State v. Herrera

2025 UT App 1
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
M ARTIN R OBERT HERRERA,
Appellant.
Opinion
No. 20220068-CA
Filed January 3, 2025
Third District Court, Tooele Department
The Honorable Dianna Gibson
No. 181300794
Emily Adams, Freyja Johnson, and Rachel Phillips
Ainscough, Attorneys for Appellant
Sean D. Reyes and William M. Hains,
Attorneys for Appellee
JUDGE A MY J. O LIVER authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and R YAN M. HARRIS concurred.
OLIVER, Judge:
¶1 	The day after Martin Robert Herrera’s girlfriend, Nicole,
arrived at the emergency room with her friend, Tom, and stated
that she had “been getting beat by [her] husband,” a police officer
(Officer) took Herrera into custody and interrogated him.1 Officer
later arrested Herrera, and he was charged with one count of
aggravated burglary, one count of assault against Tom, and one
count each of aggravated assault and assault against Nicole. A
jury acquitted Herrera of aggravated burglary but convicted him
on the aggravated assault charge and both assault charges.
Herrera appeals these convictions, arguing that trial counsel
1. Nicole and Tom are pseudonyms.

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20220068-CA 	2 	2025 UT App 1
(Counsel) was ineffective for failing to object to (1) Officer’s
testimony regarding the custodial interrogation of Herrera during
the State’s case in chief when there was no electronic recording of
the interrogation, (2) witnesses testifying about the credibility of
other witnesses, and (3) the triage nurse’s (Nurse) testimony that
she wanted to “speak out” for Nicole. We reject Herrera’s
arguments and affirm his convictions.
BACKGROUND2
The Incident and Allegations
¶2 	On a Wednesday in December 2018, Nicole stopped by
Tom’s house. Tom noticed that “she had a contusion on her left
temple” when she arrived. Around five minutes later, Herrera
arrived at the house, entered “without permission,” and began
staring at Nicole. After a few minutes, Tom pushed Herrera “out
the door and . . . tried to close the door.” However, Herrera
reentered the house and punched Tom once in the head and
several times in the ribs. Herrera then exited the house and left
the area.
¶3 	After Herrera left, Tom and Nicole went to the emergency
room. Nicole’s chief complaint upon arrival was that she had
“been getting beat by [her] husband.”3 Nicole reiterated to Nurse
2. On appeal from a jury trial, “we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly,” 	and 	“we 	present 	conflicting 	evidence 	only 	as
necessary to understand issues raised on appeal.” State v. Speights,
2021 UT 56, n.1, 497 P.3d 340 (cleaned up).
3. Nicole sometimes referred to Herrera as her husband, even
though they weren’t married, and Herrera admitted that people
often viewed them as “husband and wife.”

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20220068-CA 	3 	2025 UT App 1
that “she had been beaten by her husband” that day and the day
before. Nicole also showed Nurse bruises on her right abdomen
and leg, a cut on her left ear, and a mark on her neck.4 Nicole
stated the mark on her neck was “where he choked” her.
¶4 	Nicole became less forthcoming with information about
her injuries when evaluated by the primary nurse and doctor. The
primary nurse did an initial abuse assessment and made no
findings 	of 	abuse, 	and 	Nicole 	refused 	to 	“talk 	about 	any
relationship abnormalities . . . and denie[d] any assault from her
boyfriend, or husband,” despite reporting such to Nurse at intake.
Law enforcement was contacted due to the potential abuse, but
when Officer tried to speak with Nicole at the hospital, she
refused to have any photos taken of her or to tell Officer anything
except that “she had fallen.”
¶5 	When she arrived at the hospital, Nicole’s blood alcohol
concentration was .522, over ten times the legal limit, and she was
diagnosed 	with 	“alcohol 	abuse 	with 	intoxication 	delirium.”
However, Nurse testified that Nicole scored perfectly on the
Glasgow Coma Scale5 and that Nurse only marked “alcohol abuse
4. Nicole’s medical report noted “bruises in various stages of
healing on different part[s] of her body” and swelling and
“evidence of trauma to the left ear with a minor 2-3mm laceration
that is quite superficial.”
5. “The Glascow Coma Scale is a tool healthcare providers use to
measure degrees in consciousness.” Glasgow Coma Scale (GCS),
Cleveland Clinic, https://my.clevelandclinic.org/health/diagnosti
cs/24848-glasgow-coma-scale-gcs 	[https://perma.cc/KW75-
FCRE]. The test evaluates eye, motor, and verbal responses. Id. To
receive a perfect score, patients must be able to “open [their] eyes
and keep them open on their own,” “follow instructions on how
and when to move,” and “correctly answer questions about who
[they] are,” where they are, and the day or year. Id.

