Provo City v. Bishop-Garcia

2022 UT App 16
THE UTAH COURT OF APPEALS
PROVO C ITY ,
Appellee,
v.
M ELVIN BILL BISHOP -G ARCIA,
Appellant.
Opinion
No. 20190872-CA
Filed February 3, 2022
Fourth District Court, Provo Department
The Honorable Donald J. Eyre
No. 171404066
Emily Adams, Freyja Johnson, and Cherise M.
Bacalski, Attorneys for Appellant
J. Brian Jones, Stephen H. Schreiner, and Matthew M.
Griffiths, Attorneys for Appellee
JUDGE DIANA H AGEN authored this Opinion, in which JUDGES JILL
M. POHLMAN and R YAN M. HARRIS concurred.
HAGEN, Judge:
¶1 	Our 	evidentiary 	rules 	prohibit 	“testimony 	as 	to 	a
witness’s truthfulness on a particular occasion.” State v. Boyer,
2020 UT App 23, ¶ 44, 460 P.3d 569 (cleaned up). In this case,
Appellant Melvin Bishop-Garcia argues that he did not receive
constitutionally effective assistance of counsel at trial because his
attorney failed to object to such inadmissible testimony. We
agree, vacate Bishop-Garcia’s convictions for unlawful detention
and sexual battery, and remand for a new trial.

Provo City v. Bishop-Garcia
20190872-CA 	2 	2022 UT App 16
BACKGROUND
¶2 	The alleged crimes occurred at Bishop-Garcia’s home in
Provo, Utah—a duplex located next door to the restaurant where
his wife worked. The duplex had an external entrance leading to
the 	basement, 	where 	the 	restaurant’s 	owner—also 	Bishop-
Garcia’s landlord—stored ice for the restaurant’s soda machine.
Every morning, restaurant employees would go to the basement
to retrieve ice for the machine.
¶3 	The 	owner’s 	family 	friend, 	Laura,1 	worked 	at 	the
restaurant 	with 	Bishop-Garcia’s 	wife. 	One 	morning, 	it 	was
Laura’s turn to open the restaurant. After unlocking the doors,
she went next door to the duplex, retrieved buckets of ice from
the basement, then crossed the backyard on her way back to the
restaurant. At this point, Bishop-Garcia emerged from the back
door of the house and called to Laura, offering to help.
¶4 	As for what happened next, the two provided conflicting
accounts at trial. Laura testified that she declined the offer but
that Bishop-Garcia invited her inside on the pretense that his
wife wanted to speak with her. Thinking that the conversation
would 	only 	last 	a 	moment, 	Laura 	followed 	Bishop-Garcia
inside—ice buckets in hand—and waited near the back door
while Bishop-Garcia called for his wife (who was not home). As
they waited, Bishop-Garcia moved directly behind Laura and
began “telling [her] that [she] looked pretty, and that [she] had
lost weight.” He then grabbed her breast and buttocks.
¶5 	Laura immediately turned to leave and, following a brief
struggle at the door, managed to get outside. Bishop-Garcia
chased after Laura, wrapped his arms around her from behind,
and tried to kiss her on the cheek. Once again, Laura broke free
and fled to the restaurant, where she locked the back door and
1. A pseudonym.

Provo City v. Bishop-Garcia
20190872-CA 	3 	2022 UT App 16
called the owner. Moments later, Bishop-Garcia entered through
the front door, found Laura, and insisted that she “not . . . call
the police because he was afraid of losing everything.” Laura
testified that Bishop-Garcia remained “very persistent” until the
owner 	arrived, 	at 	which 	point 	Bishop-Garcia 	exited 	the
restaurant and met the owner outside.
¶6 	Bishop-Garcia told a different story. He testified that
Laura had accepted his help and that the two briefly embraced
before going inside to talk “[a]bout anything.” Once inside,
Bishop-Garcia told Laura that his wife was not home, after
which Laura “changed her demeanor” and quickly returned to
the 	restaurant. 	“In 	[Bishop-Garcia’s] 	mind,” 	he 	“was 	still
helping” Laura, so he followed her there. He could tell that
something was bothering Laura, so even when she locked the
back 	door, 	Bishop-Garcia 	entered 	through 	the 	front 	and
attempted to “calm her down.” According to Bishop-Garcia,
Laura inexplicably threatened to call the police, and Bishop-
Garcia returned home until the owner showed up.
¶7 	Both testified that the owner arrived, spoke with each of
them, then called the police. The responding officer interviewed
all three parties and decided to arrest Bishop-Garcia. Ultimately,
Bishop-Garcia was charged with unlawful detention and sexual
battery, and Laura, Bishop-Garcia, the owner, and the officer all
testified 	at 	Bishop-Garcia’s 	jury 	trial. 	This appeal 	primarily
concerns the owner’s and the officer’s respective testimonies.
¶8 	For his part, the owner testified about his conversation
with Laura after arriving at the restaurant. The owner stated that
Laura had been crying over the phone and that, when he
arrived, Laura “was still upset.” She told him that Bishop-Garcia
had touched her inappropriately, so the owner “decided to call
the police right away.”
¶9 	At trial, the prosecutor asked the owner, “Did you believe
[Laura’s] story?” The owner replied, “I did.”

