State v. Vargas

2025 UT App 142
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
O SCAR S ALAS VARGAS ,
Appellant.
Opinion
No. 20230226-CA
Filed October 2, 2025
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 201900005
Matthew R. Howell, Attorney for Appellant
Derek E. Brown and Natalie M. Edmundson,
Attorneys for Appellee
JUDGE JOHN D. L UTHY authored this Opinion, in which JUDGES
R YAN D. TENNEY and A MY J. O LIVER concurred. JUDGE R YAN D.
TENNEY authored a concurring opinion, which JUDGES JOHN D.
LUTHY and A MY J. O LIVER joined.
LUTHY, Judge:
¶1 	Oscar Salas Vargas appeals his conviction of rape, arguing
that he was denied the effective assistance of counsel because his
trial counsel (Counsel) did not offer into evidence an unaltered
version of a video Vargas took of the naked victim after the rape
(the State had played for the jury a version of the video that
blurred the victim’s body) and because Counsel failed to object to
a hearsay statement made by the victim in a text message to
Vargas 	after 	the 	rape. 	Vargas 	also 	argues 	that 	there 	was
insufficient evidence to support the verdict because the victim’s
testimony was inherently improbable. We conclude that Vargas
has failed to show he received ineffective assistance of counsel

State v. Vargas
20230226-CA 	2 	2025 UT App 142
and that he has failed to demonstrate that the victim’s testimony
was inherently improbable. We therefore affirm.
BACKGROUND1
The Rape
¶2 	Vargas and Kylee2 connected with each other on social
media through mutual friends. Over the course of the next year or
two, Vargas occasionally messaged Kylee and, at some point,
started asking her out. Eventually, Kylee agreed to go on a date.
The two met at a restaurant for dinner and stayed for two or three
hours. During that time, as they “chatted, getting to know each
other,” Kylee had “a couple beers” and “one or two shots” of
“Jägerbomb,” a cocktail of Jägermeister liqueur and an energy
drink.
¶3 	When Vargas and Kylee left the restaurant, “it was still
fairly early . . . and [they] were having a good time,” so they
decided to go to a bar about five minutes away. Vargas, who had
a motorcycle, put his helmet in Kylee’s car, and they rode his
motorcycle together to the bar. At the bar, they shared a pitcher
or two of beer, and Kylee had a couple more shots of Jägerbomb.
Vargas “asked if he could kiss [Kylee],” and she accepted “a
normal[,] soft, regular kiss.” Later, when they went onto the bar’s
patio for Kylee to smoke, Vargas “kissed [her] again and then . . .
started getting handsy.” She “smacked his hand,” told him to
calm down, and said, “You’re not getting anything from me
1. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences in a light most favorable to the verdict,
reciting the facts accordingly. We present conflicting evidence
only when necessary to understand issues raised on appeal.” State
v. Heaps, 2000 UT 5, ¶ 2, 999 P.2d 565 (cleaned up).
2. A pseudonym.

State v. Vargas
20230226-CA 	3 	2025 UT App 142
tonight. I don’t do that.” Vargas said that was “not a problem”
and he “under[stood].” Then they went back inside.
¶4 	By that time, the bar was getting ready to close, so Vargas
and Kylee left and got on his motorcycle with “the original plan”
of “going back to [her] car so [she] could go home”—Kylee’s
teenage son was at home and she had to work “super early” the
next morning. Vargas suggested, however, that they “just stop for
one more drink.” Kylee agreed, and they went to another bar “just
down the street.”
¶5 	When they arrived at the bar down the street, Kylee went
into the bathroom. Vargas told the bartender (Bartender) that he
and Kylee “were staying in the hotel across the parking lot.”
When Kylee returned, Vargas “had bought [them] shots” of what
she believed to be Jägerbomb. Kylee had one, and then some of
her friends walked into the bar. Vargas “immediately . . . started
buying rounds of shots for all of [them].” Kylee “took one more”
and then told Bartender that she was done drinking.
¶6 	At that point, Kylee “was drunk” and “feeling nauseous.”
She went to the bathroom again and “started puking” “a lot.” This
was unusual for Kylee; although she had gotten drunk before, she
had “never puke[d]” as a result and had not “ever been nauseous
like 	that.” 	By 	the 	time 	she 	was 	done 	vomiting, 	she 	was
“completely 	weak,” 	“shaking,” 	and 	having 	“hot 	and 	cold
sweats.” She felt as though her “legs were going to give out” and
“like [she] was going to pass out.” Kylee told Vargas that she did
not feel well and that she needed him to take her to her car so she
could go home.
¶7 	When they got to Vargas’s motorcycle, Vargas told Kylee,
“I’m too drunk to drive. I can’t drive. We need to get a hotel
room.” Kylee “told him no” and that she “just want[ed] to go . . .
to [her] car.” Vargas repeated that he could not drive and said that
he “just need[ed] to get a room to sober up for a minute.” Kylee
suggested that they go back into the bar instead, but Vargas told

State v. Vargas
20230226-CA 	4 	2025 UT App 142
her it was closed. Although Kylee did not believe the bar was
closed, due to her physical condition, she agreed to get a hotel
room. Vargas then “walked [Kylee] across the street” to a hotel
and “left [her] in the parking lot . . . while he went in to . . . get a
room.” Vargas soon returned to Kylee and told her that the hotel
had no rooms available. He then “walked [her] across the street
again to another hotel” and once more “left [her] in the parking
lot” while he went inside. Kylee sat down on the curb and smoked
a cigarette.
¶8 	After Vargas secured a room, he came out and helped
Kylee up.3 As they started to walk toward the hotel entrance,
Vargas momentarily let go of Kylee’s hand, but he offered his
hand again and she took it. They made their way into the hotel
holding hands, with Kylee walking unsteadily. As they went
down the hallway leading to their room, Kylee was unable to
walk straight. She was “swaying and feeling like [she] was not
going to make it to where [they] were going.” The two walked
past the door to their room and then stopped, and Kylee reached
out to steady herself against the hallway wall. Vargas let go of her
hand to turn back toward their room, and Kylee shuffled the other
direction across the hallway. She put her hand up to steady herself
against the opposite wall and then turned back and crossed the
hall again, this time toward their room. While Vargas attempted
to open the door to their room, Kylee walked into the wall next to
3. As noted below, see infra ¶¶ 18, 24, the hotel later provided law
enforcement with surveillance camera video footage (without
audio) of Vargas and Kylee. Other than the quotation regarding
how Kylee felt at the time, which comes from Kylee’s testimony,
the facts in this paragraph come from the hotel surveillance
videos. Additional facts recited below regarding timing and
occurrences that could be seen in the hotel hallway or parking lot
also come from or are confirmed by the surveillance videos.

