taken 	in 	several 	other
jurisdictions. See, e.g., People v. O’Hearn, 270 Cal. Rptr. 3d 901, 913
(Ct. 	App. 	2020) 	(“Both 	the 	performance 	and 	prejudice
components of the ineffectiveness inquiry are mixed questions of
law and fact. Therefore, as to both performance and prejudice,
we owe the trial court no deference.”) (quotation simplified);
Stephens v. State, 748 So. 2d 1028, 1034 (Fla. 1999) (“The second
prong of the ineffective assistance of counsel test focuses on the
reliability of the proceeding and has never been subject to an
abuse of discretion standard of review[.]”); State v. Carter, 781
N.W.2d 527, 538 (Wis. Ct. App. 2010) (“[T]he determination of
deficient performance and prejudice are questions of law that we
review without deference to the trial court.”). But see State v.
Waitkus, 778 P.2d 1283, 1285 (Ariz. Ct. App. 1989) (“We accord
great deference to the trial court’s finding of lack of prejudice in
ineffective assistance 	of counsel cases.”); 	Kober v. State, 988
S.W.2d 230, 233 (Tex. Crim. App. 1999) (“Although the prejudice
prong of Strickland is a mixed question of law and fact, that
question often contains subsidiary questions of historical fact,
(continued…)

State v. Torres-Orellana
20190599-CA 	19 	2021 UT App 74
ANALYSIS
¶27 	A claim of ineffective assistance of counsel requires a
criminal defendant to show both that (1) “counsel’s performance
was deficient” and (2) “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “A
defendant’s inability to establish either element defeats a claim
for ineffective assistance of counsel.” State v. Cruz, 2020 UT App
157, ¶ 17, 478 P.3d 631 (quotation simplified).
¶28 	To establish deficient performance, the defendant must
show 	that 	trial 	counsel’s 	actions 	“fell 	below 	an 	objective
standard 	of 	reasonableness,” 	which 	entails 	overcoming 	the
“strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Strickland, 466 U.S.
at 688–89. Indeed, “even if an [act or] omission is inadvertent
and not due to a purposeful strategy, relief is not automatic.”
State 	v. 	Ray, 	2020 	UT 	12, 	¶ 	34, 	469 	P.3d 	871 	(quotation
simplified). Instead, “even if a court concludes that counsel
made 	an 	error, 	the 	ultimate 	question 	is 	always 	whether,
considering all the circumstances, counsel’s acts or omissions
were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36,
462 P.3d 350.
¶29 	To 	establish 	prejudice, 	the 	“defendant 	must 	present
sufficient evidence to support a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Archuleta v. Galetka, 2011 UT 73,
¶ 40, 	267 	P.3d 	232 	(quotation 	simplified). 	“A 	reasonable
(…continued)
some of which may turn upon the credibility and demeanor of
witnesses. Appellate courts must afford almost total deference to
a trial court’s determination of the historical facts and of mixed
questions of law and fact that turn on an evaluation of credibility
and demeanor.”) (quotation simplified).

State v. Torres-Orellana
20190599-CA 	20 	2021 UT App 74
probability is a probability sufficient to undermine confidence in
the 	outcome.” 	Strickland, 	466 	U.S. 	at 	694. 	In 	determining
prejudice, “an appellate court should consider the totality of the
evidence, taking into account such factors as whether the errors
affect the entire evidentiary picture or have an isolated effect and
how strongly the verdict is supported by the record.” Gregg v.
State, 2012 UT 32, ¶ 21, 279 P.3d 396 (quotation simplified). See
State v. Lopez, 2019 UT App 11, ¶ 35, 438 P.3d 950 (holding that
based on the “overwhelming evidence . . . introduced at trial,”
there was “no reasonable probability that,” absent the error, the
outcome would have been more favorable to the defendant);
State v. King, 2010 UT App 396, ¶ 35, 248 P.3d 984 (“While we
more readily find errors to be harmless when confronted with
overwhelming evidence of the defendant’s guilt, we are more
willing to reverse when a conviction is based on comparatively
thin evidence.”) (internal citations omitted).
I. Text Messages
¶30 	The trial court ruled that Trial Counsel’s performance was
deficient because he did not introduce the text messages that the
court 	determined 	“in 	total 	to 	be 	a 	contrast 	to 	[Tiffany’s]
allegations and testimony that a violent, forceful rape which left
her bruised and injured at the hands of Torres had just occurred
prior to the 8 days of subsequent contact by text, facetime and
phone calls.” Relatedly, the court also held that Trial Counsel
had 	performed 	deficiently 	in 	failing 	“to 	meaningfully
cross-examine or impeach [Tiffany] with the content of [the]
texts” and “failing to confront the State’s statements in opening
and arguments in closing regarding the text messages and the
reality of the context, actual language used and minimization of
the volume and content of the texts as presented in trial.” But
even assuming, without deciding, that Trial Counsel performed
deficiently 	in 	these 	respects, 	these 	claims 	fail 	for 	lack 	of

