State v. Whitbeck

2018 UT App 88
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
BRANDON TYLER WHITBECK,
Appellant.
Opinion
No. 20150973-CA
Filed May 17, 2018
Second District Court, Ogden Department
The Honorable W. Brent West
No. 151900201
Samuel P. Newton, Cherise M. Bacalski, and Emily
Adams, Attorneys for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which J UDGES
M ICHELE M. C HRISTIANSEN and DIANA H AGEN concurred.
POHLMAN, Judge:
¶1 	Brandon Tyler Whitbeck appeals his convictions of one
count of failure to stop or respond at the command of a police
officer, a third degree felony, see Utah Code Ann. § 41-6a-210
(LexisNexis 2014), and one count of theft by receiving stolen
property, a second degree felony, see id. § 76-6-408 (2017). On
appeal, 	Whitbeck 	argues 	that 	the 	trial 	court 	exceeded 	its
discretion in admitting prior bad acts evidence under rule 404(b)
of 	the 	Utah 	Rules 	of 	Evidence 	and 	that 	his 	trial 	counsel
performed ineffectively by failing to object to the introduction of
prejudicial 	photographs, 	which 	depicted 	him 	posing 	while
holding a gun. We affirm.

State v. Whitbeck
20150973-CA 	2 	2018 UT App 88
BACKGROUND
¶2 	The 	State 	charged 	Whitbeck 	with 	failure 	to 	stop 	or
respond 	at 	the 	command 	of 	a 	police 	officer 	and 	theft 	by
receiving stolen property, a 2012 GMC Acadia, based on a series
of events that occurred in North Ogden in January 2015. At that
time, a “high rate of vehicle [burglaries] and vehicle thefts” had
been occurring in the Ogden area, and officers from North
Ogden and Weber County were working together to identify
potential suspects.
¶3 	During 	the 	night 	of 	January 	17, 	and 	into 	the 	early
morning of January 18, several vehicle burglaries and thefts
occurred 	in 	one 	particular 	North 	Ogden 	neighborhood. 	As
pertinent here, one theft victim reported that his garage had
been “ransacked” and that among the items stolen was his wife’s
vehicle, a charcoal gray 2012 GMC Acadia.
¶4 	Two other victims reported vehicle burglaries in the same
neighborhood, on the same night. The first victim, whose vehicle
was parked approximately six or seven blocks from where the
Acadia had been stolen, reported that his vehicle had been
broken into and that, although it did not appear that anything
had been taken, there was a phone left in the vehicle that was
not his. Through a combination of fingerprints lifted from the
phone and evidence obtained through a search of the phone, the
officers identified the phone as Whitbeck’s.
¶5 	The second victim, whose vehicle was “approximately
two doors away” from where the Acadia had been stolen,
reported that his vehicle had been broken into and that his
identification card, several watches, and a check written out to
him had been stolen from it. On January 21, a wallet containing,
among other things, the second victim’s identification card and
the check, as well as Whitbeck’s driver license, was turned in to
the Harrisville City Police Department. The officer investigating
the wallet and its contents determined that the wallet belonged
to Whitbeck, and he notified one of the North Ogden officers

State v. Whitbeck
20150973-CA 	3 	2018 UT App 88
investigating the vehicle burglaries and forwarded to the officer
photographs of the wallet’s contents.
¶6 	After the January 18 events, police identified Whitbeck
and a known associate of Whitbeck’s, Witness, as the primary
suspects of the string of burglaries and thefts. Various officers
met to strategize, and each officer was provided photographs—
both booking photographs and photographs obtained through
social media—of Whitbeck and Witness. The officers were also
provided with Witness’s address as well as descriptions of the
stolen vehicles from the area, including the 2012 GMC Acadia.
¶7 	Over 	the 	next 	three 	days, 	two 	investigating 	officers
reported observing Whitbeck driving what appeared to be the
stolen Acadia. On January 20, one of the officers, Officer Haney,
reported that he had observed two vehicles parked in Witness’s
driveway. 	One 	of 	them, 	a 	gray 	Chevrolet 	Aveo, 	had 	been
reported stolen. The other vehicle was 	a “dark gray GMC
Acadia,” and Officer Haney observed a person he later identified
as Whitbeck “standing inside the . . . driver’s door” of that
vehicle. The Acadia did not have a license plate. Officer Haney
observed both the Aveo and the Acadia back out of the driveway
and drive away from Witness’s house.
¶8 	The next day, another officer, Officer Huckaby, reported
observing Whitbeck driving what he identified as a gray 2012
GMC Acadia in North Ogden. During trial, Officer Huckaby
testified that as he was checking out some “hot spots” looking
for stolen cars, he observed a gray Acadia pull up to a stop sign.
Because Officer Huckaby knew that a gray 2012 Acadia had been
reported stolen, he “slowed down,” and as the vehicle turned, he
observed the driver from a distance of approximately twenty
feet. He immediately recognized the driver as Whitbeck from his
photographs, which Officer Huckaby had with him in his vehicle
at the time. He also observed that the Acadia had no license
plate. Officer Huckaby immediately executed a U-turn to “keep
an eye on the car,” and, because he drove an “unmarked car,” he
radioed 	for 	assistance. 	Another 	patrol 	vehicle 	responded,