State v. Vargas
20230226-CA 	5 	2025 UT App 142
him. She then steadied herself with her hand against the wall and,
finally, followed him into the room.
¶9 	Once in the room, Kylee removed her jacket, fell onto the
bed, and “pass[ed] out.” About a minute later, Vargas left and
retrieved his motorcycle from the bar where he had left it, parking
it under the covered driveway outside the hotel’s entrance. The
time was 3:02 a.m.
¶10 	Sometime later that morning, Kylee began “coming in and
out of consciousness.” Her shirt and bra were around her neck,
and Vargas was “having sex with [her] or fingering [her] or doing
something”—Kylee later could “just remember pressure down
there” and that “stuff was happening.” She then lapsed back into
sleep or unconsciousness.
¶11 	The next time Kylee awoke, her bra and shirt were no
longer on her and Vargas “was behind [her], holding onto [her]
. . . stomach and [her] hips, having sex with [her].” “His penis was
in [her] vagina,” penetrating her from behind. When Kylee
realized 	what 	was 	happening, 	she 	“stopped 	him.” 	Vargas
responded, “Oh, get on top.” Kylee said, “No.” And Vargas
replied, “Come on, . . . let’s continue making love.” Kylee told
him, “No. We were having sex. We weren’t making love. You
were having sex with me. I was passed out. I was sleeping.”
Vargas suggested that they “call into work, make a day of it,” “just
lay in bed and have sex,” and then “go to brunch.” Kylee again
told him no and went into the bathroom to “clean[] [herself] up a
little bit.” She “felt more hung over than [she’d] ever felt in [her]
life.”
¶12 	While Kylee was in the bathroom, Vargas, who was sitting
in the bed, took his phone out and, without Kylee’s knowledge,
began recording a video. When Kylee exited the bathroom, he
recorded her as she walked naked in front of the bed—from the
bathroom on his left to the side of the bed on his right. He
continued to record as she picked her clothes up off the floor

State v. Vargas
20230226-CA 	6 	2025 UT App 142
beside the bed, turned her back to him, and began putting her
clothes on. Kylee never noticed that Vargas was recording her.
¶13 	Kylee then searched the hotel room for her phone and
wallet but could not find them. After Vargas dressed, Vargas and
Kylee left the room. The time was 7:40 a.m. Kylee paused outside
the room, looking both directions down the hallway, and said
something to Vargas while gesturing both directions, appearing
to be unsure of which way to go. Vargas began walking in the
direction of the hotel’s entrance. Kylee was still feeling “[s]ick”
and “nauseous” and was “having hot and cold sweats like [she]
was ready to puke again,” though she did not feel “as bad as the
night before.” Kylee “knew [she] was going to be late for work,”
and she worried that she “was going to get in trouble.”
¶14 	When the pair went outside, Kylee was confused to see
Vargas’s motorcycle at the hotel, and she asked him “how his bike
got back to the hotel.” He told her, “[R]emember last night you
were standing out here talking to some girl and having a smoke,
and I went and got my bike and brought it over.” Kylee replied,
“[N]o, you’re lying. That never happened. I never spoke to
anybody last night [and] you didn’t bring your bike over.” Kylee
then saw her phone and wallet sitting on the curb where she had
placed them the night before while waiting for Vargas to get a
room. She went and retrieved them, and Vargas started his
motorcycle. Vargas then “said that he [had forgotten] his shirt,”
and he went back to the room to get it. Vargas returned without
having found his shirt, but he soon discovered that “he had put it
in the saddle bag [of his motorcycle] already.”
¶15 	Vargas 	mounted 	his 	motorcycle, 	and 	Kylee 	came
alongside, preparing to get on behind him. Vargas put his arm
around Kylee’s waist and pulled her toward him to give her a kiss,
and she kissed him. She then got on the motorcycle, Vargas took
her to her car, and she drove herself home. As soon as she arrived,
Vargas called and told her that he had left his helmet in her car.

State v. Vargas
20230226-CA 	7 	2025 UT App 142
She texted him her address and left the helmet on the trunk of her
car so he could retrieve it. She then got ready and went to work.
¶16 	At work, Kylee told a coworker friend (Coworker) what
happened with Vargas. She explained that she had woken up
partially naked and had asked Vargas “if she’d had sex.” She told
Coworker that “she thought that they had sex, and she didn’t
consent to that.” Coworker told Kylee she “needed to call the cops
and report” the incident. Feeling “scared” and “ashamed that it
happened to [her],” Kylee did not call the police “right away.”
Four days later, however, after telling another coworker about the
incident and receiving the same advice, Kylee reported the assault
to the police.
The Investigation and Charges
¶17 	The first officer Kylee spoke to (Officer) advised her to get
a sexual assault examination, which she did the next day. During
the exam, Kylee gave the nurse (Nurse) a description of the
assault and the events leading up to it. Among other things, she
told Nurse that when she and Vargas arrived at the hotel room,
she “blacked out,” “falling kind of flat face first on the bed,” and
that the next thing she remembered was waking up and being
“pretty much . . . naked with [Vargas] on top of [her] and having
sex with [her].” She told Nurse that at one point later in the
morning, she reminded Vargas that she “couldn’t even walk” into
the hotel and that he “basically had to carry [her].”
¶18 	After 	Nurse’s 	examination, 	a 	detective 	(Detective)
interviewed Kylee. Kylee recounted the assault and the events
leading up to it. After interviewing Kylee, Detective collected
surveillance videos from the hotel and interviewed Vargas.
¶19 	During Detective’s interview of Vargas, Vargas described
his date with Kylee, including their meeting for dinner, going to
two bars, and getting a hotel room because he had been drinking
and was not going to drive. Vargas said that after they got into the

State v. Vargas
20230226-CA 	8 	2025 UT App 142
hotel room, he and Kylee “just fell asleep,” that after they woke
up later in the morning they “ma[de] out,” and that he then gave
Kylee a ride to her car. Detective informed Vargas that Kylee was
“alleging that a little more happened in the hotel room and that it
wasn’t necessarily consensual”—specifically, that “she woke up
to [Vargas] having sex with her with . . . all her clothes off.” Vargas
said, “No. No, that’s not true.” And he told Detective he had text
messages and a video to support his claim.
¶20 	Vargas then showed Detective a string of messages he and
Kylee had exchanged over the evening they went out, the next
day, and the few days following that. Among them was a message
from Vargas thanking Kylee for the date and one from her
responding, “Ya thanks.” Vargas explained that a couple days
later, he had seen that Kylee had posted online that she was
having car trouble. So he texted her again, saying, “Hi Beautiful,
What are you doing? What’s wrong with your car?” Kylee
responded, “I’m working and nothing you need to worry about.”
Vargas replied, “Ouch! Are you upset with me?” Kylee said, “Ya
I am.” Vargas asked, “Why?” And Kylee replied, “Because you
totally took advantage the other night and I’m not ok with it.”
After reviewing these texts with Detective, Vargas explained that
he “didn’t understand why” Kylee was upset because what
happened in the hotel room was “consensual.”
¶21 	Vargas then showed Detective the video he had recorded
of Kylee naked in the room. Vargas explained that he had been
“just basically . . . taking a video of the room” when Kylee came
out of the bathroom. As Vargas and Detective watched the video,
Vargas commented (regarding Kylee in the video), “She doesn’t
look like she’s upset with me at all.” He asserted that if someone
was “molested” as Kylee had claimed, “she wouldn’t just walk
out so casually like that.” Vargas then acknowledged that the two
of them “had intercourse.”