State v. Torres-Orellana
20190599-CA 	21 	2021 UT App 74
prejudice.11 See State v. Galindo, 2017 UT App 117, ¶ 7, 402 P.3d 8
(“If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, that course should be
followed.”) (quotation simplified).
¶31 	In determining that Torres was prejudiced, the trial court
concluded 	that 	none 	of 	the 	additional 	evidence 	the 	State
presented “stood alone and separate from” Tiffany’s testimony
and the admitted text messages. This analysis focused mainly on
Nurse’s testimony. Although recognizing that the testimony and
documented injuries “certainly are corroborating evidence of
rape,” the court stated that the testimony “was unchallenged on
cross-examination and not countered with testimony, evidence
or even argument in closing.” Specifically, “potential issues . . .
were left unexplored,” such as the lack of bruises on Tiffany’s
arms or back “where they would be expected based on her
testimony of the force used and the confined conditions in the
car,” and that “vaginal injuries can occur from consensual sexual
contact as well.” We disagree with the court’s analysis.
11. The trial court determined that the cumulative effect of all the
errors “undermine[d its] confidence in the jury’s verdict and that
Torres received a fair trial.” See State v. Maestas, 2012 UT App 53,
¶ 18, 272 P.3d 769. We conclude that the cumulative error
doctrine does not apply to this case because Trial Counsel did
not perform deficiently in two of the three non-text-related
instances discussed in section II below, and we hold that the
remaining non-text-related instance, “standing alone, has [no]
conceivable potential for harm.” See State v. Martinez-Castellanos,
2018 UT 46, ¶ 42, 428 P.3d 1038. Accordingly, there is no other
error 	with 	which 	to 	cumulate 	Trial 	Counsel’s 	presumed
text-related 	errors—which, 	as 	we 	determine 	infra, 	do 	not
undermine our confidence in the outcome of the trial—and the
cumulative error doctrine therefore does not apply.

State v. Torres-Orellana
20190599-CA 	22 	2021 UT App 74
¶32 	As an initial matter, the jury was aware that Tiffany
continued to speak with Torres and even to express affection for
him following the events of January 31. To provide context for
the text messages that were admitted, the State did include
certain favorable messages from Tiffany to Torres, including
these three:
• 	[Tiffany:] I know. . I just want you but idk if my mom
would let anything with us happen again.
• 	[Tiffany:] I don’t want to lose you. You’re all I want. I
don’t want anyone else. But idk.
• 	[Tiffany:] Yeah but the thing is if my mom doesn’t want
me with you I can’t be with you. I love you and want you
a lot but I can’t disrespect my mom. . . .
The State also introduced several text messages in which Tiffany
told Torres that she was trying to convince Mother to allow them
to keep seeing each other. Additionally, the State told the jurors
in its opening statement that they would see some texts between
Tiffany and Torres that would show that “a part of [Tiffany]
wanted things to go back to the way they were before [Torres]
raped her” and that she “thought that they could still make
[their relationship] work.” And during her testimony, Tiffany
explained 	that 	she 	“thought 	that 	[she] 	could 	give 	[Torres]
another chance” because her “hormones were all over the place
from having a baby and [she] just wanted to feel loved and [she]
liked him a lot before it happened.”
¶33 	Accordingly, although the jury might not have known the
full 	extent 	to 	which 	Tiffany 	expressed 	affection 	for 	Torres
following the rape, it was nonetheless aware that Tiffany had
continued to communicate with Torres and wished, at least at
first, to continue her relationship with him following the events
of January 31. In light of this, our review of the record leads us to
conclude that Trial Counsel’s decision not to seek the admission

State v. Torres-Orellana
20190599-CA 	23 	2021 UT App 74
of additional favorable texts or to challenge statements the State
made in reference to the texts during opening and closing did
not materially affect the entire evidentiary picture.12 See Gregg v.
State, 2012 UT 32, ¶ 21, 279 P.3d 396.
¶34 	Ample additional evidence supported Torres’s conviction,
including, most notably, the texted admissions he made in the
week following the rape and Nurse’s testimony regarding her
physical examination of Tiffany. Concerning the former, Torres
repeatedly apologized for forcing Tiffany to have sex and swore
it 	would 	never 	happen 	again. 	See 	supra 	¶¶ 	11–12. 	Torres
contends that “the texts the State portrays as confessions are
ambiguous . . . because they are paired with [Torres’s] surprised,
‘What do you mean?,’ and his statements, ‘but I saw that you
wanted too’ and ‘but I didn’t know.’” We agree that certain of
Torres’s 	statements 	could 	be 	subject 	to 	more 	than 	one
interpretation. But not so with others. Most notably, when, with
our emphasis, Tiffany unambiguously confronted Torres the
next day, “How am I supposed to let someone who forced me to
12. Moreover, Tiffany’s expressions of affection toward Torres
do not necessarily cut only in Torres’s favor. Even the “friendly”
texts are not necessarily inconsistent with rape. Utah courts have
recognized 	“that 	rape 	victims 	display 	a 	diverse 	range 	of
reactions to the harm they suffered,” State v. Jok, 2019 UT App
138, ¶ 24, 449 P.3d 610, cert. granted, 456 P.3d 386 (Utah 2019),
and that “not all rape victims will . . . have no further interaction
with their rapists,” State v. Nunes, 2020 UT App 145, ¶ 30 n.12,
476 P.3d 172. Furthermore, Trial Counsel argued at trial that
Tiffany used Torres as a “scapegoat” to avoid punishment for
staying out past curfew. The admission of additional friendly
texts could have possibly undermined this theory because a jury,
upon reading Tiffany’s texts to Torres, might disbelieve that she
would use someone of whom she was so fond as a scapegoat just
to avoid parental discipline, given how serious the repercussions
would be for Torres.