State v. Whitbeck
20150973-CA 	4 	2018 UT App 88
turning on its siren and lights while getting “directly behind”
the 	Acadia. 	Rather 	than 	slowing 	and 	stopping, 	however,
Whitbeck 	“immediately 	accelerated,” 	ran 	a 	stop 	sign, 	and
proceeded northbound at an “extremely high rate of speed.”
Although the patrol car initially gave chase, it broke off pursuit
for safety reasons.
¶9 	A few days later, police recovered the Acadia when a man
in Clearfield reported that he suspected that a 2012 GMC Acadia
he had received from a friend of Whitbeck’s was stolen.
¶10 	Before trial, the State filed a notice of intent to introduce
rule 404(b) evidence linking Whitbeck to other burglaries that
had 	occurred 	in 	the 	same 	North 	Ogden 	neighborhood 	on
January 18,1 which Whitbeck opposed. Out of the jury’s presence
on the day of trial, the court heard argument from both sides on
the matter.
¶11 	The State argued that it sought to introduce the phone
and 	the 	wallet 	as 	evidence 	to 	“corroborate 	the 	fact 	that
[Whitbeck] was in the area at the time that the [Acadia] theft
actually happened,” which the State claimed would “help prove
the elements that [Whitbeck] knew or should have known that
the [Acadia] was stolen” at the time he possessed it. The State
also asserted that Witness was prepared to testify, among other
things, that on the night in question, it was his and Whitbeck’s
“plan” to commit these vehicle burglaries and thefts and that
they engaged in this conduct on the night in question at the
“general location” from which the Acadia had been stolen.
1. Rule 404(b) of the Utah Rules of Evidence provides that, “[o]n
request 	by 	a 	defendant 	in 	a 	criminal 	case, 	the 	prosecutor
must . . . provide 	reasonable 	notice 	of 	the 	general 	nature 	of
[evidence 	of 	the 	defendant’s 	prior 	wrongful 	acts] 	that 	the
prosecutor intends to offer at trial.”

State v. Whitbeck
20150973-CA 	5 	2018 UT App 88
¶12 	Whitbeck responded that the phone and wallet evidence
were “bits and pieces” the State was trying to present as “one
cohesive 	piece 	of 	evidence.” 	He 	argued 	that 	the 	pieces 	of
evidence did not demonstrate that he was “in possession of
anything,” even if the items were “all related to a type of crime
or a genre of crime.” He also asserted that the introduction of the
items would be problematic, given that those items were not
found on him at the same location and, for example, it was not
clear “how the [stolen] identification got into his wallet.”
¶13 	The court ruled in favor of the State, concluding that the
phone and wallet evidence was being offered for a “proper non-
character purpose,” because it “goes to identify Mr. Whitbeck”
as “a person who was involved in” vehicle burglaries and
whether “he is the person that [the police] were in fact looking
for for this series of crimes that allegedly occurred” in that North
Ogden neighborhood. The court recognized that the evidence
was prejudicial but determined it was not unfairly so, and the
court observed that there was a “need for the evidence” and that
the State was “entitled to bring in all the evidence that [it] had
that would lead one to believe that the identity of the person that
was involved in this crime and inferentially involved in others
was Mr. Whitbeck.” The court accordingly limited its ruling to
permitting the introduction of the phone and the wallet to
“tie . . . up with [Witness] to the extent that Mr. Whitbeck was
involved 	in 	this 	crime 	or 	other 	crimes,” 	and 	the 	court
emphasized that the State was not to use the evidence to say that
Whitbeck committed “all these other crimes,” but rather that the
State was limited to using the evidence to identify Whitbeck as a
person “who may have been involved in this.”
¶14 	At trial, Witness testified that he and Whitbeck had been
in the North Ogden neighborhood from which the Acadia had
been stolen on the night in question and that they were there to
generally steal and burglarize vehicles. Witness also testified that
the next day Whitbeck had said that he had lost his phone. In
addition, Witness testified that on at least two occasions he had
observed Whitbeck driving a GMC Acadia—later in the morning