State v. Herrera
20220068-CA 	4 	2025 UT App 1
with intoxication delirium” in the chart because the system had
limited options to alert physicians to patients’ alcohol abuse.
Nurse testified that Nicole was one of the most memorable
patients in her thirty-year career “[b]ecause of how upset she
was” when she showed Nurse the bruises and how Nicole’s
demeanor and willingness to talk changed when other hospital
staff began treating her. Nurse testified that this “bothered” her
so she decided to give a statement to Officer “to speak out” for
Nicole.
The Interview and Arrest
¶6 	The next day, Officer went to Herrera’s house, took him
into custody, and transported him to the police station for an
interview. Herrera told Officer that he and Nicole were living
together but when they argued, Nicole would sometimes go to
Tom’s house. Herrera also initially told Officer that he did not go
to Tom’s house on Wednesday but, after further questioning,
stated he did go to Tom’s house on Wednesday. When questioned
by Officer about the assaults, Herrera again changed his story and
said he did not go to Tom’s house and that no assault had
occurred. 	Herrera 	also 	made 	inconsistent 	statements 	about
whether he had last seen Nicole on Monday or Wednesday.
¶7 	After the interview, Officer “made an ultimate decision to
place [Herrera] under arrest” due to the “inconsistencies of the
interview, the statements, [and the] injuries.” Herrera was later
charged with aggravated burglary, one count of assault against
Tom, and one count each of aggravated assault and assault
against Nicole.
The Trial
¶8 	The case proceeded to a two-day jury trial. The State called
Tom, Nurse, and Officer to testify as to the events described
above. The recording of Officer’s interrogation of Herrera was not

State v. Herrera
20220068-CA 	5 	2025 UT App 1
played for the jury because it had been inadvertently erased.6
After Officer testified, the State rested. Nicole was unable to
testify because she had passed away from unrelated medical
complications.
¶9 	The defense opened its case by calling Herrera, who
testified to a vastly different account of the events. Herrera
testified that he went to Tom’s house on Wednesday to look for
Nicole because she left his house on Monday and had not
returned. Herrera stated that Nicole would only visit Tom if Tom
left the door to his house open because Tom had once tried to
sexually assault her. When Herrera arrived at Tom’s house and
saw the door was open, he assumed Nicole was there. He stated
that when he walked up to the door, Tom greeted him by saying,
“How you doing, [Herrera]?” and, “Come on in.”
¶10 	Herrera said he entered the house and saw Nicole sitting
on the couch with Tom. Herrera then asked Nicole if she was okay
and why she “didn’t come home.” Herrera stated Nicole told
him that Tom was “getting ready to give her a ride to the
hospital because of her drinking.” Herrera then stated he turned
to Tom and asked, “[W]hat’s this I hear, that you tried sexually
assaulting [Nicole]?” Herrera stated that Tom then stood up and
“came at [him] and pushed [him] and told [him] to get out of his
house.” Herrera said that in response, he pushed Tom and
punched him in the chest. Herrera exited the house after Tom said
“he was going to go get his gun.” Herrera testified that he did not
hit Nicole while at the house or at any time during their
relationship.
¶11 	On cross-examination, Herrera stated that he did not
remember telling Officer that he never went to Tom’s house and
6. While Officer recorded the interview and used the recording to
complete his report, he failed to save the recording from the server
where it was temporarily stored, so it was erased.