Provo City v. Bishop-Garcia
20190872-CA 	4 	2022 UT App 16
¶10 	The officer also testified about his conversations with
Laura that morning. The prosecutor asked the officer, “When
you heard [Laura’s] story, did it make sense to you?” The officer
said, “It did.” The prosecutor then asked, “Did you find [Laura]
to be credible?” The officer replied, “Yes.” The officer explained
that he believed Laura because “[h]er story was consistent” each
time he asked her to recount it.
¶11 	Later, the officer testified about his interactions with
Bishop-Garcia that same morning. The prosecutor asked, “What
were some of the factors that went into your determination to
arrest the defendant?” The officer responded, “[T]he credibility
that I felt with [Laura’s] statement being a consistent statement,
not 	changing. 	The 	inconsistencies 	in 	[Bishop-Garcia’s]
statement[s] . . . .”
¶12 	At no point did defense counsel object to the foregoing
portions of testimony.
¶13 	During closing arguments, the prosecutor framed the case
as “a he-said, she-said case . . . [b]ecause there were only two
people in the house and there were only two people that were
there witnessing [the] conduct.” Near the end of rebuttal closing
argument, the prosecutor said,
[Laura] 	was 	telling 	a 	true 	story. 	[The 	owner]
believed her and the [officer] believed her . . . . It
doesn’t matter if they believed her; it matters if you
believed her. But the fact that they believed her
and the fact that they testified that she was so
emotional, that should lead you to consider, do
you agree with . . . their assessment or do you not?
¶14 	The 	jury found 	Bishop-Garcia 	guilty 	on both 	counts.
Bishop-Garcia now appeals.

Provo City v. Bishop-Garcia
20190872-CA 	5 	2022 UT App 16
ISSUE AND STANDARD OF REVIEW
¶15 	Bishop-Garcia 	contends 	that 	trial 	counsel 	rendered
constitutionally ineffective assistance by failing to object when
the prosecution’s witnesses offered opinions about Laura’s and
Bishop-Garcia’s 	truthfulness 	on 	the 	morning 	of 	the 	alleged
crimes. “We evaluate this as a question of law because it is raised
for the first time on appeal with no lower court ruling to
review.” State v. Bozarth, 2021 UT App 117, ¶ 20, 501 P.3d 116
(cleaned up).
ANALYSIS
¶16 	“To prevail on a claim of ineffective assistance of counsel,
a defendant must show (1) ‘that counsel’s performance was
deficient,’ and (2) ‘that the deficient performance prejudiced the
defense.’” State v. Calvert, 2017 UT App 212, ¶ 21, 407 P.3d 1098
(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). We
assess 	whether 	Bishop-Garcia 	received 	ineffective 	assistance
within this framework.
I. Deficient Performance
¶17 	To 	establish 	deficient 	performance, 	defendants 	“must
show that trial counsel’s ‘representation fell below an objective
standard of reasonableness’ when measured against prevailing
professional norms.” Honie v. State, 2014 UT 19, ¶ 32, 342 P.3d
182 (quoting Strickland, 466 U.S. at 687–88). Defendants must
“overcome the presumption that . . . the challenged action might
be considered sound trial strategy.” Strickland, 466 U.S. 668, 689
(1984) (cleaned up). Even if there was no strategic reason for
forgoing an objection, we must consider whether “correcting the
[purported] 	error 	was 	sufficiently 	important 	under 	the
circumstances 	that 	failure 	to 	do 	so 	was 	objectively
unreasonable—i.e., a battle that competent counsel would have
fought.” State v. Ray, 2020 UT 12, ¶ 32, 469 P.3d 871.