State v. Whitbeck
20150973-CA 	6 	2018 UT App 88
of January 18 when he and Whitbeck reunited, and on the day
Officer 	Haney 	observed 	the 	Acadia 	in 	Witness’s 	driveway
because Witness was seated in the Acadia as Whitbeck drove it
away.
¶15 	The State also introduced the wallet and phone evidence
to corroborate Witness’s testimony about the events of the night
in question, arguing that Whitbeck knew the Acadia was stolen
because, in part, the evidence demonstrated he was in the North
Ogden neighborhood with Witness pursuant to the plan to steal
and burglarize vehicles. As to the phone in particular, the State
presented evidence recovered from the phone to demonstrate
that 	it 	belonged 	to 	Whitbeck, 	including 	fingerprints, 	text
messages, 	application 	use, 	and 	two 	photographs 	depicting
Whitbeck 	posing 	with 	a 	gun. 	The 	trial 	court 	admitted 	the
photographs into evidence without objection.
¶16 	At closing, the State emphasized to the jury that although
other vehicle burglaries and thefts had been discussed, the State
had not charged Whitbeck with those other vehicle burglaries,
and the “only things” the jury was to decide were whether
Whitbeck eluded the police officer and “was in possession of a
stolen 	vehicle, 	the 	Acadia.” 	“Everything 	else,” 	the 	State
explained, “was presented [as] background and to identify the
person . . . that had the Acadia.”
¶17 	The 	jury 	returned 	guilty 	verdicts 	on 	both 	counts.
Whitbeck appeals.
ISSUES AND STANDARDS OF REVIEW
¶18 	Whitbeck raises two claims of error. First, he argues that
the trial court “erroneously allowed the State to present prior
bad 	act 	evidence 	that 	[he] 	was 	allegedly 	involved 	in 	two
different 	vehicle 	burglaries.” 	We 	review 	“a 	trial 	court’s
admission of prior bad acts evidence” for an abuse of discretion.
State 	v. 	Reece, 	2015 	UT 	45, 	¶ 	17, 	349 	P.3d 	712 	(quotation
simplified).

State v. Whitbeck
20150973-CA 	7 	2018 UT App 88
¶19 	Second, Whitbeck argues that his trial counsel performed
ineffectively by failing “to object to the introduction of irrelevant
and highly prejudicial photographs” recovered from his phone
that 	depicted 	him 	holding 	a 	gun. 	“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.” State v. Parkinson, 2018
UT App 62, ¶ 8 (quotation simplified).
ANALYSIS
I. Prior Bad Acts Evidence
¶20 	Whitbeck 	argues 	that 	the 	trial 	court 	erred 	when 	it
admitted the wallet and phone evidence. He contends that the
wallet and phone evidence allowed what was otherwise “a very
weak case . . . to be bolstered with a highly improper propensity
inference: that because [he] must have been committing multiple
vehicle burglaries that evening, he must have committed” the
crime of possessing the stolen Acadia.
¶21 	Rule 404(b) of the Utah Rules of Evidence regulates the
admissibility 	of 	evidence 	of 	a 	defendant’s 	prior 	acts 	of
misconduct. “The rule recognizes the dangers of exposing a jury
to evidence of a defendant’s acts of prior misconduct,” especially
“the risk that the jury will 	infer that the defendant has a
reprehensible character, that he probably acted in conformity
with 	it, 	and 	that 	he 	should 	be 	punished 	for 	his 	immoral
character in any event.” State v. Thornton, 2017 UT 9, ¶ 35, 391
P.3d 1016 (quotation simplified). To preclude that inference, the
rule provides that “evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in conformity with
the character.” Utah R. Evid. 404(b)(1).
¶22 	“On the other hand, the rule also recognizes that acts of
prior misconduct may also sustain an alternative—and entirely