State v. Torres-Orellana
20190599-CA 	24 	2021 UT App 74
have sex fix it. How are you supposed to fix that,” Torres
responded, “I’m so sorry for that I didn’t mean to, n I don’t
know, I just wish there was I way.” Such an admission clearly
supported the jury’s verdict.
¶35 	Finally, Nurse’s examination and trial testimony were
particularly damaging to Torres’s defense as they provided
strong evidence in support of Tiffany’s rape allegation. The trial
court discounted Nurse’s testimony on the ground that Trial
Counsel failed to elicit testimony from Nurse “that vaginal
injuries can occur from consensual sexual contact as well.” But
while that might generally be true, Nurse testified that Tiffany’s
genital exam revealed some of the most severe injuries she had
seen in her 12-year career. Furthermore, Nurse concluded that
“several different motions” caused the injuries and the number
of injuries suggested non-consensual sex because in “consensual
experiences, typically you would readjust or change something
if something was uncomfortable or hurt you” and the “several
sites of injury here indicate that there’s not a correction to
prevent injury.” Had Trial Counsel asked whether Tiffany’s
injuries could have resulted from consensual sex, Nurse would
presumably have repeated this point.13
¶36 	In 	sum, 	because 	the 	jury 	was 	already 	aware 	of 	the
“friendly” post-rape interaction between Torres and Tiffany, and
because Tiffany’s allegation of rape was supported by strong
13. The trial court also discounted Nurse’s testimony on the
ground that Trial Counsel failed “to identify that no bruises
were found on [ Tiffany’s] arms or on her back where they would
be expected based on her testimony of the force used.” This,
however, does not undermine the compelling physical evidence
discussed above that was consistent with Tiffany’s account that
the sexual encounter was forcible and nonconsensual, and does
not discount the evidence of bruises elsewhere on Tiffany’s
body.

State v. Torres-Orellana
20190599-CA 	25 	2021 UT App 74
physical 	evidence 	and 	texts 	in 	which 	Torres 	apologized 	to
Tiffany after she unambiguously accused him of “forc[ing her] to
have sex,” we conclude that Trial Counsel’s perceived error in
not seeking to admit more of the “friendly” text messages did
not prejudice Torres.14
II. Remaining Claims of Ineffective Assistance
¶37 	The trial court also ruled that Trial Counsel rendered
ineffective assistance in three instances that were unrelated to
the 	text 	message 	exchanges: 	(1) 	“[f]ailure 	to 	question 	the
plausibility of [Tiffany’s] allegations about what happened,”
14. Relatedly, the trial court also determined that Trial Counsel
performed deficiently by failing “to object to the State’s use of
the 	text 	messages 	including 	leading 	questions 	during
examination” of Tiffany. Our review of this ground of ineffective
assistance 	is 	limited 	because 	the 	court 	never 	identified 	the
specific questions to which Trial Counsel should have objected.
With this in mind, even assuming deficient performance in this
general respect, any assumed error was not prejudicial because
any objection would have been toward the form and not the
substance 	of 	the 	question. 	The 	State 	would 	have 	then
presumably been given the opportunity to rephrase its questions
and present the substance of the text messages to the jury using
non-leading questions.
Torres argues that although 	“[t]he 	language 	of 	the 	[text
messages] might have come in,” the record is unclear as to “how
the prosecutor’s tone of voice [while reading the messages
aloud] impacted the jury.” While the trial court determined that
the 	prosecutor’s 	use 	of 	leading 	questions 	was 	problematic
because it allowed him “to ‘move the ball’ significantly, it did
not determine that the prosecutor’s tone of voice negatively
impacted the jury. Furthermore, Torres’s argument is unavailing
because 	“[s]uch 	speculation 	is 	insufficient 	to 	demonstrate
prejudice.” See State v. Hards, 2015 UT App 42, ¶ 22, 345 P.3d 769.