State v. Herrera
20220068-CA 	6 	2025 UT App 1
clarified when he had last seen Nicole. The State twice asked
Herrera if Officer was “lying” in his testimony about Herrera’s
statements. The State also asked Herrera four times if Nicole lied
in her statements at the hospital and why she would do so.
Counsel lodged no objections to these questions.
¶12 	The State then called Officer as a rebuttal witness. Officer
summarized his interrogation of Herrera, including that during
the interrogation Herrera first admitted to going to Tom’s house
on Wednesday and then denied it and that Herrera told him the
last time he had seen Nicole was on Monday.
¶13 	In closing, the State encouraged the jury to convict Herrera
on all four counts because of the bruise on Nicole’s neck and mark
on her ear, together with Nurse’s and Tom’s testimony. Counsel
argued for an acquittal, highlighting potential reasons for Nicole
to be less than truthful in her statements at the hospital, including
the influence of Tom, her seeking medication, and her high level
of intoxication.
¶14 	The jury acquitted Herrera of aggravated burglary but
convicted him of assault against Tom and both aggravated assault
and assault against Nicole. The Court sentenced Herrera to an
indeterminate term not to exceed five years in prison for the
aggravated assault and terms of 364 and 180 days in jail for the
assault convictions, which were to run concurrently with the
prison sentence.
ISSUES AND STANDARD OF REVIEW
¶15 	Herrera now appeals, raising three claims of ineffective
assistance of counsel based on Counsel’s failure to object to
particular testimony. “When a claim of ineffective assistance of
counsel is raised for the first time on appeal, there is no lower
court ruling to review and we must decide whether the defendant
was deprived of the effective assistance of counsel as a matter of

State v. Herrera
20220068-CA 	7 	2025 UT App 1
law.” State v. Popp, 2019 UT App 173, ¶ 19, 453 P.3d 657 (cleaned
up).
ANALYSIS
¶16 	The Sixth Amendment to the United States Constitution
affords criminal defendants “the right to effective assistance of
counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984). To
demonstrate ineffective assistance of counsel, Herrera must show
“(1) that his counsel’s performance was objectively deficient, and
(2) that the deficient performance prejudiced the defense.” State v.
Marquina, 2018 UT App 219, ¶ 36, 437 P.3d 628 (cleaned up), aff’d,
478 P.3d 37 (Utah 2020); see also Strickland, 466 U.S. at 687
(articulating 	the 	two-pronged 	test 	for 	evaluating 	claims 	of
ineffective assistance of counsel). Both elements must be present
to demonstrate ineffective assistance. See State v. Powell, 2020 UT
App 63, ¶ 19, 463 P.3d 705. “If either is lacking, the claim fails, and
the court need not address the other.” Id. (cleaned up).
¶17 	“To establish deficient performance, a defendant must
show that trial counsel’s representation fell below an objective
standard of reasonableness when measured against prevailing
professional norms.” State v. Weaver, 2023 UT App 154, ¶ 20, 541
P.3d 958 (cleaned up). “Our scrutiny of counsel’s performance
must be highly deferential,” and we must consider “whether
counsel’s 	assistance 	was 	reasonable 	considering 	all 	the
circumstances,” id. (cleaned up), beginning with the assumption
that “the challenged action might be considered sound trial
strategy,” State v. Ames, 2024 UT App 30, ¶ 18, 546 P.3d 356
(cleaned up), cert. denied, 550 P.3d 993 (Utah 2024).
¶18 	And to establish prejudice, Herrera must demonstrate
“that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been 	different.” 	Strickland, 	466 	U.S. 	at 	694. 	Demonstrating