State v. Whitbeck
20150973-CA 	8 	2018 UT App 88
permissible—inference.” Thornton, 2017 UT 9, ¶ 36. To that end,
the 	rule 	provides 	that 	past 	misconduct 	evidence 	“may 	be
admissible 	for 	another 	purpose, 	such 	as 	proving 	motive,
opportunity, 	intent, 	preparation, 	plan, 	knowledge, 	identity,
absence of mistake, or lack of accident.” Utah R. Evid. 404(b)(2).
Past misconduct evidence presented for such a noncharacter
purpose will be admissible if it is also relevant under rule 402
and the probative value of the evidence is not substantially
outweighed “by the danger of unfair prejudice” under rule 403.
See State v. Reece, 2015 UT 45, ¶ 57, 349 P.3d 712 (quotation
simplified); see also Thornton, 2017 UT 9, ¶ 36 (explaining that if
“past misconduct evidence is offered for any other purpose—
other than to suggest action in conformity with the bad character
suggested by his prior bad acts—such evidence is admissible, so
long as it satisfies rules 402 and 403” of the Utah Rules of
Evidence (quotation simplified)). Thus, the admissibility of prior
bad acts evidence turns on a three-part test: the prior bad act
evidence 	“(1) 	must 	be 	offered 	for 	a 	genuine, 	noncharacter
purpose, (2) must be relevant to that noncharacter purpose, and
(3) the probative value of the evidence must not be substantially
outweighed by the danger of unfair prejudice.” Reece, 2015 UT
45, ¶ 57 (quotation simplified).
¶23 	Nevertheless, the ultimate question for an appellate court
reviewing a trial court’s rule 404(b) determination is “whether
the district judge made an error in admitting or excluding the
evidence in question,” not whether we would have decided
differently in the first instance. See Thornton, 2017 UT 9, ¶¶ 50–
53, 56 (quotation simplified). Our supreme court has reiterated
“the deferential standard of review that applies to review of this
kind of question,” given the trial judge’s “better position . . . to
assess the avowed basis for evidence of prior misconduct” and
to “judge its likely effect in prejudicing or confusing the jury.” Id.
¶ 56. Consequently, the “question for us is not whether we
would have admitted this evidence. It is whether the district
judge abused his broad discretion in doing so.” Id.

State v. Whitbeck
20150973-CA 	9 	2018 UT App 88
¶24 	We address each of the three steps below and ultimately
conclude that the trial court did not exceed its discretion in
admitting the phone and wallet evidence.
A. 	Proper Noncharacter Purpose
¶25 	First, it was well within the trial court’s discretion to
conclude that the phone and wallet evidence was submitted for a
proper 	noncharacter 	purpose. 	Our 	supreme 	court 	recently
recognized in State v. Lopez, 2018 UT 5, that rule 404(b) evidence
may be admissible for the noncharacter purpose of identity if it
supports “an intermediate inference that tie[s] the defendant to
the charged crime.” See id. ¶¶ 44–47. In doing so, the Lopez court
cited with approval State v. Reece, 2015 UT 45, 349 P.3d 712; State
v. Shaffer, 725 P.2d 1301 (Utah 1986); and State v. Clark, 2014 UT
App 56, 322 P.3d 761. See Lopez, 2018 UT 5, ¶¶ 44–47. In each of
those cases, the district court’s decisions to admit evidence
under rule 404(b) for the noncharacter purpose of identity were
affirmed where the evidence was used for the purpose of linking
the defendant to the charged crime. See id. For example, the
supreme court noted that in Reece the prior bad acts evidence
was admissible because it showed that the defendant “had
access to the type of gun investigators determined was likely the
murder weapon.” Id. ¶ 44 (quotation simplified). Similarly, the
court observed that in Shaffer the prior bad acts evidence that the
defendant had stolen a wallet was admissible where the State
“used 	the 	evidence 	to 	show access to 	the 	murder 	weapon
because the defendant had used the identification in the stolen
wallet to purchase the gun [that had killed the victim] ten days
prior to the murder.” Id. ¶ 45.
¶26 	The phone and wallet evidence in the present case was
likewise admissible under rule 404(b) because it supported an
“intermediate 	inference 	of 	identity” 	tying 	Whitbeck 	to 	the
charged crime. See id. ¶ 47. As the trial court noted, the officers
were investigating a “total criminal situation” involving multiple
vehicle burglaries and thefts in this North Ogden neighborhood.
As part of this “total criminal situation,” the phone was reported