Provo City v. Bishop-Garcia
20190872-CA 	6 	2022 UT App 16
¶18 	When analyzing deficient performance, we often begin by
determining whether an error occurred that counsel failed to
correct. See State v. Makaya, 2020 UT App 152, ¶ 9, 476 P.3d 1021
(“[T]he failure of counsel to make motions or objections which
would 	be 	futile 	if 	raised 	does 	not 	constitute 	ineffective
assistance.” 	(cleaned 	up)). 	Accordingly, 	here, 	we 	begin 	by
assessing 	whether 	Bishop-Garcia 	has 	identified 	instances 	of
inadmissible testimony to which counsel could have properly
objected. Because we conclude that an objection was merited in
each instance, we next determine whether doing so was “a battle
that competent counsel would have fought.” See Ray, 2020 UT
12, ¶ 32. Given that the challenged testimony concerns the
central issue in this case, we conclude that it was objectively
unreasonable for counsel not to object.
A. 	The Prosecution’s Evidence Was Objectionable.
¶19 	Bishop-Garcia identifies three instances of testimony he
argues were inadmissible under rule 608(a) of the Utah Rules of
Evidence: (1) the owner’s statement that he believed Laura’s
story, (2) the officer’s statement that he found Laura credible,
and (3) the officer’s explanation for why he decided to arrest
Bishop-Garcia.2 	We 	agree 	that 	the 	prosecution 	elicited
inadmissible testimony in each of the three instances.
2. Bishop-Garcia also challenges his convictions based on trial
counsel’s 	failure 	to 	object 	to 	statements 	the 	officer 	made
regarding his method for assessing credibility, which Bishop-
Garcia argues was impermissible expert testimony. See State v.
Rammel, 	721 	P.2d 	498, 	500–01 	(Utah 	1986) 	(holding 	that
detective’s 	testimony 	about 	another 	witness’s 	truthfulness
“[b]ased 	on 	his 	experience 	interviewing 	several 	hundred
criminal suspects” was inadmissible expert opinion); State v.
Valdez, 2021 UT App 13, ¶ 55, 482 P.3d 861 (declaring improper
(continued…)

Provo City v. Bishop-Garcia
20190872-CA 	7 	2022 UT App 16
¶20 	Under 	rule 	608(a), 	“[a] 	witness’s 	credibility 	may 	be
attacked 	or 	supported 	by 	testimony 	about 	the 	witness’s
reputation 	for 	having 	a 	character 	for 	truthfulness 	or
untruthfulness.” 	Utah 	R. 	Evid. 	608(a). 	The 	rule 	“permits
testimony concerning a witness’s general character or reputation
for truthfulness or untruthfulness,” State v. King, 2010 UT App
396, ¶ 44, 248 P.3d 984, but “bars direct testimony regarding the
truthfulness of a witness on a particular occasion,” State v.
Adams, 2000 UT 42, ¶ 14, 5 P.3d 642 (cleaned up). This ensures
that credibility determinations remain “the exclusive province of
the jury.” See State v. Lewis, 2020 UT App 132, ¶ 21, 475 P.3d 956.
¶21 	Here, the testimony that Bishop-Garcia has identified was
inadmissible under rule 608(a) because, in each instance, the
witness testified about another’s truthfulness on a particular
occasion. First, the prosecutor asked the owner whether he
“believe[d] [Laura’s] story” after speaking with Laura on the
phone and at the restaurant. By responding affirmatively, the
owner 	directly 	opined 	on 	Laura’s 	truthfulness 	on 	those
occasions. Second, the prosecutor similarly asked the officer
whether 	he 	had 	found 	Laura 	“to 	be 	credible” 	when 	he
interviewed her on scene. The officer said, “Yes.” Like the
owner, the officer thereby offered a direct opinion on whether
Laura was being truthful with him on the specific occasion when
she reported the alleged crimes.
(…continued)
an officer’s testimony that he was “a sort of human lie detector”),
cert. granted, 496 P.3d 715 (Utah 2021). But because we determine
that 	Bishop-Garcia 	received 	ineffective 	assistance 	based 	on
counsel’s failure to object to other testimony, we need not reach
the issue of whether counsel rendered ineffective assistance by
failing to object to this additional testimony.