State v. Herrera
20220068-CA 	8 	2025 UT App 1
prejudice 	“is 	a 	relatively 	high 	hurdle” 	for 	a 	defendant 	to
overcome because it requires a defendant to show not only that
there 	is 	a 	“potential 	effect 	on 	the 	outcome” 	but 	that 	“the
likelihood of a different result” is substantial. State v. Apodaca,
2019 UT 54, ¶ 50, 448 P.3d 1255 (cleaned up).
I. Officer’s Testimony About Herrera’s Custodial Interrogation
¶19 	Herrera first asserts that Counsel provided ineffective
assistance 	by 	failing 	to 	object 	to 	Officer’s 	testimony 	about
Herrera’s custodial interrogation during the State’s case in chief
because no electronic recording of the interrogation was available.
Rule 616 of the Utah Rules of Evidence requires that “evidence of
a 	statement 	made 	by 	the 	defendant 	during 	a 	custodial
interrogation in a place of detention shall not be admitted against
the 	defendant 	in 	a 	felony 	criminal 	prosecution 	unless 	an
electronic recording of the statement was made and is available at
trial.” 	Utah 	R. 	Evid. 	616(b). 	Assuming, 	then, 	that 	Counsel
performed deficiently by not objecting to Officer’s testimony,
Herrera must still demonstrate prejudice. He must prove “that
there 	is 	a 	reasonable 	probability 	that, 	but 	for 	counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. In evaluating whether
Herrera met this “high hurdle,” State v. Apodaca, 2019 UT 54, ¶ 50,
448 P.3d 1255 (cleaned up), this court considers “a hypothetical—
an alternative universe where the testimony was not presented to
the jury.” State v. Hernandez, 2024 UT App 127, ¶ 26, 557 P.3d 639
(cleaned up), cert. denied, Dec. 19, 2024 (No. 20241167).
¶20 	If Counsel successfully had objected to Officer’s testimony
during the State’s case in chief, Officer’s testimony about the
interrogation 	would 	nonetheless 	have 	been 	admissible 	to
impeach Herrera. See Utah R. Evid. 616(c)(3) (an exception to rule
616’s 	prohibition 	is 	when 	“[t]he 	statement 	is 	offered 	for
impeachment purposes only”). Because 	Herrera’s statements
during the interrogation about whether he visited Tom’s house, if

State v. Herrera
20220068-CA 	9 	2025 UT App 1
any altercation occurred, and when he last saw Nicole were
inconsistent, it is very likely that most if not all of Officer’s
testimony would have come in as impeachment evidence during
the State’s rebuttal. See id. Although Herrera makes much of the
timing difference in when the jury would have heard about the
inconsistencies in Herrera’s testimony, we fail to see how this
timing 	difference 	alone 	would 	have 	resulted 	in 	a 	different
outcome for Herrera. Indeed, in this alternative universe, Officer’s
testimony about the interrogation and Herrera’s inconsistencies
would have come immediately following Herrera’s testimony
and been the last testimony heard by the jury, thus having
significant impact.
¶21 	It is also possible that in a different alternative universe
Herrera would have decided not to testify in his defense and the
jury 	would 	not 	have 	heard 	Officer’s 	testimony 	about 	the
interrogation. But Herrera was the only witness called by the
defense, and if he did not testify, the jury would not have heard
Herrera’s alternative explanation of the events. While Herrera
argues that the evidence against him is not overwhelming,
without his testimony the jury would have heard only the
following unrebutted evidence: Tom’s testimony that Nicole
arrived at his house with a bruise and that Herrera arrived five
minutes 	later 	and 	punched 	Tom 	multiple 	times; 	Nurse’s
testimony about Nicole’s injuries and Nicole’s statement that her
“husband” 	caused 	them; 	and 	Officer’s 	testimony 	about 	his
conversation with Nurse and Nicole at the hospital and his
observation of Nicole’s injuries.
¶22 	In 	either 	of 	these 	alternative 	universes, 	we 	are 	not
persuaded that a jury likely would have acquitted Herrera.
Because Herrera failed to demonstrate that Counsel’s failure to
object 	to 	Officer’s 	testimony 	about 	Herrera’s 	custodial
interrogation during the State’s case in chief was prejudicial,
Herrera’s first claim of ineffective assistance of counsel fails.