State v. Torres-Orellana
20190599-CA 	26 	2021 UT App 74
(2) failure “to provide a cogent theory of the case regarding the
occurrence of the intercourse/penetration,” and (3) “failure to
address the lesser included offenses.” We address each in turn
and conclude that they do not amount to ineffective assistance.
¶38 	Concerning 	Trial 	Counsel’s 	failure 	to 	challenge 	the
plausibility of Tiffany’s allegations, the court stated that “[t]he
very acts described by [Tiffany] . . . had logistical, mechanical
and even physical problems that were not explained or explored
while she was on the stand” or discussed during Trial Counsel’s
closing 	arguments. 	The 	court 	did 	not 	identify 	the 	specific
“logistical, mechanical, and . . . physical problems” to which it
referred, but later, in discussing Nurse’s testimony in the context
of prejudice, the court stated that “no bruises were found on
[Tiffany’s] arms or on her back where they would be expected
based on her testimony of the force used.” Accordingly, we limit
our analysis to this contention.
¶39 	Even 	assuming, 	without 	deciding, 	that 	Trial 	Counsel
performed deficiently in this regard, such an omission did not
prejudice Torres. As discussed above, strong physical evidence
supported 	Tiffany’s 	version 	of 	events. 	Nurse 	testified 	that
bruising to Tiffany’s legs was consistent with her account of
being pulled from the passenger seat to the driver seat and
hitting up against objects during the ensuing struggle. More
importantly, 	Nurse 	testified 	regarding 	the 	number 	and
seriousness of the injuries Tiffany suffered to her genital area
that were caused by “several different motions,” which was
highly indicative of non-consensual sex. The court’s belief that
Tiffany should also have sustained bruising to her arms and
back, 	on 	the 	other 	hand, 	was 	no 	more 	than 	speculation
unsupported by record evidence. Indeed, had Trial Counsel
asked Nurse about the apparent lack of bruising in some areas, it
is 	unclear 	whether 	Nurse 	would 	have 	confirmed 	that 	the
absence was unusual or merely stated that it was inconclusive.
Accordingly, Trial Counsel’s perceived failure to point out or

State v. Torres-Orellana
20190599-CA 	27 	2021 UT App 74
inquire into the absence of bruising on Tiffany’s arms and back
was not prejudicial. See State v. Von Niederhausern, 2018 UT App
149, ¶ 30, 427 P.3d 1277 (“Proof of prejudice must be based on a
demonstrable reality and not a speculative matter.”) (quotation
simplified).
¶40 	Next, 	the 	trial 	court 	determined 	that 	Trial
Counsel performed deficiently by failing “to provide a cogent
theory 	of 	the 	case 	regarding 	the 	occurrence 	of 	the
intercourse/penetration.” Specifically, the court pointed to Trial
Counsel’s seemingly contradictory comments made during his
opening statement and closing argument. During his opening
statement, Trial Counsel conceded that Tiffany and Torres had
engaged 	in 	sex, 	albeit 	consensually. 	But 	during 	closing
argument, 	Trial 	Counsel 	pointed 	to 	the 	fact 	that 	no 	DNA
evidence was found “in the areas that would demonstrate rape.”
Although acknowledging that “trials are dynamic and changes
occur often” and that “[a]djusting to change would not be
considered ineffective assistance,” the court simply concluded
that “failure to defend in this manner is ineffective,” without
providing further explanation.
¶41 	The court incorrectly stated that Trial Counsel limited the
argument concerning the lack of male DNA evidence to his
closing 	argument—he 	also 	pointed 	to 	the 	paucity 	of 	DNA
evidence during his opening statement, following which he
stated that Tiffany and Torres engaged in consensual sex that
night. 	Furthermore, 	the 	two 	statements 	are 	not 	necessarily
inconsistent. Trial Counsel did not specify the form of sex in
which the two engaged. In context, Trial Counsel was likely
referring to the oral sex Tiffany testified to briefly performing on
Torres prior to the rape or even the kissing and sucking that
likely resulted in at least some of the bruising on Tiffany’s chest,
neither of which would have resulted in Torres’s DNA being
transferred to Tiffany’s genital area. Thus, while acknowledging
that sexual activity did occur that night, given that the rape

State v. Torres-Orellana
20190599-CA 	28 	2021 UT App 74
allegation 	involved 	vaginal 	penetration 	Trial 	Counsel
emphasized the lack of DNA evidence because it did not support
the 	penetration 	allegation.15 	Conversely, 	the 	lack 	of 	DNA
evidence in the relevant areas might also suggest that the sexual
encounter that admittedly did occur, which Torres asserted was
consensual, did not culminate in ejaculation, perhaps because
Torres was eventually responsive to Tiffany’s request that he
stop. In any event, Trial Counsel’s concession that Tiffany and
Torres engaged in sex that night and his emphasis on the lack of
DNA 	evidence 	were 	not 	“objectively 	unreasonable” 	and
therefore did not amount to deficient performance. See State v.
Scott, 2020 UT 13, ¶ 36, 462 P.3d 350.
¶42 	Lastly, 	concerning 	the 	“failure 	to 	address 	the 	lesser
included offenses,” the court faulted Trial Counsel for “only
ma[king] passing reference to the [five] lesser included offenses
[without] any explanation as to what the jury should do with
them.” 	We 	conclude 	that 	Trial 	Counsel 	did 	not 	perform
deficiently in this regard.
¶43 	Apparently having concluded that the instructions spoke
for themselves, Trial Counsel told the jury during closing, “I’m
not going to go over the instructions, the elements. You guys can
read.” 	A 	competent 	attorney, 	having 	determined 	that 	the
instructions were clear on their face—which determination has
not been challenged as untenable16—could certainly choose to
15. To be sure, strong evidence of vaginal rape existed in the
form 	of 	Nurse’s 	examination 	and 	testimony 	regarding 	the
number and seriousness of the injuries to the genital area. But it
was not objectively unreasonable for Trial Counsel to cast doubt
on the allegation in whatever manner was available.
16. Although the trial court initially expressed concern regarding
one of the lesser-included-offense instructions, Torres did not
seek a new trial on this ground, and the court did not address
(continued…)