State v. Whitbeck
20150973-CA 	10 	2018 UT App 88
as being left inside of a vehicle parked six or seven blocks from
where the Acadia had been stolen, and the items recovered from
Whitbeck’s wallet 	had 	been 	reported 	stolen 	from 	a vehicle
parked two doors away from the Acadia. The location of the
phone 	and 	the 	wallet’s 	contents 	permit, 	as 	the 	trial 	court
observed, a “legitimate inference” that Whitbeck was in the
North Ogden neighborhood during the time frame in which the
burglaries occurred and that he had been involved in those
burglaries, as testified to by Witness. See Reece, 2015 UT 45,
¶¶ 58–63 (concluding that, where the “central issue at trial was
the 	identity 	of 	the 	killer,” 	“evidence 	linking 	[the
defendant] . . . to 	the 	type 	of 	gun 	that 	investigators 	had
identified as the likely murder weapon” was admissible under
rule 	404(b) 	for 	the 	“genuine 	noncharacter 	purpose 	of
establishing [the defendant] as the murderer”); Clark, 2014 UT
App 56, ¶¶ 21–22 (concluding that prior bad acts evidence that
the defendant had been involved in a previous shooting was
admissible for a proper noncharacter purpose of identifying the
defendant “as the person who used the same firearm to commit
two 	shootings” 	where 	the 	“identity 	of 	the 	perpetrator 	was
clearly at issue” and where the details of a previous shooting
were relevant to show both that the weapon involved in the
charged shooting belonged to the defendant and that he was
present at the crime scene); Salt Lake City v. Alires, 2000 UT App
244, ¶ 13, 9 P.3d 769 (concluding that admission of the facts
surrounding the defendant’s visit to the victim an hour before
making the harassing phone call at issue was proper for an
identification purpose, where the facts suggested “a clear factual
link between the two incidents” by demonstrating “a course of
threatening behavior directed at [the victim]”). Accordingly, the
evidence of the phone and the wallet was admitted for a proper
noncharacter 	purpose—identifying 	Whitbeck 	as 	a 	person
involved in the Acadia’s theft. See Lopez, 2018 UT 5, ¶¶ 44–47.
B. 	Relevance
¶27 	Next, it was also within the court’s discretion to conclude
that the phone and wallet evidence was relevant to proving

State v. Whitbeck
20150973-CA 	11 	2018 UT App 88
Whitbeck’s identity as a person involved in the Acadia’s theft.
“Relevant evidence is admissible” unless the Federal or Utah
Constitution, a statute, or a rule provides otherwise, Utah R.
Evid. 402, and “relevance is a low bar,” State v. Thornton, 2017
UT 9, ¶ 61, 391 P.3d 1016; see also Reece, 2015 UT 45, ¶ 64
(explaining 	that 	“any 	evidence 	that 	has 	even 	the 	slightest
probative 	value 	is 	relevant 	under 	the 	rules 	of 	evidence”
(quotation simplified)). “Evidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be
without the evidence; and (b) the fact is of consequence in
determining the action.” Utah R. Evid. 401 (emphasis added).
¶28 	Here, Whitbeck’s identity as a person involved in the
Acadia’s theft was of central importance to this case—the State
was required to prove both that Whitbeck was the person who
had received the stolen Acadia and that Whitbeck knew or
believed that the Acadia had been stolen at the time he received
it. 	See 	Utah 	Code 	Ann. 	§ 	76-6-408(1) 	(LexisNexis 	2017)
(providing that “a person commits theft if he receives, retains, or
disposes of the property of another knowing that it has been
stolen, or believing that it probably has been stolen”). The phone
and wallet evidence tended to identify Whitbeck as a person
involved in the theft of the Acadia because it physically linked
him to the North Ogden neighborhood from which the Acadia
had been stolen on the night in question. That evidence also
inferentially suggested that Whitbeck had been involved in other
vehicular burglaries that had been reported in the same area,
which increased the likelihood of Whitbeck’s involvement in,
and knowledge of, the Acadia’s theft as a part of the larger crime
spree. See Clark, 2014 UT App 56, ¶ 22 (concluding that the
details of the defendant’s involvement in a prior shooting were
relevant to identify the defendant as the perpetrator of the
shooting at issue where the defendant denied being present at
the shooting at issue and the details of the prior shooting tended
to identify the defendant “as the person who [had] used the
same firearm to commit two shootings”); Alires, 2000 UT App
244, ¶¶ 14–15 (concluding that the trial court did not abuse its
discretion in concluding the prior bad acts evidence was relevant

State v. Whitbeck
20150973-CA 	12 	2018 UT App 88
where “the identity of the caller [was] a material fact and a
necessary element in the State’s prosecution” and some of the
content from the phone call tended “to prove the identity of the
caller”).
¶29 	In addition, the phone and wallet evidence had some
tendency 	to 	corroborate 	Witness’s 	testimony 	about 	his 	and
Whitbeck’s general plan to steal and burglarize vehicles in the
North Ogden neighborhood on the night in question. As defense
counsel 	highlighted 	in 	cross-examination, 	there 	were 	some
credibility 	problems 	with 	Witness’s 	testimony—Witness
admitted that, at the time of the events, he had been heavily
involved in drugs and had trouble recalling some of the details.
Whatever the failings in Witness’s testimony, the phone and
wallet provided physical evidence that fairly suggested there
was some truth to his narrative. And the overall use of the phone
and wallet evidence therefore tended to counterpoint Whitbeck’s
attempts at trial to draw Witness’s credibility into question. See
State v. Holbert, 2002 UT App 426, ¶ 37, 61 P.3d 291 (indicating
that prior bad acts evidence was relevant where it tended to
make the complaining witness’s “version of the events . . . more
probable than without the evidence”); State v. Van Oostendorp,
2017 UT App 85, ¶¶ 36–37, 397 P.3d 877 (concluding that prior
bad 	acts 	evidence 	at 	issue 	was 	“relevant 	to 	rebut 	[the
defendant’s] defense”).2
2. Whitbeck also argues that the State did not lay a sufficient
foundation for the admission of the other vehicle burglaries. He
argues that the State “did not present evidence as to how the
evidence arrived in the various vehicles” and it “never showed
[his] actual involvement or culpability in these bad acts” or
“create[d] 	an 	actual 	connection 	between 	the 	other 	vehicle
burglaries and [his] supposed theft of the Acadia.” See Utah R.
Evid. 104(b) (providing that “when the relevance of evidence
depends on whether a fact exists, proof must be introduced
sufficient to support a finding that the fact does exist” and that
(continued…)