Provo City v. Bishop-Garcia
20190872-CA 	8 	2022 UT App 16
¶22 	Finally, the officer testified that he arrested Bishop-Garcia
based on a determination that Laura’s statement was more
credible than the statement that Bishop-Garcia provided. When
asked why he arrested Bishop-Garcia, the officer explained that,
unlike 	Laura’s 	statement, 	which 	was 	“consistent” 	and 	“not
changing,” 	Bishop-Garcia’s 	statement 	had 	“inconsistencies.”
Merely observing that a witness’s statements are consistent does
not necessarily amount to bolstering. Compare Adams, 2000 UT
42, ¶¶ 19–20 (holding that rule 608(a) barred testimony that
victim’s account was not only “consistent,” but also did not
appear coached), and State v. Bragg, 2013 UT App 282, ¶ 31, 317
P.3d 452 (holding that it was “obvious error” to admit testimony
that the victim was not only “consistent” but also “genuine and
did not appear to have been coached”), with State v. Bair, 2012
UT App 106, ¶ 47, 275 P.3d 1050 (holding that rule 608(a)
permitted 	the 	witness’s 	testimony 	that 	the 	victim’s 	“trial
testimony was consistent with the allegations she made during
[a prior] interview”). Here, however, the officer did not merely
state that Laura’s account was consistent; he indicated that, after
interviewing both Laura and Bishop-Garcia at the scene, he
made 	the 	decision 	to 	arrest 	Bishop-Garcia 	based 	on 	his
assessment of Bishop-Garcia’s story relative to Laura’s. Thus, in
context, 	the 	officer 	gave 	“the 	equivalent 	of 	an 	affirmative
statement that” Bishop-Garcia was being untruthful when he
interviewed him that morning. See Adams, 2000 UT 42, ¶ 13.
Therefore, we have no difficulty concluding that each instance of
testimony merited an objection under rule 608(a).
B. 	Trial Counsel’s Failure to Object Constitutes Deficient
Performance.
¶23 	Under 	the 	circumstances 	of 	this 	case, 	trial 	counsel’s
failure to object to each instance of testimony that Bishop-Garcia
has 	identified 	was 	objectively 	unreasonable. 	We 	reach 	that
conclusion for several reasons.

Provo City v. Bishop-Garcia
20190872-CA 	9 	2022 UT App 16
¶24 	First, the testimony at issue was obviously inadmissible.
Our case law is rich with examples of rule 608(a) in action. See
State 	v. 	Jones, 	2020 	UT 	App 	161, 	¶¶ 	15–17, 	478 	P.3d 	1055
(discussing cases). And we find it particularly persuasive that
the admission of similar testimony has been held to constitute
not just error, but plain error. In State v. Hoyt, 806 P.2d 204 (Utah
Ct. App. 1991), for example, we held that the admission of expert
testimony that a child sexual abuse victim was “truthful in her
allegations” was plainly erroneous, violating a “time-honored
principle of evidence.” Id. at 210–11 (cleaned up). In State v.
Adams, 955 P.2d 781 (Utah Ct. App. 1998), we concluded—and
the State conceded on appeal—that a detective’s testimony that
he “did not believe [the victim] had been coached” obviously
violated rule 608(a). Id. at 785–86. And in State v. Cegers, 2019 UT
App 54, 440 P.3d 924, we held that a counselor’s testimony that
the 	victim 	would 	not 	have 	fabricated 	the 	sexual 	abuse
allegations to get a scholarship was indistinguishable “from the
impermissible bolstering we have previously deemed to be
plainly 	inadmissible.” 	Id. 	¶ 	30. 	Thus, 	it 	should 	have 	been
apparent 	to 	counsel 	that 	the 	testimony 	was 	not 	merely
inadmissible, but plainly so.
¶25 	Second, counsel had ample opportunity to object and
prevent the error. This was not a situation in which the owner
and 	the 	officer 	spontaneously 	volunteered 	an 	inadmissible
opinion, such that counsel had to weigh the “risk of drawing
attention to unfavorable testimony” by objecting. See State v.
Tippets, 	2021 	UT 	App 	137, 	¶ 	29 	(cleaned 	up). 	Instead, 	the
prosecution 	overtly 	elicited 	each 	instance 	of 	inadmissible
testimony. The prosecutor asked the owner, “Did you believe
[Laura’s] story?” Similarly, the prosecutor asked the officer, “Did
you 	find 	[Laura] 	to 	be 	credible?” 	Those 	questions 	were
obviously improper and should have prompted an immediate
objection 	before 	the 	jury 	heard 	the 	inadmissible 	response.
Reasonable counsel would have also anticipated that asking the
officer about the factors that went into arresting Bishop-Garcia