State v. Vargas
20230226-CA 	9 	2025 UT App 142
The Trial
¶22 	Vargas was charged with rape, and the case proceeded to
a jury trial. During opening statements, the prosecutor told the
jury about the text messages and video Vargas had shown to
Detective. He informed the jury that the State would show the
video during trial but that it had “blurred” the video “just to
protect [Kylee’s] privacy” because she did not “have any clothes
on” in the video.
¶23 	Following opening statements, Kylee, Coworker, Officer,
Detective, Nurse, Bartender, and a nurse practitioner “familiar
with the effects of alcohol upon individuals” each testified for the
State. Kylee testified about the date and the assault consistently
with the facts set forth above. Detective testified about his
interviews with Kylee and Vargas, and during his testimony, the
State introduced a video of the interview with Vargas. Coworker
and Nurse testified to the respective accounts of the assault that
Kylee had given them, as also described above. And Coworker
further testified about Kylee’s demeanor after the assault. She said
that when Kylee arrived at work that morning, she was not
herself—“very mumbly, very closed off,” “not confident”—and
that “[h]er posture was very shriveled down.” Coworker also
testified that for some time thereafter, Kylee “would have full
blown panic attack[s] at work,” “was not sleeping at all,” “became
a crier on a daily basis,” and “couldn’t stand to be in . . . confined
spaces.” The State’s other witnesses—Bartender and the nurse
practitioner—provided additional relevant testimony consistent
with the facts outlined above.
¶24 	During 	Kylee’s 	testimony, 	the 	State 	introduced 	two
surveillance videos from the hotel where she and Vargas had
stayed. One depicted Vargas and Kylee in the parking lot before
they entered the hotel, Vargas in the lobby getting a room, Vargas
helping Kylee up from the curb and walking with her into the
hotel, the two of them walking down the hallway to their room,

State v. Vargas
20230226-CA 	10 	2025 UT App 142
and Vargas leaving to retrieve his motorcycle. The other showed
Vargas and Kylee exiting their room later that morning and their
activity 	outside 	the 	hotel 	before 	riding 	away 	on 	Vargas’s
motorcycle. When this video was played, Kylee was asked to
explain why she gave Vargas a kiss before they rode away. She
said, “He grabbed me and was pulling me in, so I kissed him.”
The State also introduced, without objection, the video and text
messages Vargas had shown to Detective. Before showing the
video to the jury, the prosecutor stated, “I’m going to warn the
jury this is graphic, but we have blurred it”—in the version of the
video shown to the jury, Kylee’s naked body was blurred from the
neck down. That video was then played for the jury.
¶25 	On cross-examination, Counsel pressed Kylee on a number
of topics. He asked whether she told Nurse that Vargas had
“picked [her] up and carried [her] to the room.” Kylee responded,
“Well, my carry version’s different than everybody else’s, but
yes.” Counsel asked whether Kylee remembered telling Nurse
that when she woke up, Vargas “was on top of [her] having sex.”
Kylee could not remember saying that Vargas was on top of her.
Counsel then asked Kylee to confirm whether she had “actually
black[ed] out” or had “just [felt] really woozy.” Kylee said that
she had “[j]ust [felt] really woozy” but that she had blacked out
“[a]t the hotel” after “[falling] onto the bed.” Finally, after
obtaining Kylee’s acknowledgement that she told Officer that
when she woke up in the hotel room she “wanted to punch
[Vargas] in the face,” Counsel queried, “You were scared, you
were mad?” Kylee replied, “Yeah, because he kept trying to pull
me back into bed.”
¶26 	On 	redirect, 	the 	prosecutor 	followed 	up 	on 	Kylee’s
statement to Nurse that Vargas had carried her to the hotel room:
Q. 	[L]et’s talk a little bit about what “carry”
means. Like what did you mean by that?

State v. Vargas
20230226-CA 	11 	2025 UT App 142
A. 	Carry means helping me, assisting me, not
like physically carrying me.
Q. 	Okay, would dragging be a better word?
A. 	I’m not saying necessarily dragging, but I
couldn’t walk by myself straight.
Q. 	Okay, so when he’s holding your hand, why
is he holding your hand?
A. 	To help guide me.
Q. 	Okay, 	could 	you 	have 	walked 	straight
without him holding your hand?
A. 	No.
Q. 	As you were going to the hotel room?
A. 	I mean, I could have a little bit, but not
straight 	straight, 	no. 	I 	would 	have 	been
falling into the walls.
¶27 	The prosecutor also asked Kylee about her statement to
Nurse that she woke up with Vargas on top of her:
Q. 	So why would you have said “on top” to
[Nurse]?
A. 	I don’t know. Because part of it was on top
just a little bit because he was kind of—he
was behind me, but he was raised up on his
upper body holding onto me.
Q. 	When he was behind you . . . was any part of
his body on top of you?

State v. Vargas
20230226-CA 	12 	2025 UT App 142
A. 	Just his arms and like his shoulder part, that
I remember . . . .
Q. 	Okay, how was your body positioned?
A. 	I just remember being on my side turned a
little bit.
Q. 	Turned towards him or away from him?
A. 	Away from him.
¶28 	Following the testimony from its witnesses, the State
rested. The defense then rested without calling any witnesses.
The Verdict, Motion to Arrest Judgment, and Appeal
¶29 	The jury convicted Vargas of rape. Vargas then filed a
motion to arrest judgment, arguing that Kylee’s testimony was
inherently improbable under State v. Robbins, 2009 UT 23, 210 P.3d
288, 	and 	that 	without 	her 	testimony 	there 	was 	insufficient
evidence to support the verdict. The court denied that motion,
and Vargas timely appealed.
ISSUES AND STANDARDS OF REVIEW
¶30 	On appeal, Vargas asserts two ineffective assistance of
counsel claims. “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. Craft, 2017 UT App 87, ¶ 15, 397 P.3d 889 (cleaned up).
¶31 	Vargas also asserts that the district court erred when it
denied his motion to arrest judgment. We review for correctness
a district court’s grant or denial of a motion to arrest judgment.
See State v. Stricklan, 2020 UT 65, ¶ 30, 477 P.3d 1251.