State v. Torres-Orellana
20190599-CA 	29 	2021 UT App 74
omit a lengthy discussion of the elements of five offenses for the
sake of brevity or to focus the jury’s attention on other aspects of
the 	case. 	Such 	a 	decision 	is 	certainly 	defense 	counsel’s
prerogative. 	See 	Yarborough 	v. 	Gentry, 	540 	U.S. 	1, 	8 	(2003)
(“[J]udicious selection of arguments for summation is a core
exercise of defense counsel’s discretion.”); id. at 7 (“Focusing on
a small number of key points may be more persuasive than a
shotgun approach.”). Accordingly, it cannot be said that Trial
Counsel’s election 	not 	to 	discuss the 	lesser-included-offense
instructions during closing was “objectively unreasonable.” See
Scott, 2020 UT 13, ¶ 36.
CONCLUSION
¶44 	Reviewing 	the 	trial 	court’s 	ineffective 	assistance 	of
counsel decision nondeferentially, we conclude that Torres was
not deprived of the effective assistance of counsel. Notably, Trial
Counsel’s decision not to introduce the additional favorable
post-rape text exchanges between Tiffany and Torres was not
prejudicial 	because 	the 	jury 	was 	already 	aware 	of 	their
attempted reconciliation and expressions of affection toward
each other and because other strong evidence supported the
jury’s verdict. The trial court also erred in concluding that Trial
Counsel 	rendered 	ineffective 	assistance 	in 	the 	remaining
non-text-related 	instances 	that 	it 	addressed 	in 	its 	order.
Accordingly, we set aside the trial court’s grant of a new trial
and remand for the entry of conviction on the verdict returned
by the jury and for sentencing.
(…continued)
this issue in its order granting a new trial. And on appeal, there
is no claim that the jury instructions on the lesser-included
offenses were not proper.

State v. Torres-Orellana
20190599-CA 	30 	2021 UT App 74
HARRIS, Judge (concurring):
¶45 	We are asked to assess claims of ineffective assistance of
counsel on a regular basis. Pursuant to Utah’s pattern and
practice, in the vast majority of cases—at least on direct appeal—
such claims are brought to us in the first instance, and there is no
lower court decision on the matter for us to review. See, e.g.,
Menzies v. Galetka, 2006 UT 81, ¶ 58, 150 P.3d 480 (“Ineffective
assistance of counsel claims are a unique species of claim that are
frequently raised for the first time on appeal and are regularly
decided based on the record.”). In those cases, we often state
that, “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 assistance of counsel as a matter of
law.” See, e.g., Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d
587 (quotation simplified).
¶46 	But on occasion, we are asked to review, on direct appeal,
ineffective assistance claims that have already been considered
by a trial court, usually in the context of a motion for new trial
filed by a defendant’s newly hired post-trial counsel. See, e.g.,
Menzies, 2006 UT 81, ¶¶ 4, 56–58; State v. Templin, 805 P.2d 182,
185–86 (Utah 1990). The case before us today comes to us in this
less-typical procedural posture. And in these cases, our supreme
court has instructed 	us to review the trial court’s decision
nondeferentially. See Menzies, 2006 UT 81, ¶ 58 (stating that “it is
unnecessary 	to 	grant 	deference 	to 	the 	district 	court 	in 	the
minority of cases where an ineffective assistance of counsel claim
is first raised before that court”); see also supra ¶ 26. We are, of
course, bound to follow the pronouncements of our supreme
court, and therefore we must apply a nondeferential standard of
review in assessing the propriety of the court’s decision to grant
Torres’s motion for new trial. And applying that standard of
review, I fully concur in the well-reasoned analysis of the lead
opinion.

State v. Torres-Orellana
20190599-CA 	31 	2021 UT App 74
¶47 	But in this case, my vote might well have been different
had we applied a more deferential standard of review, as we
often do in cases where the same trial judge who presided over a
trial made a decision on a motion for new trial. See Sanpete Am.,
LLC v. Willardsen, 2011 UT 48, ¶¶ 28–29, 269 P.3d 118 (stating
that 	“we 	afford 	trial 	judges 	wide 	latitude 	in 	granting 	or
denying” motions for new trial “because the trial court, having
heard the evidence, typically is in a better position to determine
whether the grant or denial of a [motion for new trial] is
warranted,” 	but 	declining 	to 	extend 	the same 	deference 	to
rulings made by a “successor judge” who “did not preside over
trial”). In criminal cases, trial courts are given discretion to
“grant a new trial in the interest of justice if there is any error or
impropriety which had a substantial adverse effect upon the
rights of a party.” See Utah R. Crim. P. 24(a). And as a general
matter, “this standard is highly deferential to the trial court’s
ruling,” and appellate courts are to “assume that the [trial] court
exercised proper discretion unless the record clearly shows the
contrary.” See State v. De La Rosa, 2019 UT App 110, ¶ 4, 445 P.3d
955 (quotation simplified). The reasons for applying a deferential
standard of review in such cases are relatively obvious: judges
asked to rule on motions for a new trial regarding trials over
which they presided “are in an advantaged position to that of
appellate courts to determine the impact of events occurring in
the courtroom on the total proceedings.” See id. ¶ 5 (quotation
simplified). There is simply no jurist better positioned to assess
whether 	“the 	interest 	of 	justice” 	requires 	a 	new 	trial, 	and
whether a trial error or impropriety has caused a “substantial
adverse effect” on the defendant’s rights, see Utah R. Crim. P.
24(a), than the jurist who just finished personally observing the
entire warp and weft of trial.
¶48 	To 	succeed 	on 	a 	claim 	of 	ineffective 	assistance, 	a
defendant must demonstrate both that his attorney performed
deficiently and that the attorney’s deficient performance was
prejudicial. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