Provo City v. Bishop-Garcia
20190872-CA 	10 	2022 UT App 16
would 	similarly 	call 	for 	inadmissible 	testimony 	about 	the
relative credibility of Laura and Bishop-Garcia because, based on
the nature of the alleged crimes, their respective statements were
the only evidence on which the officer could have relied in
determining that a crime had occurred.
¶26 	Without 	disputing 	that 	the 	testimony 	was 	plainly
inadmissible, Provo City suggests on appeal that objectively
reasonable counsel could have nonetheless chosen not to object
as a matter of trial strategy. Specifically, Provo City argues that
“opinions 	about 	[Laura’s] 	consistency 	and 	Bishop-Garcia’s
inconsistency” allowed counsel to “point out counterexamples”
during closing arguments, including “possible inconsistencies
in” Laura’s trial testimony. We “indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland v. Washington, 466 U.S. 668,
689 (1984). Where we can attribute “the challenged action” to “a
sound trial strategy, it follows that counsel did not perform
deficiently.” State v. Scott, 2020 UT 13, ¶ 35, 462 P.3d 350 (cleaned
up).
¶27 	But a purported strategy only justifies counsel’s error if
the strategy was reasonable; “[a]n objectively unreasonable trial
strategy will not suffice.” State v. Ray, 2020 UT 12, ¶ 34 n.7, 469
P.3d 871. The strategy suggested by Provo City relates only to
the third instance, in which the officer testified that he arrested
Bishop-Garcia 	because 	Laura’s 	statement 	was 	consistent 	as
compared to Bishop-Garcia’s. Such a strategy does not explain
why counsel did not object to the first two instances in which
witnesses were asked directly whether they believed Laura.
Moreover, 	to 	cast 	doubt 	on 	Laura’s 	credibility, 	it 	was 	not
necessary to allow the officer to offer his opinion that Laura’s
story was more consistent than Bishop-Garcia’s. Even if the
inadmissible testimony was excluded, trial counsel was still free
to point out alleged inconsistencies in Laura’s statement, both on
Laura’s cross-examination and in closing argument. Allowing

Provo City v. Bishop-Garcia
20190872-CA 	11 	2022 UT App 16
the officer’s plainly inadmissible opinion on the parties’ relative
credibility gained nothing for the defense and was not part of a
reasonable strategy.
¶28 	Finally, the issue “was sufficiently important under the
circumstances that counsel’s failure to” object was objectively
unreasonable. See id. ¶ 32. The testimony concerned the central
issue in the case: Laura’s credibility versus Bishop-Garcia’s. As
the prosecutor acknowledged in closing argument, this was a
“he-said, she-said case.” There was no corroborating evidence of
the 	alleged 	crimes. 	There 	were 	no 	other witnesses and 	no
physical evidence. Under such circumstances, it was objectively
unreasonable for trial counsel to voice no objection to testimony
regarding whether Laura or Bishop-Garcia had been truthful on
the morning of the alleged crimes.
¶29 	In sum, the testimony at issue was obviously inadmissible
under 	well-established 	law 	and 	forecasted 	by 	plainly
objectionable questions posed by the prosecution. We cannot
conceive of a reasonable trial strategy to account for counsel’s
failure to object on each occasion. Provo City suggests that the
admission of the testimony allowed the defense to poke holes in
Laura’s story, but that strategy was not furthered by—much less
dependent on—the admission of the improper testimony. And
because it was objectively unreasonable not to object to improper
bolstering where the case hinged entirely on relative credibility,
we determine that counsel rendered deficient performance.
II. Prejudice
¶30 	“An error by counsel, even if professionally unreasonable,
does not 	warrant 	setting 	aside 	the 	judgment 	of 	a 	criminal
proceeding if the error had no effect on the judgment.” Strickland
v. Washington, 466 U.S. 668, 691 (1984). Rather, the defendant
must 	also 	“demonstrate 	a 	reasonable 	probability 	that 	the
outcome of his or her case would have been different absent
counsel’s error.” State v. Scott, 2020 UT 13, ¶ 43, 462 P.3d 350.