State v. Vargas
20230226-CA 	13 	2025 UT App 142
ANALYSIS
I. Ineffective Assistance of Counsel
¶32 	Vargas asserts that Counsel provided ineffective assistance
in two ways: (1) by not offering into evidence an unaltered version
of the video Vargas recorded of Kylee in the hotel room and (2) by
not objecting to Kylee’s text message to Vargas stating, “[Y]ou
totally took advantage the other night and I’m not ok with it.” For
a claim of ineffective assistance of counsel, a defendant must show
both “that counsel’s performance was deficient” and “that the
deficient performance prejudiced the defense” by “depriv[ing]
the defendant of a fair trial.” Strickland v. Washington, 466 U.S. 668,
687 (1984). “Because failure to establish either prong of the test is
fatal to an ineffective assistance of counsel claim, we are free to
address [a defendant’s] claims under either prong.” Honie v. State,
2014 UT 19, ¶ 31, 342 P.3d 182. Here, we conclude that Vargas’s
first ineffective assistance claim fails because Counsel did not
perform deficiently and that his second claim fails because Vargas
has not shown that Counsel’s assertedly deficient performance
prejudiced Vargas’s defense. We address each claim in turn.
A. 	The Video of Kylee in the Hotel Room
¶33 	Vargas contends that Counsel performed deficiently by not
offering into evidence an unaltered version of the video Vargas
recorded of Kylee in the hotel room. To establish deficient
performance, 	“a 	defendant 	must 	show 	that 	counsel’s
representation 	fell 	below 	an 	objective 	standard 	of
reasonableness.” State v. Lee, 2014 UT App 4, ¶ 13, 318 P.3d 1164
(cleaned up). “In evaluating whether counsel was deficient, we
will not second-guess trial counsel’s legitimate strategic choices.
Rather, if there is a conceivable tactical basis for counsel’s actions,
the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound
trial strategy.” Id. ¶ 17 (cleaned up).

State v. Vargas
20230226-CA 	14 	2025 UT App 142
¶34 	Vargas’s claim of deficient performance relies on the
proposition that the only reasonable defense strategy under the
circumstances of this case was for Counsel to show the jury the
unaltered video of Kylee naked in the hotel room after the State
had already shown the jury a version of the video that blurred her
body. He asserts that only the unaltered version of the video
would have adequately undermined Kylee’s credibility because
(1) it showed “that [she] was comfortable enough in Vargas’s
presence (only minutes after the alleged rape) to walk around the
room completely naked,” conduct assertedly at odds with her
claimed lack of consent to sexual intercourse; (2) it showed that
Kylee, “while naked, turned her back on Vargas while putting her
clothes on” and “did not make any effort to hide herself or retreat
back in the bathroom, or even to cover herself up with a towel or
sheet,” suggesting she was not afraid of him as she had claimed;
and (3) it showed that, “even though her clothes were outside her
line of sight, she walked straight to them from the bathroom,”
assertedly “demonstrat[ing] that [she] knew exactly where her
clothes were,” contrary to her claim of having woken up naked
with no recollection of how or when her clothes were removed.
¶35 	The flaw in Vargas’s argument on this point is that even
the altered version of the video shows that Kylee walked around
the room naked; that she turned her back to Vargas to put her
clothes on, making no effort to hide, cover herself (other than with
her clothes), or retreat to the bathroom; and that she walked
straight to her clothes, even though they were outside her line of
sight as she exited the bathroom. Thus, reasonable counsel could
have decided that there was no need to offer the unaltered version
of the video to persuade the jury of these facts.
¶36 	Vargas 	insists, 	however, 	that 	showing 	the 	unaltered
version of the video was necessary for the jury to “[feel] the
impact” of Kylee being in front of Vargas “without any shame or
hesitancy, fully naked.” The “shock value,” “gut reaction,” or
“feeling” the jury would have experienced from seeing Kylee’s

State v. Vargas
20230226-CA 	15 	2025 UT App 142
unblurred nakedness, Vargas explained at oral argument, “would
have had . . . an impact on the jury’s decision” in a way that seeing
the altered version of the video would not. By analogy, Vargas
reasons, just as the horror of the Holocaust is brought home to
viewers more by seeing stark videos of its victims than by merely
hearing about the atrocities they suffered, the “reality” of Kylee’s
asserted lack of credibility would have been better brought home
to jurors who saw her starkly naked body than to jurors who
knew she was naked but saw her body blurred. This argument
suffers from multiple infirmities, particularly in the ineffective
assistance of counsel context.
¶37 	First, rule 403 of the Utah Rules of Evidence “allows for the
exclusion 	of 	otherwise 	relevant 	evidence 	if 	the 	evidence’s
probative value is substantially outweighed by a danger of unfair
prejudice.” State v. Herrera, 2025 UT App 1, ¶ 34, 563 P.3d 416
(cleaned up). “Unfair prejudice results . . . where the evidence has
an undue tendency to suggest decision upon an improper basis,”
and “an improper basis can include emotional decision-making.”
Id. (cleaned up). Thus, to the extent Vargas’s argument might be
construed as suggesting that Counsel was required to offer the
unaltered video solely for its “shock value” or the emotional “gut
reaction” or “feeling” it would have engendered, the argument is
not well taken. Reasonable counsel could have concluded that the
court would not have allowed the unaltered video to be admitted
for that purpose and, thus, not made a futile attempt to offer it on
that basis. See State v. Torres, 2018 UT App 113, ¶ 16, 427 P.3d 550
(“Because the decision not to pursue a futile motion is almost
always a sound trial strategy, counsel’s failure to make a motion
that 	would 	be 	futile 	if 	raised 	does 	not constitute 	deficient
performance.” (cleaned up)).
¶38 	Vargas asserts, however, that legitimate probative value of
the 	unaltered 	video 	is 	found 	in 	the 	fact 	that 	credibility
determinations are best made by factfinders who are able to
observe a witness’s demeanor. See generally Ashby v. State, 2023 UT

State v. Vargas
20230226-CA 	16 	2025 UT App 142
19, 	¶ 	72, 	535 	P.3d 	828 	(explaining 	that 	one 	who 	has 	an
“opportunity to observe firsthand a witness’s appearance . . .
[and] demeanor” is “in a superior position to assess credibility”
compared to one who is not (cleaned up)). He reasons that the
credibility of Kylee’s in-court assertions that she did not consent
to intercourse and was “scared” of Vargas after she awoke with
him that morning would have been best judged by jurors who
were able to see her demeanor that morning unobstructed by the
blurring of her body. But even if we credit the logic of Vargas’s
argument, we cannot ignore the countervailing considerations
Counsel would have had to grapple with.
¶39 	Specifically, the Utah Constitution provides that victims of
crimes have the right “[t]o be treated with fairness, respect, and
dignity, and to be free from harassment and abuse throughout the
criminal justice process.” Utah Const. art. 1, § 28(1)(a). To protect
that right, our legislature has directed that the State “shall ensure
that all victims and witnesses of crime are treated with dignity,
respect, courtesy, and sensitivity.” Utah Code § 77-37-1(1)(b). Rule
611 of the Utah Rules of Evidence therefore empowers courts to
“exercise 	reasonable 	control 	over 	the 	mode 	and 	order 	of
examining witnesses and presenting evidence so as to . . . protect
witnesses from harassment or undue embarrassment.” Utah R.
Evid. 	611(a)(3). 	And 	our 	caselaw 	further 	indicates 	that 	an
appropriate factor for a court to consider under rule 403 is the
danger the proposed evidence poses of unfair prejudice to the
victim through unwarranted invasion of the victim’s privacy. See
State v. Rallison, 2023 UT App 34, ¶ 26, 528 P.3d 1235 (“Evidence
may . . . cause unfair prejudice when it reveals intimate and
potentially embarrassing details about victims.” (cleaned up)).
Thus here, Counsel could have reasonably decided that it would
have been futile to ask the court to determine that the marginal
probative value of having the jury see Kylee’s body unblurred
was not overcome by her rights to respect and dignity and was
not substantially outweighed by the danger of unfair prejudice to
Kylee from the public exhibition of her nude body.