State v. Herrera
20220068-CA 	10 	2025 UT App 1
II. Witnesses Testifying About the Credibility of Other Witnesses
¶23 	Herrera next asserts that Counsel was ineffective because
the State asked both Officer and Herrera to “opine on the
truthfulness of other witnesses” and Counsel failed to object
under rule 608 of the Utah Rules of Evidence. That rule prohibits
witnesses from offering “a direct opinion of another witness’s
truthfulness on a particular occasion.” State v. King, 2010 UT App
396, ¶ 44, 248 P.3d 984 (cleaned up). We address each witness’s
testimony in turn.
A. 	Officer’s Testimony
¶24 	Herrera 	argues 	that 	Counsel 	provided 	ineffective
assistance by failing to object to Officer’s testimony in which he
stated, “I made a decision kind of with his inconsistencies of the
interview, the statements, injuries and stuff—I mean, I made an
ultimate decision to place him under arrest.” Herrera argues that
no 	reasonable 	defense 	counsel 	would 	have 	allowed 	a 	law
enforcement 	officer 	to 	give 	this 	testimony, 	which 	Herrera
characterizes as an opinion as to Herrera’s credibility. In support
of his argument, Herrera asserts that Officer’s statement is similar
to the statement of the officer in Provo City v. Bishop-Garcia, 2022
UT App 16, 505 P.3d 81, where this court concluded that counsel
performed deficiently by not objecting “under rule 608(a).” Id.
¶ 22. We disagree, however, because Officer’s statements here are
not of the same character as those in Bishop-Garcia.
¶25 	In Bishop-Garcia, the prosecutor asked the officer directly
“whether 	he 	found 	[the 	victim] 	to 	be 	credible 	when 	he
interviewed 	her,” 	to 	which 	he 	responded, 	“Yes,” 	and 	the
prosecutor 	later 	asked 	the 	officer 	“why 	he 	arrested” 	the
defendant, to which the officer responded that he arrested the
defendant after determining that the victim’s “statement was
more credible than the” defendant’s statement. Id. ¶¶ 21–22
(cleaned 	up). 	This 	court 	concluded 	that 	trial 	counsel’s

State v. Herrera
20220068-CA 	11 	2025 UT App 1
performance 	was 	deficient 	because 	“counsel 	had 	ample
opportunity 	to 	object 	and 	prevent 	the 	error” 	where 	“the
prosecution 	overtly 	elicited 	each 	instance 	of 	inadmissible
testimony.” Id. ¶ 25. That is not the case here. Unlike in Bishop-
Garcia, the State did not overtly elicit Officer’s testimony as to
Herrera’s credibility. Instead, the State asked Officer, “[A]fter
your interview [of Herrera], was there anything else of note that
occurred—that you did?” It would have been impossible for
Counsel to predict that Officer was going to respond to the State’s
general question with a statement discussing the credibility of
Herrera. And as this court noted in Bishop-Garcia, counsel in that
case 	performed 	deficiently 	precisely 	because 	it 	“was 	not 	a
situation” 	where 	“the 	officer 	spontaneously 	volunteered 	an
inadmissible opinion.” Id. ¶ 25.
¶26 	Here, 	after 	Officer 	spontaneously 	volunteered 	an
inadmissible opinion, Counsel had to decide whether to object
and ask for a curative instruction after the jury already heard
Officer’s testimony and risk drawing more attention to it. This
court has long held that deciding whether to object to testimony
and request a curative instruction after the jury has heard it is “a
strategic decision,” where counsel must weigh the risk of not
objecting with the risk of objecting and “drawing attention to
unfavorable testimony.” State v. Tippets, 2021 UT App 137, ¶ 29,
501 P.3d 570 (cleaned up). Counsel’s decision not to object and
request a curative instruction may be considered “sound trial
strategy” because any benefit Herrera “may have gained by
requesting a curative instruction may have been offset by” the
additional attention drawn to Officer’s statement that he put
Herrera 	under 	arrest 	because 	of 	the 	inconsistencies 	in 	his
interview. State v. Popp, 2019 UT App 173, ¶ 50, 453 P.3d 657
(cleaned up).
¶27 	Accordingly, Herrera has not shown that Counsel acted
deficiently by not objecting to Officer’s testimony and requesting
a curative instruction.