Provo City v. Bishop-Garcia
20190872-CA 	12 	2022 UT App 16
Here, we ask whether there is a reasonable probability that the
jury 	would 	not 	have 	convicted 	Bishop-Garcia, 	absent 	the
inadmissible testimony.
¶31 	Bishop-Garcia frames this case as a “credibility contest,”
in which the key issue before the jury was whether it believed
Laura over Bishop-Garcia. (Quoting State v. J.A.L., 2011 UT 27,
¶ 41, 262 P.3d 1.) In Bishop-Garcia’s view, had the inadmissible
testimony been excluded, “there is a reasonable probability that
the jury would have found in [his] favor.”
¶32 	Provo 	City 	disagrees 	with 	Bishop-Garcia’s
characterization 	of 	the 	case, 	arguing 	that 	“a 	great 	deal 	of
additional evidence supported the jury’s verdict.” Provo City
points to undisputed testimony that Bishop-Garcia’s wife was
not home when Bishop-Garcia invited Laura inside, that Laura
took the ice buckets inside, that Bishop-Garcia complimented
Laura on her looks, and that Bishop-Garcia closed the door
behind her. It also directs us to instances where Bishop-Garcia
“contradicted himself,” and to evidence of how emotional Laura
appeared on the morning of the alleged crimes. But none of this
evidence, 	alone 	or 	in 	combination, 	supports 	that 	a 	crime
occurred. “In this case, there was no confession, no third-party
eyewitnesses, and no physical evidence that [Laura] had been
sexually abused; the only direct evidence that abuse occurred
was [Laura’s] testimony.” See State v. Burnett, 2018 UT App 80,
¶ 39, 427 P.3d 288.
¶33 	If 	believed, 	Laura’s 	testimony, 	standing 	alone, 	is
unquestionably enough to support the jury’s verdict. And it is
clear that, in returning a guilty verdict, the jury did believe
Laura’s testimony. But there is a reasonable probability that the
jury might have reached a different conclusion but for the
inadmissible 	testimony. 	The 	jury, 	tasked 	with 	determining
which person was telling the truth, heard testimony that both
the owner, who knew Laura personally, and the officer, who

Provo City v. Bishop-Garcia
20190872-CA 	13 	2022 UT App 16
claimed to have specialized training and experience assessing
credibility, believed Laura’s story. It may be that the jury would
have believed Laura’s testimony even without the improper
bolstering, 	but 	given 	the 	importance 	of 	the 	credibility
determination and the absence of corroborating evidence, the
error undermines our confidence in the verdict.3
¶34 	We 	are 	particularly 	troubled 	by 	the 	fact 	that 	the
prosecution relied heavily on the inadmissible testimony during
closing arguments. In rebuttal, the prosecutor emphasized that
both the owner and the officer believed Laura’s side of the story.
And despite advising the jury that “[i]t doesn’t matter if they
believed her,” the prosecutor immediately doubled-back. The
prosecutor closed the argument by saying, “[T]he fact that [the
owner and the officer] believed her and the fact that they
testified that she was so emotional, that should lead you to
consider, do you agree with . . . their assessment or do you not?”
The emphasis placed on the impermissible testimony in the
prosecutor’s final words to the jury further undermines our
confidence in the outcome.
¶35 	Nonetheless, 	Provo 	City 	argues 	that 	the 	inadmissible
testimony was harmless because “it was quite obvious under the
3. Because sex crimes often lack corroborative evidence and
“hinge[] on [the jury’s] assessment of the victims’ credibility”
over that of defendants, bolstering errors are more likely to be
prejudicial in such cases. See State v. Cegers, 2019 UT App 54,
¶ 37, 440 P.3d 924; see, e.g., id.; State v. Stefaniak, 900 P.2d 1094
(Utah Ct. App. 1995); State v. Iorg, 801 P.2d 938 (Utah Ct. App.
1990). We are mindful that a trial on allegations of sexual abuse
can be deeply traumatic for victims and defendants, and no less
the second time around. It is therefore incumbent on prosecutors
not to elicit such testimony at trial—and on defense counsel to
object when it occurs—to avoid necessitating retrial.