State v. Vargas
20230226-CA 	17 	2025 UT App 142
¶40 	Moreover, Counsel could have reasonably concluded that,
rather than aid Vargas’s defense, playing the unaltered video
would have backfired with the jury. Vargas was accused of raping
Kylee. His recording of her while she was naked and without her
consent had already worked an invasion of her privacy and
suggested a disregard for her autonomy. The prosecutor had
noted for the jury both the “graphic” nature of the video and the
State’s effort to “protect [Kylee’s] privacy.” And in the blurred
version of the video, the jury had already seen that Kylee walked
naked in front of Vargas; proceeded directly to her clothes, which
were lying out of her line of sight as she exited the bathroom; and
turned her back to him as she dressed. At that point, any
insistence by Counsel on showing the unaltered video might have
been 	viewed 	by 	jurors 	as 	an 	unnecessary 	and 	callous
revictimization of Kylee. And they might very well have viewed
Vargas more negatively as a result. Recognizing as much, Counsel
could have reasonably decided that any benefit to be gained by
showing the unaltered video was outweighed by the risks it
posed. Because Counsel thus had a conceivable tactical basis for
his actions, Vargas has not overcome the presumption that, under
the circumstances, Counsel’s conduct amounted to sound trial
strategy. See State v. Lee, 2014 UT App 4, ¶ 17, 318 P.3d 1164.
¶41 	Finally, Vargas seeks to foreclose the foregoing conclusion
by arguing that under State v. Salazar, 2022 UT App 38, 509 P.3d
198, Counsel was required to introduce the unaltered video
despite the risks it posed to Vargas’s defense. Vargas bases this
argument on our statement in Salazar—quoting Gregg v. State,
2012 UT 32, ¶ 30, 279 P.3d 396—that “where [a] conviction is not
strongly supported by the record and trial counsel fails to . . .
present evidence impacting the victim’s credibility,” ineffective
assistance of counsel has been shown. 2022 UT App 38, ¶ 43
(cleaned up). Vargas interprets this statement as creating a
brightline rule that applies in this case, requiring Counsel to put
on the evidence. We disagree for multiple reasons.

State v. Vargas
20230226-CA 	18 	2025 UT App 142
¶42 	First, Vargas mischaracterizes his conviction as not being
strongly supported by the record. We implicitly characterized the
conviction in Salazar as having not been strongly supported by the
record because (1) the alleged rape victim in that case “was the
only witness to the event” aside from her two alleged attackers;
(2) “[w]hile [she] was on the stand, she stated approximately 40
times that she did not remember specifics about the incident”; and
(3) she was “not able to keep her story . . . straight” as to whether
a soda she drank before the alleged assault “made her feel
strange” or “did not affect her in any way.” Id. ¶ 44. And in
Gregg—the case on which Salazar largely relied and in which the
only issue was whether the alleged victim had consented to
admitted sexual intercourse between her and the defendant—our
supreme court deemed the defendant’s rape conviction to have
been not strongly supported by the record because the alleged
victim’s 	testimony 	was 	“the 	only 	direct 	evidence 	of 	the
defendant’s guilt” and “[t]here was no independent physical
evidence that supported or contradicted [the alleged victim’s]
testimony.” 2012 UT 32, ¶¶ 3, 30.
¶43 	In contrast, although Kylee’s testimony was the only direct
evidence of her lack of consent due to intoxication and resulting
unconsciousness, that testimony was independently corroborated
by, among other things, Vargas’s own admissions to Detective
about drinking with Kylee for several hours at multiple bars; the
surveillance video showing her significant impairment just before
entering the hotel room; and the video Vargas took without
Kylee’s permission of her walking naked in the room, suggesting
his readiness to breach sexual boundaries when she was unaware.
For these reasons, we disagree with Vargas’s view that his
conviction was not strongly supported by the record.
¶44 	Additionally, even as to cases where the prosecution’s case
is not strongly supported, we do not read Salazar or Gregg as
announcing a per se rule requiring defense counsel to seek
admission of any evidence with the potential to undermine an

State v. Vargas
20230226-CA 	19 	2025 UT App 142
alleged victim’s credibility despite the fact that the evidence
might also undermine the defendant’s case. In both Salazar and
Gregg, the evidence that defense counsel failed to introduce,
resulting in their performance being deemed deficient, had no
apparent potential to harm the defendants’ cases. See Salazar, 2022
UT App 38, ¶¶ 22, 47, 50‒53; Gregg, 2012 UT 32, ¶¶ 25, 27. Indeed,
in Salazar, we essentially said as much. See 2022 UT App 38, ¶¶ 47,
52 	(explaining 	that 	the 	evidence 	defense 	counsel 	failed 	to
introduce would not have opened the door to the State calling a
rape-myth expert in rebuttal). Moreover, in Salazar, we cited with
approval State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350, for the
proposition 	that 	“when 	analyzing 	whether 	trial 	counsel’s
performance 	was 	unreasonable 	courts must 	consider 	all 	the
circumstances.” 2022 UT App 38, ¶ 45 (emphasis added) (cleaned
up). Thus, whatever principles may be gleaned from Salazar and
Gregg, they do not include a brightline rule requiring defense
counsel to seek admission of all evidence with the potential to
undermine an alleged victim’s credibility in cases where the
prosecution’s case is not strongly supported, even if the evidence
might also undermine the defendant’s case.
¶45 	For all of the foregoing reasons, we conclude that Counsel
did not perform deficiently by failing to insist on admitting an
unaltered version of the video Vargas took of Kylee naked in the
hotel room. And because Counsel did not perform deficiently,
Vargas’s first ineffective assistance claim fails.4
4. Vargas filed a motion under rule 23B of the Utah Rules of
Appellate Procedure requesting a remand to supplement the
record with the unaltered version of the video. Other than Kylee’s
unblurred nakedness, which we have already addressed, the only
thing the unaltered version of the video would apparently show
is that Vargas was masturbating while filming Kylee—something
that is also discreetly blurred in the version of the video shown to
(continued…)