State v. Whitbeck
20150973-CA 	13 	2018 UT App 88
C. 	Risk of Unfair Prejudice
¶30 	Finally, 	the 	court 	did 	not 	exceed 	its 	discretion 	in
determining that, while use of the phone and wallet evidence
was somewhat prejudicial, it was not unfairly so. Rule 403 of the
Utah Rules of Evidence provides that “the court may exclude
relevant 	evidence 	if 	its 	probative 	value 	is 	substantially
outweighed 	by 	a 	danger 	of,” 	among 	other 	things, 	“unfair
prejudice.” In weighing the probative value and potentially
unfair prejudice of evidence under rule 403, trial courts are
instructed to “bind [their] analysis to the text of [that] rule.” State
v. Lowther, 2017 UT 34, ¶ 45, 398 P.3d 1032; see also State v. Cuttler,
2015 UT 95, ¶ 2, 367 P.3d 981 (stating that “the governing legal
standard for evaluating whether evidence satisfies rule 403 is the
plain language of the rule, nothing more and nothing less”). This
may 	include 	some 	appropriate 	consideration 	of 	what 	have
become known as the Shickles factors, but ultimately, courts
should consider “those factors that are appropriate given the
particular circumstances of the case.” Lowther, 2017 UT 34, ¶ 45;
Cuttler, 2015 UT 95, ¶¶ 18–19 (explaining that a court’s rule 403
analysis “should not [be] limit[ed]” to or moored “entirely and
exclusively” to the Shickles factors, and that, if used, the Shickles
factors should not be applied mechanically).
(…continued)
“the court may admit the proposed evidence on the condition
that the proof be introduced later”). But the State did not seek
admission of the evidence to argue that Whitbeck had, in fact,
committed the other burglaries. Instead, it sought to use that
evidence to identify Whitbeck as a person with some connection
to those crimes. Thus, the only conditions of fact at issue here
were the circumstances in which the phone and wallet were
recovered 	and 	how 	the 	identifications 	of 	those 	items 	as
belonging to Whitbeck proceeded. As a result, the phone and
wallet evidence does not run afoul of rule 104’s requirements.

State v. Whitbeck
20150973-CA 	14 	2018 UT App 88
¶31 	Here, the trial court determined that, while the phone and
wallet evidence was somewhat prejudicial, it was not unfairly
so. The trial court found that the phone and wallet evidence
“goes to the identity of Mr. Whitbeck,” and it accordingly
limited the use of the evidence to that end. Specifically, the court
stated that the phone and wallet evidence could be used only to
“tie . . . up with [Witness’s testimony] . . . that [Whitbeck] was
involved 	in 	this 	crime 	or 	other 	crimes” 	that 	police 	were
investigating, and it emphasized that the State would not be
permitted to use the evidence to argue that Whitbeck committed
the other vehicle burglaries and therefore must have committed
the charged crimes. In this regard, the court determined that
because police were investigating the Acadia’s theft as part of a
“total criminal situation” involving a “series of crimes,” the
phone and wallet evidence raised “a legitimate inference or
question as to why [Whitbeck’s] wallet [was] found where it was
found and why [Whitbeck’s] phone [was] found where it was
found.” The court also determined that the State was “entitled to
bring in all the evidence that [it] had that would lead one to
believe that the identity of the person that was involved in this
crime 	and 	inferentially 	involved 	in 	others was [Whitbeck]”
rather than someone else.
¶32 	In so ruling, the court did not exceed its discretion. It is
significant 	that 	the 	phone 	and 	wallet 	evidence 	was 	not
introduced to simply establish that Whitbeck had committed
certain specific prior bad acts with some bearing on the case,
such 	as 	the 	alleged 	burglaries associated 	with 	those 	items.
Rather, the evidence was introduced to permit the jurors to draw
a reasonable inference that Whitbeck had been a person involved
in the larger crime spree under investigation, which included the
Acadia’s theft. Given that there was no direct evidence that
Whitbeck had actually stolen the Acadia, the jury was required
to draw such an inference to convict Whitbeck of a crime that
depended on his knowledge or belief that the Acadia had been
stolen. Cf. Thornton, 2017 UT 9, ¶ 63 (indicating that the risk of
unfair prejudice may be mitigated if the evidence pertained to “a
matter of substantial relevance to the prosecution”); Alires, 2000

