2022 UT App 112

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

HARLEY GREGORY WELSH,

Appellant.

Amended Opinion1

No. 20190833-CA

Filed August 29, 2022

Third District Court, Salt Lake Department

The Honorable Adam T. Mow

No. 181902848

Robert T. Denny, Attorney for Appellant

Sean D. Reyes and Jeffrey D. Mann, Attorneys

for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which 

JUDGE MICHELE M. CHRISTIANSEN FORSTER and JUSTICE DIANA 

HAGEN concurred.2

1. This Amended Opinion replaces the Opinion that was issued in 

case 20190833-CA issued on August 11, 2022. What was 

previously marked as footnote 6 (and which is now footnote 7) 

has been revised in response to Welsh’s petition for rehearing.

2. Justice Diana Hagen began her work on this case as a member 

of the Utah Court of Appeals. She became a member of the Utah 

Supreme Court thereafter and completed her work on the case 

sitting by special assignment as authorized by law. See generally

Utah R. Jud. Admin. 3-108(4).
State v. Welsh

20190833-CA 2 2022 UT App 112

TENNEY, Judge:

¶1 Harley Welsh broke into his ex-girlfriend’s (Victim) 

apartment, kicked down her bathroom door, and dragged her out 

of the room by her ankles. Victim’s roommate (Roommate) 

personally witnessed these events. A few hours later, Victim 

made several incriminating statements about Welsh while at a

hospital emergency room. And a few hours after that, Victim 

showed a police officer several texts that Welsh had allegedly sent 

her that night that contained incriminating information.

¶2 A jury later convicted Welsh of several crimes stemming 

from his attack on Victim. On appeal, Welsh argues that the 

district court should not have admitted either the text messages 

or the statements that Victim made at the hospital. For the reasons 

set forth below, we affirm.

BACKGROUND3

Welsh Breaks into Victim’s Apartment

¶3 On a late afternoon in October 2017, Roommate was at the

apartment she shared with Victim when she heard somebody 

walk loudly past her bedroom window. She then heard “banging” 

on her front door, so she went to the door and asked who it was.

The person banging did not respond, even after Roommate 

“asked 4 or 5 times.” A man on the other side of the door finally 

said, “Does it matter who it is?” Roommate responded, “Yes, 

because I’m not going to open the door unless you tell me who it 

is.” The man said that he was “Harley.” Roommate knew that 

Victim had dated a man named Harley Welsh, but she told the 

3. “On appeal, we review the record facts in a light most favorable 

to the jury’s verdict and recite the facts accordingly.” State v. 

Maese, 2010 UT App 106, n.2, 236 P.3d 155.
State v. Welsh

20190833-CA 3 2022 UT App 112

man at the door that Victim wasn’t there so that he would go 

away.

¶4 The man didn’t say anything in response. Instead, he 

smashed through the door, which “exploded inward” and 

“knocked” Roommate to the floor. Harley Welsh then entered the 

apartment.

¶5 Welsh was wearing gloves and had a tire iron in his hand.

He seemed “pissed off” and “[v]ery angry,” and he asked 

Roommate, “Where the fuck is [Victim]?” Roommate again told 

him that Victim wasn’t there.

¶6 But Victim was in the apartment, and after hearing the 

initial commotion, she had tried hiding in the bathroom by 

turning out the light and shutting the door most of the way. When 

Welsh began walking through the apartment, Victim pushed the 

door shut. Welsh realized that somebody was in the bathroom, so 

he “kicked the door” down.

¶7 Welsh then dragged Victim out of the bathroom by her 

ankles. As he did, Victim was “[k]icking and screaming,” telling 

Welsh, “I’m not going with you.” Welsh replied, “We’re leaving.”

When Victim implored him to “[c]alm down or somebody’s going 

to call the cops,” Welsh responded, “That’s okay. Let them call the 

cops because they’ll just show up to two bloody corpses.”

¶8 Welsh took a piece of cord from the living room, cut it up 

with his pocketknife, and asked Victim “if she wanted him to tie 

her up.” Victim said that she didn’t want him to tie her up and 

reiterated “that she wasn’t leaving with him.” Welsh then 

“attempted to tie her ankles,” and while he did, Victim told him, 

“No. Stop. You’re hurting me.”