State v. Torres-Orellana
20190599-CA 	32 	2021 UT App 74
“[B]oth 	the 	performance 	and 	prejudice 	components 	of 	the
ineffectiveness inquiry are mixed questions of law and fact.” Id.
at 698. As explained in Sawyer v. Department of Workforce Services,
2015 UT 33, 345 P.3d 1253, Utah law “envision[s] multiple
standards 	of 	review 	for 	various 	types 	of 	mixed 	questions,
occupying 	a 	spectrum 	of 	deference 	falling 	between 	the
nondeferential 	de 	novo 	standard 	of 	review 	and 	the 	highly
deferential clearly erroneous standard of review.” See id. ¶ 9. In
our supreme court’s “more recent cases,” it has “applied a
binary method for determining the standard of review for mixed
questions,” depending on whether the particular mixed question
presented “is properly characterized as either law-like or fact-
like.” Id. ¶ 11. “Law-like mixed questions are reviewed de novo,
while fact-like mixed questions are reviewed deferentially.” Id.
“In determining whether a mixed question should be deemed
law-like 	or 	fact-like,” 	Utah 	appellate 	courts 	“evaluate 	the
marginal costs and benefits of conducting either a searching de
novo 	review 	or 	a 	deferential 	review 	of 	a 	lower 	tribunal’s
resolution of the mixed question.” Id. ¶ 12 (quotation simplified).
“This cost-benefit analysis is conducted through [a] three-factor”
test, first articulated in State v. Levin, 2006 UT 50, 144 P.3d 1096.
See Sawyer, 2015 UT 33, ¶ 12.
¶49 	In Menzies v. Galetka, 2006 UT 81, 150 P.3d 480, our
supreme court applied the Levin test to trial court decisions
regarding ineffective assistance of counsel. See id. ¶¶ 56–58.
However, the Menzies court did not engage in the inquiry used
in the court’s more recent cases, as recognized in Sawyer: an
examination of whether the particular mixed questions at issue
are more law-like or more fact-like. Compare id., with Sawyer, 2015
UT 33, ¶¶ 11–14. Indeed, in my view, the court’s analysis in
Menzies was rather cursory, containing no examination of the
individual components of the Strickland test, and concluding
simply that ineffective assistance claims “are regularly decided
based on the record” and that appellate courts therefore “do not

State v. Torres-Orellana
20190599-CA 	33 	2021 UT App 74
defer to the district court’s ultimate legal decision.” See Menzies,
2006 UT 81, ¶ 58.
¶50 	To 	be 	clear, 	I 	have 	no 	issue 	with 	application 	of 	a
nondeferential standard of review with regard to a trial court’s
decision on the first Strickland prong: deficient performance.
After all, deficient performance is an objective inquiry that asks,
first and foremost, whether the attorney acted reasonably. See
State v. Ray, 2020 UT 12, ¶ 33, 469 P.3d 871 (“[T]he ultimate
question 	is 	not 	whether 	counsel’s 	course 	of 	conduct 	was
strategic, but whether it fell below an objective standard of
reasonableness.”). An appellate court is just as well-positioned
as a trial court to determine whether “a common set of recurring
. . . practices qualifies as . . . ‘reasonable.’” See In re adoption of
Baby B., 2012 UT 35, ¶ 44, 308 P.3d 382. Accordingly, “a mixed
finding of reasonableness is typically subject to a non-deferential
standard of review,” because it is more law-like than fact-like
and lends itself “to consistent resolution by uniform precedent.”
See id.
¶51 	But in my view the calculus changes for the second
Strickland prong: prejudice. Like the majority, see supra note 10, I
find it “perplexing” that we are instructed not to defer to trial
court 	determinations 	regarding 	prejudice 	in 	this 	specific
context—at least where the same judge who presided over the
trial made the prejudice determination—and I wonder whether
our law ought to develop a standard of review in ineffective
assistance of counsel cases that requires some level of deference
to such determinations—that is, to a trial court’s determination
that there is (or is not) a reasonable probability that the outcome
of the trial would have been different had counsel not performed
deficiently, 	see 	Strickland, 	466 	U.S. 	at 	694. 	To 	my 	eye, 	the
prejudice 	inquiry 	seems 	a 	lot 	more 	fact-like 	than 	law-like;
indeed, the prejudice inquiry is often extremely fact-bound and
may not lend itself well to “consistent resolution by a uniform
body of appellate precedent.” See In re adoption of Baby B., 2012