Provo City v. Bishop-Garcia
20190872-CA 	14 	2022 UT App 16
circumstances what [the owner and the officer] believed, even
without their direct testimony confirming it.” It asserts that the
owner was a friend of Laura’s and, therefore, was inevitably
going to believe her; and the fact that the officer decided to arrest
Bishop-Garcia implicitly suggested that he credited Laura’s story
over Bishop-Garcia’s. Where it would have been obvious to the
jury that the testifying witness believed the other witness’s story,
we 	have 	sometimes 	found 	no 	prejudice 	when 	incidental
bolstering testimony is offered by a lay witness. See, e.g., State v.
King, 2010 UT App 396, ¶ 46, 248 P.3d 984 (holding that “any
incidental bolstering by the grandmother was harmless” where
“it would come as no real surprise to the jury that she believed
her granddaughter”); State v. Nunes, 2020 UT App 145, ¶ 23, 476
P.3d 	172 	(“Given 	the 	incidental 	nature 	of 	the 	challenged
statement and the fact that most jurors are likely to assume that a
mother will believe accusations of sexual abuse made by her
own children, we cannot conclude that the challenged portion of
Mother’s testimony had any significant impact on the jury’s
decision to convict . . . .” (cleaned up)). But here the testimony
was not incidental. Both the owner and the officer were directly
asked to opine on Laura’s credibility, and that testimony was
subsequently highlighted in the prosecution’s closing argument.
In addition, by asking the officer to explain why he had arrested
Bishop-Garcia, the prosecution elicited a comparison between
the truthfulness of Laura’s and Bishop-Garcia’s statements. That
testimony followed a description of the officer’s training and his
methods for assessing credibility. The patina of expert testimony
further distinguishes the officer’s inadmissible testimony from
the type of off-hand remark by a family member that this court
has deemed to be harmless. See, e.g., King, 2010 UT App 396,
¶ 46; Nunes, 2020 UT App 145, ¶ 23.
¶36 	Provo 	City 	further 	argues 	that 	several 	of 	the 	jury
instructions 	cured 	the 	harm 	caused 	by 	the 	inadmissible
testimony. We find nothing in these instructions directing the
jury 	to 	set 	aside 	the 	owner’s 	or 	the 	officer’s 	objectionable

Provo City v. Bishop-Garcia
20190872-CA 	15 	2022 UT App 16
statements. On the contrary, the instructions encouraged the jury
to consider each witness’s testimony and to give that testimony
whatever weight it believed it deserved. And although the jury
was instructed not to give the testimony of law enforcement
undue weight, the jury was never instructed to disregard the
officer’s inadmissible testimony assessing the truthfulness of
Laura’s and Bishop-Garcia’s statements.
¶37 	Given the prominence of the inadmissible testimony and
the importance of credibility in this case, Bishop-Garcia has
demonstrated a reasonable probability of a different outcome if
counsel had prevented the error. See State v. Knight, 734 P.2d 913,
920 	(Utah 	1987) 	(“[C]onfidence 	in 	the 	outcome 	may 	be
undermined at some point substantially short of the ‘more
probable than not’ portion of the spectrum.”). Therefore, he is
entitled to a new trial.
CONCLUSION
¶38 	We 	conclude 	that 	the 	prosecution’s witnesses offered
inadmissible testimony regarding Laura’s and Bishop-Garcia’s
truthfulness on the morning of the alleged crimes. Because this
case hinged on whether the jury believed Laura versus Bishop-
Garcia, trial counsel rendered deficient performance by failing to
object to such testimony and counsel’s failure prejudiced Bishop-
Garcia’s defense. Therefore, we hold that Bishop-Garcia received
ineffective assistance of counsel, vacate his convictions, and
remand for a new trial.