State v. Vargas
20230226-CA 	20 	2025 UT App 142
B. 	Kylee’s Text Message to Vargas
¶46 	Vargas 	also 	claims 	that 	Counsel 	rendered 	ineffective
assistance by not objecting, on hearsay grounds, to the admission
of the text message Kylee sent to Vargas after the assault that said,
“[Y]ou totally took advantage the other night and I’m not ok with
it.” This ineffective assistance claim fails because, even if Counsel
performed deficiently by not objecting, Vargas has not persuaded
us that Counsel’s assertedly deficient performance prejudiced his
defense.
¶47 	To establish prejudice, Vargas “must show that there is a
reasonable probability that, but for Counsel’s unprofessional
errors, the result of the proceeding would have been different.”
State v. Meik, 2024 UT App 46, ¶ 33, 547 P.3d 878 (cleaned up), cert.
denied, 554 P.3d 923 (Utah 2024). “A reasonable probability is a
the jury. Vargas argues that Kylee’s willingness to walk naked in
front of him while he was masturbating, thereby “indicating a
desire to have continued sexual relations with her,” makes it
“even less likely that she would have turned her back on him [to
get dressed] if she was actually fearful of him.” Even if that
interpretation is a valid view of those facts (a question on which
we 	express 	no 	opinion), 	Counsel 	could 	have 	reasonably
concluded that under another valid view, showing the jury that
Vargas was masturbating while he filmed Kylee might have only
further inflamed the jury against him. For one thing, it would
have shown that he was not “just basically taking a video of the
room,” as he claimed. Further, it would have demonstrated that
he was focused more on his own sexual gratification than on
showing any concern for Kylee or her feelings. Accordingly, we
conclude 	that 	the 	additional 	evidence 	proffered 	as 	part 	of
Vargas’s 	rule 	23B 	motion 	could 	not 	support 	an 	ineffective
assistance claim, and we therefore deny the motion.

State v. Vargas
20230226-CA 	21 	2025 UT App 142
probability sufficient to undermine confidence in the outcome.”
Id. (cleaned up).
¶48 	Vargas bears the burden of persuasion on this issue. See
Utah Dep’t of Transp. v. Coalt, Inc., 2020 UT 58, ¶ 45, 472 P.3d 942
(“An appellant bears the burden of persuasion on appeal.”). Yet
his 	principal 	brief 	contains 	no 	argument 	or 	analysis 	even
attempting to demonstrate that there is a reasonable probability
that the trial would have yielded a more favorable result for
Vargas if the text message had not been admitted. And the
argument on this point in Vargas’s reply brief does not identify or
address any part of the substantial body of evidence aside from
the text message itself that supports the jury’s verdict. See generally
Gregg v. State, 2012 UT 32, ¶ 26, 279 P.3d 396 (explaining that
analysis of the prejudice prong of an ineffective assistance claim
requires consideration of “the totality of the evidence, taking into
account such factors as whether the errors affect the entire
evidentiary picture or have an isolated effect and how strongly
the 	verdict 	is 	supported 	by 	the 	record” 	(cleaned 	up)). 	We
therefore conclude that Vargas has failed to adequately brief this
prong of his ineffective assistance claim and, thus, that he has not
met his burden of persuasion. See State v. Wright, 2019 UT App 66,
¶ 46, 442 P.3d 1185 (“An appellant who fails to adequately brief
an issue will almost certainly fail to carry its burden of persuasion
on appeal.” (cleaned up)). For this reason, Vargas’s second
ineffective assistance claim fails.5
5. We observe that Vargas does not contest the admission of the
video of his interview with Detective, wherein Vargas can be seen
and heard explaining that Kylee sent him a message a few days
after the assault saying she was upset with him. Vargas can then
be heard saying that he did not understand why she was upset
with him because he believed that their intercourse had been
consensual. Where Vargas does not challenge the admission of
(continued…)

State v. Vargas
20230226-CA 	22 	2025 UT App 142
II. Sufficiency of the Evidence
¶49 	Vargas also asserts that there was insufficient evidence to
support his conviction because Kylee’s testimony was inherently
improbable under State v. Robbins, 2009 UT 23, 210 P.3d 288, and
that the district court therefore erred by denying his motion to
arrest judgment.6 We disagree.
¶50 	A district court “may arrest a jury verdict when the
evidence, viewed in the light most favorable to the verdict, is so
inconclusive or so inherently improbable as to an element of the
crime that reasonable minds must have entertained a reasonable
doubt as to that element.” State v. Bolson, 2007 UT App 268, ¶ 10,
167 P.3d 539 (cleaned up). “When a sufficiency of the evidence
challenge 	is based 	on 	the 	inherent 	improbability 	of 	certain
evidence, our analysis proceeds in two parts.” State v. Hughes,
2024 UT App 168, ¶ 28, 560 P.3d 188, cert. denied, 564 P.3d 957
(Utah 2025). Specifically,
this evidence, it is difficult to see how the separate admission of
the actual message explaining that Kylee was upset “[b]ecause
[he] totally took advantage [of her] the other night” prejudiced his
defense. See State v. Garcia, 2024 UT App 38, ¶ 39, 546 P.3d 900
(noting our longstanding “disinclination to find prejudice when
improperly admitted testimony is merely cumulative of other
properly admitted evidence”), cert. denied, 550 P.3d 997 (Utah
2024).
6. The State contends that Vargas failed to preserve his sufficiency
of the evidence claim. Because the merits of the claim can be easily
resolved in favor of the State, we do not address its preservation.
See State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (stating that
“if the merits of a claim can easily be resolved in favor of the party
asserting that the claim was not preserved, we readily may opt to do
so without addressing preservation”).

State v. Vargas
20230226-CA 	23 	2025 UT App 142
we first analyze the evidence that the defendant
claims 	is 	inherently 	improbable 	and 	determine
whether that evidence is of such poor quality that it
should be disregarded. If we determine that the
challenged evidence is inherently improbable, we
then determine whether sufficient evidence remains
under 	which 	a 	reasonable 	jury 	could 	have
convicted. On the other hand, if we determine that
the 	challenged 	evidence 	is 	not 	inherently
improbable, 	our 	sufficiency-of-the-evidence
analysis will include the challenged evidence.
Id. (cleaned up).
¶51 	“It 	is 	difficult 	to 	successfully 	establish 	an 	inherent
improbability 	claim 	on 	appeal,” 	and 	“labeling 	a 	witness’s
testimony as inherently improbable should be reserved for rare
cases.” Id. ¶ 32 (cleaned up). “This is because appellate courts
typically do not make credibility determinations, and typically
resolve any arguments about conflicts in the evidence in favor of
the jury verdict.” Id. (cleaned up).
¶52 	“When presented with an inherent improbability claim, we
consider the situation as a whole, including the context in which
the testimony was offered.” Id. ¶ 33 (cleaned up). “Testimony will
generally be disregarded only when no corroborating evidence
exists.” Id. (cleaned up). “The inherent improbability standard
generally is not satisfied by the mere existence of a conflict in the
evidence.” Id. (cleaned up). “Nor is this standard satisfied where
the appellant raises garden-variety credibility questions, such as
which 	witness 	to 	believe, 	or 	which 	version 	of 	a 	witness’s
conflicting account[s] to believe.” Id. (cleaned up).
¶53 	“There 	are 	three 	hallmarks 	of 	inherently 	improbable
testimony that courts have often considered in their analysis:
material 	inconsistencies, 	patent 	falsehoods, 	and 	lack 	of
corroborating evidence.” Id. ¶ 34 (cleaned up). “But while these