State v. Torres-Orellana
20190599-CA 	34 	2021 UT App 74
UT 35, ¶ 42 (quotation simplified); cf. Salve Regina College v.
Russell, 499 U.S. 225, 233 (1991) (explaining that “deferential
review of mixed questions of law and fact is warranted when it
appears that the district court is better positioned than the
appellate court to decide the issue in question or that probing
appellate scrutiny will not contribute to the clarity of legal
doctrine” (quotation simplified)). And in cases like this one,
where the judge making the prejudice determination presided
over the trial, there is good reason to defer to a trial court’s
judgment on the topic of prejudice in particular: trial judges “are
in 	an 	advantaged 	position 	to 	that 	of 	appellate 	courts 	to
determine the impact of events occurring in the courtroom on
the total proceedings.” See De La Rosa, 2019 UT App 110, ¶ 5
(quotation simplified). And we are not the only ones who have
made that rather intuitive observation. See, e.g., Francis v. State,
529 So. 2d 670, 673 n.9 (Fla. 1989) (observing that the judge who
heard the post-trial ineffective assistance claim also presided
over the trial, and posing the rhetorical question, “Who, better
than 	he, 	could 	determine 	whether 	failure 	to 	introduce 	this
evidence prejudiced [the defendant] sufficiently to meet the
Strickland v. Washington test?”).
¶52 	In 	other 	similar 	contexts, 	Utah 	appellate 	courts 	are
instructed to give great deference to a trial court’s determination
as to whether an impropriety that occurred during trial was
prejudicial. In the context of rule 24(a) motions for new trial, we
recently recognized that the “substantial adverse effect” inquiry
is one that “falls entirely within the discretion of the trial court
due to its advantaged position to judge the impact of legal errors
on the total proceedings.” See De La Rosa, 2019 UT App 110, ¶ 9
(quotation 	simplified).17 And 	in 	a 	related 	context regarding
17. Indeed, the authority of trial courts to grant a new trial when
they perceive that injustice has occurred in a trial over which
they presided—as set out in today’s rule 24 of the Utah Rules of
(continued…)

State v. Torres-Orellana
20190599-CA 	35 	2021 UT App 74
motions for mistrial—which are governed by a similar standard,
under which courts are instructed to grant motions for mistrial
only if “a fair trial cannot be had and . . . a mistrial is necessary
to avoid injustice,” see State v. Whytock, 2020 UT App 107, ¶ 16,
469 P.3d 1150 (quotation simplified)—trial courts are afforded
great discretion in determining whether a trial issue caused a
problem big enough to warrant retrying the case. See State v.
Maestas, 2012 UT 46, ¶ 325, 299 P.3d 892 (stating that “trial courts
have discretion in granting or denying a motion for a mistrial . . .
because of the[ir] advantaged position . . . to determine the
impact 	of 	events 	occurring 	in 	the 	courtroom 	on 	the 	total
proceedings” 	(quotation 	simplified)). 	Similarly, 	our 	supreme
court has determined that a trial court is entitled to at least some
deference in ruling on whether a defendant’s Sixth Amendment
right to a fair trial was violated. See State v. Daniels, 2002 UT 2,
(…continued)
Criminal 	Procedure—dates 	back 	centuries, 	to 	the 	English
common law. See Albert D. Brault & John A. Lynch, Jr., The
Motion for New Trial and Its Constitutional Tension, 28 U. Balt. L.
Rev. 1, 3 (1998) (noting that, under English common law, a trial
judge’s authority to grant a new trial was considered “the
principal method of correcting errors at trial”); see also Capital
Traction Co. v. Hof, 174 U.S. 1, 13–14 (1899) (stating that “trial by
jury . . . is not merely a trial by a jury of twelve” but is conducted
“in the presence and under the superintendence of a judge
empowered . . . to set aside their verdict, if, in [the judge’s]
opinion, 	it 	is 	against 	the 	law 	or 	the 	evidence” 	(quotation
simplified)). 	And 	in 	those 	early 	days, 	a 	trial 	court’s
determination to grant a new trial was considered final and
unreviewable. See, e.g., Newcomb v. Wood, 97 U.S. 581, 583–84
(1878) (“It has long been the established law in the courts of the
United States that to grant or refuse a new trial rests in the sound
discretion of the court to which the motion is addressed, and
that the result cannot be made the subject of review upon a writ
of error.”).