State v. Whitbeck
20150973-CA 	15 	2018 UT App 88
UT App 244, ¶ 17 (noting that the prior bad acts evidence was
not unfairly prejudicial in part because the defendant’s “identity
. . . is a necessary element of the charged offense” and “identity
was a 	crucial 	issue 	at 	trial,” 	rendering 	the 	evidence 	“very
important to the State’s case”). As a result, the challenged
evidence does not seem to be of a kind likely to unfairly
prejudice Whitbeck, given its role and purpose in the overall
case.
¶33 	In the balance, then, the court did not exceed its discretion
in concluding that the probative value of the phone and wallet
evidence was not substantially outweighed by the risk of unfair
prejudice. It was the only physical evidence that corroborated
Witness’s account and that tended to show Whitbeck knew or
believed the Acadia was stolen. Under these circumstances, it
was not improper for the trial court to admit the phone and
wallet evidence under Utah Rule of Evidence 404(b).
II. The Photographs
¶34 	Whitbeck 	also 	argues 	that 	trial 	counsel 	performed
ineffectively by failing to object to the introduction of “irrelevant
and highly prejudicial photographs.” During the trial, the State
presented two photographs it had obtained from Whitbeck’s
phone that showed him holding a gun. The State used these
photographs to demonstrate that the recovered phone was, in
fact, Whitbeck’s. Defense counsel did not object to the admission
of the photographs as exhibits. Whitbeck argues that counsel
performed deficiently by not objecting because failing to do so
could 	not 	have 	been 	a 	legitimate 	trial 	strategy 	where 	the
photographs only tangentially connected him to the crimes with
which he was charged. He suggests that, at the very least,
counsel should have requested that the guns in the photographs
be redacted. He also argues that had the photographs been
excluded there is a reasonable probability the outcome at trial
would have been more favorable to him.

State v. Whitbeck
20150973-CA 	16 	2018 UT App 88
¶35 	To prevail on his ineffective assistance of counsel claim,
Whitbeck bears the burden to demonstrate both that his trial
counsel 	performed 	deficiently 	by 	failing 	to 	object 	to 	the
photographs—i.e., “that counsel’s representation fell below an
objective standard of reasonableness,” and that, had trial counsel
objected, there is a “reasonable probability” that the outcome of
the trial would have been more favorable to him. Strickland v.
Washington, 466 U.S. 668, 687–88, 694 (1984). “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” Id. at 694.
¶36 	Here, we agree that trial counsel’s failure to object to the
introduction of the photographs is troubling. As Whitbeck points
out, the photographs could have raised some risk that the jury
might view him as a violent person and view his crimes, though
nonviolent, through that lens. See generally Utah R. Evid. 403
(providing that evidence may be excluded if the probative value
is 	“substantially 	outweighed” 	by 	“a 	danger 	of 	. 	. 	. 	unfair
prejudice, 	confusing 	the 	issues, 	misleading 	the 	jury, 	undue
delay, 	wasting 	time, 	or 	needlessly 	presenting 	cumulative
evidence”). Consequently, given the rather evident downside to
the introduction of the photographs, we cannot easily conceive
of “some plausible strategic explanation” for counsel’s failure to,
at the very least, request that the guns be redacted from them.
See 	State 	v. 	Carter, 	2015 	UT 	App 	109, 	¶ 	13, 	349 	P.3d 	764
(quotation simplified).
¶37 	However, we nonetheless conclude that Whitbeck has not
shown that the introduction of the photographs was prejudicial
to his overall case in that, without them, there was “a reasonable
probability” he would have enjoyed a more favorable outcome
at trial. See Strickland, 466 U.S. at 694. “Strickland’s requirement of
a ‘reasonable probability’ of a different outcome is a relatively
high hurdle to overcome.” State v. Garcia, 2017 UT 53, ¶ 44
(quoting Strickland, 466 U.S. at 694). Only those errors that
“actually had an adverse effect on the defense” require reversal.
See id. ¶¶ 36–37. Thus, in analyzing prejudice under Strickland,
we “consider the totality of the evidence” before the judge or