State v. Vargas
20230226-CA 	24 	2025 UT App 142
three hallmarks are beneficial, they are not controlling.” Id.
(cleaned up). “The ultimate question . . . is whether the testimony
of the witness runs so counter to human experience that it renders
the testimony inappropriate for consideration in sustaining a
finding of guilt.” Id. (cleaned up).
¶54 	Vargas claims that Kylee’s trial testimony bears all three
hallmarks of inherent improbability. We, however, see no lack of
corroboration, 	no 	patent 	falsehoods, 	and 	only 	the 	sort 	of
inconsistencies that raise garden-variety credibility questions
such as which among a witness’s conflicting accounts to believe.
We address each hallmark in turn.
A. 	Lack of Corroborating Evidence
¶55 	Vargas admitted in his interview with Detective that he
engaged in sexual intercourse with Kylee, thus corroborating her
account that intercourse occurred. The key issue in this case was
whether that intercourse was consensual. The jury was instructed
that the intercourse was without Kylee’s consent if she “expressed
lack of consent through words or conduct” or if Vargas “knew
[she] was unconscious, unaware that the act was occurring, or was
physically 	unable 	to 	resist.” 	Kylee 	testified 	that 	she 	was
unconscious or otherwise unaware that the intercourse was
occurring and that when she awoke, she stopped Vargas from
continuing.
¶56 	As 	already 	noted, 	see 	supra 	¶ 	43, 	Kylee’s 	testimony
regarding her lack of consent was corroborated by Vargas’s own
statements about drinking with her for several hours at multiple
bars 	and 	the 	surveillance 	video 	showing 	her 	significant
impairment just before she entered the hotel room. It was further
corroborated by, among other things, the surveillance video of the
two of them leaving the hotel room later in the morning, which
shows Kylee pausing, looking both directions down the hallway,
and 	saying 	something 	to 	Vargas 	while 	gesturing 	in 	both
directions before he begins walking, suggesting that she was

State v. Vargas
20230226-CA 	25 	2025 UT App 142
sufficiently unaware when she entered the room that she did not
know which way to go when she exited it.
¶57 	Additionally, Vargas’s knowledge of her unconsciousness
was corroborated by the video evidence of him helping Kylee to
the room. It was also corroborated by Vargas leaving the hotel
room to retrieve his motorcycle only one minute after he and
Kylee entered the room, conduct he would have known—but for
her immediately falling asleep or passing out—might very well
have alerted Kylee to the fact that his insistence on getting a room
because he was too drunk to drive was merely a pretext. And the
notion that Vargas would proceed with intercourse in the face of
Kylee’s 	unconsciousness 	was 	corroborated 	by 	Bartender’s
testimony of Vargas announcing—without Kylee’s knowledge
and before Vargas and Kylee had broached the topic—that the
two of them had a room across the street, as well as by Vargas’s
recording a video without Kylee’s permission of her walking
naked in the room, both of which suggest Vargas’s willingness to
ignore or make assumptions about Kylee’s consent to particular
conduct.
¶58 	Given 	the 	foregoing, 	Vargas’s 	assertion 	of 	a 	lack 	of
evidence corroborating Kylee’s testimony is plainly incorrect.
B. 	Patent Falsehoods
¶59 	Vargas asserts that Kylee’s testimony “that she was scared
of Vargas because he tried to pull her back into bed” was patently
false. In support of this assertion, he points to the evidence of
Kylee walking naked in front of him without making an effort to
hide, her kissing him before getting on his motorcycle, and her
failing to seek help or report the rape when he returned to the
hotel room to look for his shirt. The first problem with Vargas’s
argument is that it is unclear whether Kylee even testified that she
was scared of Vargas because he tried to pull her back into bed.
After obtaining Kylee’s acknowledgement that she told Officer
that after she awoke she “wanted to punch [Vargas] in the face,”

State v. Vargas
20230226-CA 	26 	2025 UT App 142
Counsel asked, “You were scared, you were mad?” Kylee replied,
“Yeah, because he kept trying to pull me back into bed.” That
reply did not clarify whether she was scared, mad, or both. And
because that lack of clarification left ambiguity as to whether
Kylee even asserted that she was scared, we cannot say that this
testimony was patently false.
¶60 	Moreover, “this court’s prior caselaw has reiterated that
rape victims display a diverse range of reactions to the harm they
suffered.” State v. Nunes, 2020 UT App 145, ¶ 30 n.12, 476 P.3d 172
(cleaned up). “Despite the persistence of certain cultural myths,
not all rape victims will immediately report the attack or have no
further interaction with their rapists.” Id. (cleaned up); see also
Martha R. Burt, Cultural Myths and Supports for Rape, 38 J.
Personality & Soc. Psych. 217, 217 (1980) (defining “rape myths”
as “prejudicial, stereotyped, or false beliefs about rape, rape
victims, and rapists”). Thus, even if Kylee did testify that she was
scared of Vargas, the assertion that such testimony was patently
false in light of her actions identified above is a mere perpetuation
of cultural myth, and we firmly reject it.
C. 	Material Inconsistencies
¶61 	Finally, 	Vargas 	asserts 	that 	Kylee’s 	testimony 	was
materially inconsistent in the following ways:
• 	her testimony “that she was so drunk that she had to be
carried is entirely at odds with the hotel surveillance video
that shows her walking the entire way under her own
power”;
• 	her testimony “that she was woozy is inconsistent with her
statement to [Nurse] that she actually blacked out” and
with her acknowledgement that she was “sober enough to
light a cigarette” when Vargas went into the hotel to get a
room;

State v. Vargas
20230226-CA 	27 	2025 UT App 142
• 	her testimony “that Vargas guided her through the hotel is
plainly at odds with her testimony that she took his hand
after he let go of her hand as well as with the video that
shows her voluntarily holding his hand”;
• 	her testimony “that she awoke lying on her side” is at odds
with her statement to Nurse “that Vargas was on top of her
having intercourse with her”; and
• 	her testimony that she awoke to Vargas having intercourse
with 	her 	is 	“inconsistent 	with 	[her] 	statement 	to
[Coworker] that she asked Vargas whether the two had
actually had sex.”7
These purported material inconsistencies do not render Kylee’s
testimony inherently improbable.
¶62 	For 	starters, 	we 	observe 	again 	that 	“testimony 	will
generally be disregarded only when no corroborating evidence
exists.” State v. Hughes, 2024 UT App 168, ¶ 33, 560 P.3d 188
(cleaned up), cert. denied, 564 P.3d 957 (Utah 2025). Thus, although
Vargas may have identified some inconsistencies in Kylee’s
testimony, the fact that the most salient parts of her testimony are
corroborated by other evidence prevents a conclusion that her
testimony as a whole was inherently improbable.
¶63 	Additionally, 	some 	of 	the 	purported 	inconsistencies
Vargas identifies are not actual inconsistencies when all of Kylee’s
testimony 	is 	viewed 	together. 	For 	example, 	although 	she
admitted telling Nurse that Vargas “carried [her]” to the hotel
room, she later explained that her “version[]” of “carry” was
7. In his list of purported material inconsistencies, Vargas also
includes the testimony, addressed above, that he claims was
patently false. For the same reasons that we concluded that
testimony was not patently false, we also conclude it was not
materially inconsistent.