State v. Herrera
20220068-CA 	12 	2025 UT App 1
B. 	Herrera’s Testimony
¶28 	Herrera also argues that Counsel provided ineffective
assistance by failing to object when the State asked Herrera twice
if Officer lied and asked Herrera four times whether Nicole lied.
As 	the 	State 	conceded 	during 	oral 	argument, 	our 	caselaw
prohibits the State from asking criminal defendants about the
credibility of other witnesses, and if Counsel had objected, that
objection would have been sustained. See State v. Emmett, 839 P.2d
781, 787 (Utah 1992) (“Several courts have noted that it is
improper to ask a criminal defendant to comment on the veracity
of another witness.”); State v. Fairbourn, 2017 UT App 158, ¶¶ 32–
33, 405 P.3d 789 (noting that the prosecution cannot ask a
testifying 	criminal 	defendant 	“to 	decide 	whether 	the 	other
witnesses had lied”).
¶29 	However, even if Counsel’s performance in failing to object
under rule 608 was deficient, Herrera must still demonstrate that
he was prejudiced as a result. Questions where the prosecution
asks a criminal defendant whether another witness is lying can be
prejudicial when the question “suggests to the jury that a witness
is committing perjury even though there are other explanations
for the inconsistency.” Emmett, 839 P.2d at 787. These questions
can also be prejudicial when they force the defendant to comment
“on the character and motivations of another witness who may
appear sympathetic to the jury.” Id.
¶30 	The State asked Herrera, “So you think that [Officer] is
lying about this?” and “[S]o that means one of you is lying. So do
you think that?” In response, Herrera never stated that Officer
was lying, and the questions allowed Herrera to explain the
discrepancy between the statements he gave to Officer. Herrera’s
refusal 	to 	state 	that 	Officer 	was 	lying 	and 	his 	subsequent
testimony 	do not “suggest[] 	to the 	jury that” 	Herrera was
committing perjury, id.; rather, they provide the jury with a
plausible 	explanation 	for 	Herrera’s 	inconsistent 	statements

State v. Herrera
20220068-CA 	13 	2025 UT App 1
during his interrogation that the last time he saw Nicole before
the events at the house was on Monday, but he also saw her when
he was at the house on Wednesday. Because Herrera refused to
testify that Officer was lying and provided testimony clarifying
the discrepancies of when he last saw Nicole in response to the
State’s questions, we conclude that Herrera was not prejudiced by
Counsel failing to object.
¶31 	In contrast, when the State repeatedly asked Herrera if
Nicole lied, he stated that she did. However, Herrera has not
established prejudice from this testimony either. Even though
Herrera stated that Nicole lied, he needed to explain away her
identification of him as the person who caused her injuries, and
stating that she lied when she made contradictory statements
about the cause of her injuries is less of an attack on Nicole’s
character and more of an explanation of why the jury should not
believe Nicole’s initial statements about the cause of her injuries.
See id. Further, even if the State did not ask Herrera whether
Nicole lied, for the jury to believe Herrera’s version of events, he
would need to explain why Nicole first told hospital staff that her
husband caused her injuries, and claiming that Nicole was lying
is a sound way to do it. Indeed, during closing arguments,
Counsel attempted to explain away Nicole’s initial statements by
telling the jury that they “can’t know for sure” whether Nicole
was “telling the truth.” We fail to see how Herrera was prejudiced
by Counsel failing to object to such questions when Counsel
would go on to make the same argument in closing just a short
time later. Accordingly, Herrera has not established that he was
prejudiced by these questions.
¶32 	Because Herrera cannot demonstrate prejudice from the
State’s questions to him about the truthfulness of either Officer or
Nicole, 	he 	has 	failed 	to 	prove 	that 	he 	received 	ineffective
assistance of counsel.