State v. Whitbeck
20150973-CA 	17 	2018 UT App 88
jury to determine whether the error “had a pervasive effect” on
the 	evidence, 	“altering 	the 	entire 	evidentiary 	picture,” 	or
whether the error had only an “isolated, trivial effect.” Strickland,
466 U.S. at 695–96. We also consider the strength of the evidence
supporting the jury’s verdict, as a “weakly supported” verdict
“is more likely to have been affected by errors than one with
overwhelming record support.” Id. at 696.
¶38 	Here, examining the record as a whole, we conclude that
the admission of the photographs does not undermine our
confidence in the jury’s verdict. The evidence of Whitbeck’s guilt
overwhelmed any effect counsel’s failure to object might have
produced, rendering the photographs’ overall impact on the case
as a whole slight. See Garcia, 2017 UT 53, ¶¶ 42, 45. For example,
the eluding the police charge was supported by the eyewitness
accounts of Officer Huckaby and the responding patrol officer.
Officer Huckaby testified that three days after the Acadia was
stolen he observed Whitbeck driving a vehicle that matched the
stolen Acadia’s description, which prompted him to call for
backup, and both Officer Huckaby and the responding patrol
officer thereafter observed Whitbeck flee at high speeds once the
patrol officer pulled behind Whitbeck and activated his lights
and siren.
¶39 	The theft by receiving the stolen Acadia charge was also
supported by eyewitness identifications of persons who had
observed Whitbeck in possession of the Acadia shortly after it
was stolen. Witness testified that later on the morning of January
18, after he and Whitbeck had been separated while carrying out
their plan to burglarize and steal vehicles in the North Ogden
neighborhood, Whitbeck met back up with him and was driving
a GMC Acadia. Officer Haney observed Whitbeck standing
inside the driver’s door of an Acadia parked on Witness’s
driveway two days after its theft, and Witness, who was with
Whitbeck at the time, testified that Whitbeck then drove the
vehicle away. Officer Huckaby, as discussed above, observed
Whitbeck driving (and, later, fleeing) in the Acadia three days
after the theft.

State v. Whitbeck
20150973-CA 	18 	2018 UT App 88
¶40 	The 	State 	also 	introduced 	substantial 	evidence 	that
Whitbeck would have known or believed that the Acadia had
been stolen. Witness testified that he and Whitbeck were in the
North Ogden neighborhood from which it was stolen on the
night 	in 	question 	to 	carry 	out 	their 	plan 	of 	thieving 	and
burglarizing vehicles and that they did, in fact, carry out that
plan. Witness also testified, as discussed, that although he and
Whitbeck became separated while carrying out their plan, he
reunited with Whitbeck later in the morning of January 18, and
at 	that 	time 	Whitbeck 	was 	driving 	an 	Acadia. 	The 	State
introduced the phone and wallet evidence, which corroborated
Witness’s testimony 	about 	the 	plan 	to 	steal 	and 	burglarize
vehicles. And both parties stipulated before trial that the Acadia
was recovered by police from someone who claimed he received
the Acadia from a person who Witness later testified was an
associate of Whitbeck’s, one who was “able to use” the stolen
vehicles that were “around” “when he wanted to.”
¶41 	Thus, given all of the evidence before the jury, we cannot
conclude 	that 	the 	introduction 	of 	the 	photographs—while
troubling—prejudicially affected Whitbeck’s case such that the
outcome would have been more favorable to him without them.
The evidence in the record that Whitbeck eluded the police and
received 	the 	stolen 	Acadia 	overwhelms 	any 	potentially
prejudicial 	effect 	counsel’s 	failure 	to 	object 	might 	have
produced. See Garcia, 2017 UT 53, ¶ 45. In other words, we are
unpersuaded there is a reasonable probability that the jury
would have acquitted him had counsel objected, or that the
verdicts must have resulted from the jury’s desire to improperly
sanction him for holding a gun. See Strickland v. Washington, 466
U.S. 668, 695 (1984).
CONCLUSION
¶42 	We conclude that Whitbeck has failed to demonstrate that
the trial court erred by admitting the phone and wallet evidence
under rule 404(b) of 	the Utah Rules of Evidence. We also

State v. Whitbeck
20150973-CA 	19 	2018 UT App 88
conclude 	that 	Whitbeck 	has 	failed 	to 	persuade 	us 	that 	he
received constitutionally ineffective assistance of counsel when
his 	trial 	counsel 	failed 	to 	object 	to 	the 	admission 	of 	the
photographs recovered from his phone. Accordingly, we affirm.