State v. Vargas
20230226-CA 	28 	2025 UT App 142
“different than everybody else’s” and that what she really meant
was that he “help[ed]” or “assist[ed]” her, not that he “physically
carr[ied]” her. Likewise, her testimony that she was “woozy” was
not inconsistent with her testimony that she “blacked out”
because she explained that prior to arriving at the hotel room she
“[j]ust felt really woozy” but that she blacked out “[a]t the hotel”
after “[falling] onto the bed.”
¶64 	Finally, even the portions of Kylee’s testimony that were
inconsistent (such as her apparently conflicting assertions as to
whether Vargas was behind her or on top of her when she woke
up) raise only “garden-variety credibility questions”—namely, as
to which version of her conflicting accounts should be believed—
and, 	hence, 	they 	do 	not 	render 	her 	testimony 	inherently
improbable. Id. (cleaned up).
¶65 	In 	sum, 	because 	Kylee’s 	testimony 	does 	not 	lack
corroboration, contains no patent falsehoods, and includes only
the sort of inconsistencies that raise garden-variety credibility
questions, it was not inherently improbable. And because Vargas
does not contend that the evidence when it includes Kylee’s
testimony was insufficient to support his conviction, the district
court did not err in denying his motion to arrest judgment.
CONCLUSION
¶66 	We 	conclude 	that 	Vargas’s 	two 	claims 	of 	ineffective
assistance of counsel fail because, as to the first, he has not shown
that Counsel performed deficiently and, as to the second, he has
not 	shown 	that 	Counsel’s 	assertedly 	deficient 	performance
prejudiced his defense. Vargas has failed to meet his burden
under rule 23B of the Utah Rules of Appellate Procedure, and we
therefore deny his motion for remand under that rule. And
because we determine that Kylee’s testimony was not inherently
improbable, we conclude that the district court was correct in

State v. Vargas
20230226-CA 	29 	2025 UT App 142
denying Vargas’s motion to arrest judgment. Having rejected
each of Vargas’s claims on appeal, we affirm his conviction.
TENNEY, Judge (concurring, in which Judges Luthy and Oliver
joined):
¶67 	In the early days of the internet, attorney Mike Godwin
made an observation that has since been coined as “Godwin’s
law.” It posits that as “a discussion on the Internet grows longer,
the 	likelihood 	of 	a 	person’s 	being 	compared 	to Hitler or
another Nazi 	increases.”8 Godwin’s law is 	not 	meant 	to 	be
aspirational. If anything, I understand it to be suggesting that
such comparisons are usually (though perhaps not always) a sign
of weakness.
¶68 	As discussed above, Vargas’s first argument on appeal is
that his trial counsel should have asked the court to let him play
an unpixellated version of a video that Vargas surreptitiously
took of Kylee walking naked across the hotel room as she picked
up her clothes. In his opening brief, Vargas’s appellate counsel
analogized the jury’s purported need to see that video to the
“horror one feels at seeing raw video footage of starving Jews in
Nazi concentration camps.” (As explained in the lead opinion, his
point was that a person can only truly understand a thing by
seeing it, as opposed to hearing about it.) After the State suggested
in its responsive brief that this analogy was “patently offensive,”
appellate counsel didn’t ignore the matter or back down in his
reply brief. Instead, he defended the analogy and then repeated it
in even more descriptive and graphic form.
8. Godwin’s law, Wikipedia, https://simple.wikipedia.org/wiki/Go
dwin%27s_law [https://perma.cc/8RNW-D5LN].

State v. Vargas
20230226-CA 	30 	2025 UT App 142
¶69 	I share the State’s view that this analogy was inappropriate
in this case. And I note that both this court and other courts have
cautioned attorneys to avoid making analogies or comparisons to
Hitler, Nazis, or the Holocaust unless truly warranted. See State v.
Florreich, 2024 UT App 9, ¶ 98 n.13, 543 P.3d 795 (“A decision to
use Hitler as a reference point is one that is fraught with peril and
should be avoided in most any case.”), cert. denied, 547 P.3d 828
(Utah 2024); Peavler v. Denney, No. 05CV654, 2008 WL 4378435, at
*13 (E.D. Mo. Sept. 23, 2008) (suggesting that a prosecutor’s
arguments about Hitler and the Holocaust in an effort to describe
accomplice 	liability 	were 	“undoubtedly 	overzealous 	and
probably objectionable”); Owens-Corning Fiberglas Corp. v. Garrett,
682 	A.2d 	1143, 	1152 	(Md. 	App. 	Ct. 	1996) 	(“admonish[ing]
plaintiffs’ counsel for their repeated references to murder and
analogies to ‘Nazis’ and the ‘Holocaust,’” observing that “[s]uch
terms are unduly inflammatory” and “raise certain images and
specters 	which 	could 	be 	extremely 	upsetting 	and 	unfairly
influential to jurors who may have personal experience with the
persons and events behind the terms so carelessly tossed about in
the courtroom”); Petro v. Platkin, 277 A.3d 480, 501 (N.J. Super. Ct.
App. Div. 2022) (“reject[ing]” a party’s “reference and analogy to
the inhumane acts of Hitler and Nazi Germany as improper and
insensitive”); 	State 	v. 	Kaprosch, 	No. 	A-3216-17T4, 	2020 	WL
1081571, at *7 (N.J. Super. Ct. App. Div. Mar. 6, 2020) (stating “the
comments regarding Adolf Hitler by defense counsel and the
prosecutor were entirely inappropriate and had no place in this
trial”); State v. Schierman, 438 P.3d 1063, 1136 (Wash. 2018) (noting
that 	“courts 	overwhelmingly 	disapprove 	of 	a 	prosecutor’s
Holocaust analogy in closing argument”).
¶70 	For whatever it’s worth, I also thought the analogy in this
case was both distracting and unnecessary. “A picture is worth a
thousand words” is an easy enough concept to understand. And
while analogies are often an effective tool in legal writing, there
were any number of available options that didn’t involve graphic
descriptions of mass murder. From my vantage point, it would

State v. Vargas
20230226-CA 	31 	2025 UT App 142
seem to be the rarest of cases that would support the use of the
Holocaust or Nazis as an appropriate rhetorical reference point
for an analogy or a comparison. Attorneys who venture into such
territory anyway should know that they are running a real risk of
undermining the credibility of their own case with the intended
audience.
¶71 	Whether it be for reasons of restraint, respect, or just
outright strategy, I’d suggest that arguments such as this one
should almost always be avoided.