State v. Herrera
20220068-CA 	14 	2025 UT App 1
III. Nurse’s Testimony
¶33 	Finally, Herrera takes issue with Nurse’s testimony that
she wanted to “speak out” for Nicole and that Nicole’s case was
one of the cases that bothered her the most in her thirty years as a
nurse. Herrera argues that Nurse’s testimony violated rule 403 of
the Utah Rules of Evidence and that Counsel’s failure to object to
it was ineffective assistance of counsel.
¶34 	Rule 403 allows for the exclusion of otherwise relevant
evidence 	if 	the 	evidence’s 	“probative 	value 	is 	substantially
outweighed by a danger of . . . unfair prejudice.” Utah R. Evid.
403. Because “unfair prejudice results only where the evidence
has an undue tendency to suggest decision upon an improper
basis,” we recognize “a presumption in favor of admissibility.”
State v. Green, 2023 UT 10, ¶ 78, 532 P.3d 930 (cleaned up). An
improper basis can include emotional decision-making, such as
“bias, sympathy, hatred, contempt, retribution or horror.” Woods
v. Zeluff, 2007 UT App 84, ¶ 7, 158 P.3d 552 (cleaned up).
¶35 	Herrera 	argues 	that 	the 	probative 	value 	of 	Nurse’s
testimony was low because Nurse did not see how Nicole was
injured, so her statements that Nicole’s case “bothered” her and
that she wanted to “speak out” for Nicole were not helpful to the
jury in determining how Nicole got her injuries. Herrera further
argues that this testimony created a risk of unfair prejudice
because it encouraged the jury to “resolve its credibility concerns
in favor of Nicole” due to how bothered Nurse was by the case.
¶36 	But Herrera inappropriately discounts the probative value
of 	Nurse’s 	statements. 	After 	Counsel 	suggested 	on 	cross-
examination 	that 	Nurse’s 	memory 	was 	suspect 	due 	to 	her
inability to remember anything about Tom, Nurse’s testimony on
redirect about why Nicole was memorable to her shows why,
nearly three years later, she still remembered Nicole but not Tom.
Given 	this 	context, 	it 	is 	unlikely 	that 	Counsel 	could 	have

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20220068-CA 	15 	2025 UT App 1
successfully objected to the testimony under rule 403 because the
danger of unfair prejudice—that the jury would have relied on
Nurse’s statement explaining her memory to decide the case on
“an 	improper 	basis”—did 	not 	substantially 	outweigh 	the
probative value of her testimony to explain her memory after it
was challenged by Herrera. See Green, 2023 UT 10, ¶ 78. Because
the “failure to raise futile objections does not constitute ineffective
assistance of counsel,” we conclude that Counsel’s failure to
object to Nurse’s statements under rule 403 does not render
Counsel’s performance ineffective. State v. Kelley, 2000 UT 41,
¶ 26, 1 P.3d 546.
CONCLUSION
¶37 	Herrera has not demonstrated that Counsel provided
constitutionally 	ineffective 	assistance 	by 	failing 	to 	object 	to
various testimony at trial. We thus affirm Herrera’s convictions.