State v. Torres-Orellana
20190599-CA 	36 	2021 UT App 74
¶ 19, 40 P.3d 611 (stating that, “[d]ue to the fact-dependent
nature of” the question regarding the fairness of the trial, “we
afford the trial court a measure of deference in its application of
the law to the facts of this case”). And even evidentiary decisions
made pursuant to rule 403 of the Utah Rules of Evidence—in
which trial courts are asked to weigh the risks of unfair trial
prejudice against a piece of evidence’s probative value—are
reviewed for abuse of discretion. See Arnold v. Grigsby, 2018 UT
14, ¶ 25 n.5, 417 P.3d 606 (“‘In reviewing a trial court’s ruling on
the 	admissibility 	of 	evidence 	under 	rule 	403, 	we 	will 	not
overturn the court’s determination unless it was an abuse of
discretion. To state the matter more precisely, we review the trial
court’s 403 ruling admitting or denying admission to evidence
by deciding whether . . . the trial court’s decision . . . was beyond
the limits of reasonability.’” (quoting State v. Hamilton, 827 P.2d
232, 239–40 (Utah 1992)).
¶53 	In 	ineffective 	assistance 	of 	counsel 	cases, 	other
jurisdictions have developed a standard of review that gives
deference to a trial court’s prejudice determination, see, e.g., State
v. Waitkus, 778 P.2d 1283, 1285 (Ariz. Ct. App. 1989) (“We accord
great deference to the trial court’s finding of lack of prejudice in
ineffective assistance of counsel cases.”), especially where the
ineffective assistance claim is adjudicated by the same judge
who presided over the trial, see, e.g., Rossetti v. United States, 773
F.3d 322, 327 & n.3 (1st Cir. 2014) (noting that “[t]he district
judge who heard Rossetti’s [ineffective assistance] petition also
presided over his trial and so was in a good position to assess
Rossetti’s claims,” and therefore reviewing the district court’s
prejudice 	determination 	“largely 	for 	clear 	error”); 	Ex 	parte
Gissendanner, 288 So. 3d 1011, 1028–29 (Ala. 2019) (concluding
that the intermediate appellate court erred “in failing to give [the
trial judge’s] findings of prejudicial ineffective assistance of
counsel considerable weight, since he presided over both [the]
original 	trial 	and 	the 	[ineffective 	assistance] 	proceedings”
(quotation simplified)); Francis, 529 So. 2d at 673 n.9 (quoted

State v. Torres-Orellana
20190599-CA 	37 	2021 UT App 74
above).18 And in my view, these other jurisdictions have it right,
at least where the judge making the prejudice determination also
presided 	over 	the 	trial: 	in 	that 	circumstance, 	a 	court’s
determination regarding prejudice is worthy of a certain level of
deference. Cf. Willardsen, 2011 UT 48, ¶¶ 28–29 (acknowledging
that a decision regarding a motion for new trial made by the
judge who presided over the trial is entitled to more deference
than a similar decision made by a “successor judge” who did not
preside over the trial). I simply disagree—at least as to the
prejudice prong—with our supreme court’s statement in Menzies
that a “trial court’s direct observations do not generally play a
role 	in 	determining 	whether 	a 	defendant 	received 	effective
assistance of counsel.” See 2006 UT 81, ¶ 58.
¶54 	In this case, as we review this matter based on the cold
record, it appears to us as though the alleged mistakes made by
Trial Counsel were not significant enough to have changed the
outcome of the trial. As the lead opinion ably points out, the jury
was already aware of the general tenor of the text messages, and
the record presented to us gives us little reason to be confident
that information regarding additional friendly texts from Tiffany
18. 	I 	acknowledge 	that 	several 	other 	jurisdictions 	have
developed standards of review in which no deference is given to
lower court determinations of prejudice in ineffective assistance
cases. See, e.g., Taylor v. Commissioner of Corr., 153 A.3d 1264, 1270
(Conn. 2017) (“The application of historical facts to questions of
law that is necessary to determine whether the petitioner has
demonstrated prejudice under Strickland v. Washington, . . .
however, is a mixed question of law and fact subject to our
plenary review.”). However, in many of these jurisdictions,
ineffective assistance claims are often raised in post-conviction
proceedings before a different judge than the one who heard the
trial, and the reasons for deference wane considerably when the
judge who makes the prejudice determination is not the same
judge who presided over the trial. See, e.g., id. at 1268–69.

State v. Torres-Orellana
20190599-CA 	38 	2021 UT App 74
to 	Torres 	would 	have 	changed 	the 	outcome 	of 	the 	trial,
especially given Tiffany’s testimony, Nurse’s testimony, and
(most significantly, in my view) Torres’s texts acknowledging—
or at least not contesting—that he forced Tiffany to have sex.
¶55 	But even in the face of this evidence, the trial court was
unquestionably troubled by the way in which the trial unfolded,
and took several steps in an attempt to rectify what it saw as a
series of problems in Torres’s defense. The trial court, without
being asked, raised questions about potential problems with the
jury instructions and appointed Post-trial Counsel to look into
the matter. Later, again without being asked, the court raised
concerns about the effectiveness of Trial Counsel’s performance.
Then, after Post-trial Counsel filed a motion seeking a new trial,
the court not only granted that motion but identified, in its
written decision, several additional issues with Trial Counsel’s
performance that Post-trial Counsel had not yet raised. These are
significant (and rather unusual) steps for a court to take, and I
am 	left 	wondering 	whether 	there 	might 	be 	something 	not
contained 	in 	the 	appellate 	record—for 	instance, 	matters 	of
perception that a judge presiding over the trial might have better
understood than we are able to—that motivated the court’s
actions.
¶56 	In the big picture, I think we want to encourage—rather
than discourage—trial judges to speak up when they perceive a
problem with the manner in which a trial has unfolded. I
commend the trial judge in this case for speaking up when she
saw 	something 	she 	perceived 	as 	concerning. 	I 	hope 	our
conclusion in this case does not deter trial judges from doing so
in the future. And in an ideal world we would afford such
decisions 	some 	level 	of 	deference, 	at 	least 	as 	concerns 	a
determination that the identified problems would have made a
difference to the outcome of the trial.