¶9 Roommate witnessed all this from the floor where she had 

been lying since Welsh broke in. Roommate later testified that she 

thought Welsh was “going to smash [her] brains with a tire iron” 
State v. Welsh

20190833-CA 4 2022 UT App 112

and that she was “going to die.” She also explained that she made 

no attempts to protect Victim because she was afraid. Instead, as 

Welsh and Victim continued to struggle, Roommate crawled to 

her bedroom. Once there, she heard Welsh and Victim continue

to argue. Somewhere between fifteen to thirty minutes later, the 

apartment fell silent, and Roommate could tell that Welsh and 

Victim were now gone. At that point, Roommate felt “sick” and 

“freaked out.” But she didn’t call 911 because she was still afraid.

Victim and Welsh Arrive at the Emergency Room

¶10 Around 5:30 that evening, Victim arrived at the emergency 

room of a nearby hospital and was treated by an emergency 

physician (Doctor). A man was with Victim, and Doctor later 

identified that man as Welsh.

¶11 Victim’s medical chart indicated that she “registered to be 

seen for an ATV accident.” But Doctor thought that “her 

appearance and demeanor seemed different than . . . would [be] 

expected from someone that had recently been in an accident.” In 

particular, Doctor thought that Victim “seemed frightened” of 

Welsh, who was still “in the room with her.” The nurse (Nurse) 

who was helping Victim also thought that Victim “seemed scared 

and anxious.”

¶12 After initially giving “haltered and stuttered” answers to 

Doctor’s questions, Victim “declar[ed] that [Welsh] was not 

allowed to be there and that he needed to get out of the room.”

When hospital staff asked Welsh to leave, however, Welsh was 

“resistant and stayed seated. It required a repeated effort of verbal 

indication that he should leave the room.”

¶13 Welsh eventually left the room, after which Nurse took 

Victim to a different room to “do a more proper examination.” But 

while Nurse and Victim were in the new room, they found Welsh 

“hiding behind the door and behind the curtain.” When Victim 

saw him, she screamed and ran across the emergency department 
State v. Welsh

20190833-CA 5 2022 UT App 112

into another room. Welsh “claimed that he had every right to be 

in the room and that he didn’t have to leave.” The staff “got 

security involved” to get Welsh “out of the room,” and Nurse 

went to find Victim. Nurse found Victim hiding in an empty 

room. Victim “seemed scared” and “said she didn’t want [Welsh] 

anywhere near her.” Nurse then took Victim to a new room and 

registered her under a pseudonym.

¶14 Victim spoke with Doctor again in the new room, and she 

was now “more open in her response[s]” to his questions. She told 

him that she was there because Welsh “had been harming her,”

not because of an ATV accident. When Doctor asked for 

clarification, Victim “indicated that he had harmed her, grasping 

her by the throat and shaking her.” Victim also said, “[he] got 

ahold of me again” and “he had kidnapped me.”4

¶15 After examining Victim, Doctor concluded that she “hadn’t 

sustained a serious injury” and that there wasn’t “any marking or 

bruising, signs of any fractures, or significant injuries at the time.”

Based on Victim’s claims and Welsh’s “demeanor,” however, 

Doctor diagnosed Victim with “domestic abuse of adult” and 

“post traumatic stress disorder.”

Welsh Returns to the Apartment

¶16 Sometime later that night, Welsh went back to Victim’s 

apartment. He told Roommate that he was there to get Victim’s 

clothing, but Roommate “told him he couldn’t have it and that he 

wasn’t welcome in [her] house.” Welsh then asked Roommate 

“whose stuff was in the living room.” Roommate responded that 

4. There was some discrepancy in the testimony at trial about 

whether Welsh left before or after the conversation between 

Victim and Doctor described above. Regardless, Doctor and 

Nurse agreed that Welsh was in and out of various rooms in the 

hospital and that Welsh left only after security became involved.
State v. Welsh

20190833-CA 6 2022 UT App 112

the stuff belonged to Victim’s brother (Brother), who also lived in 

the apartment.

¶17 After Welsh left, Brother arrived and noticed the front door 

was kicked in. Roommate “was in hysterics, freaking out, crying,”

and she kept saying to Brother, “He took your sister. He took your 

sister.” Brother “immediately” knew that Roommate was talking 

about Welsh. When Brother walked through the apartment, he 

saw that the bathroom was “ransacked” and that the bathroom 

door was “broken completely off the hinges.” To Brother, the 

apartment looked “terrorized” and like “a mess.”

¶18 Brother called 911, and as he was talking to the emergency 

operator, he went out to the apartment’s balcony. While there, he 

saw “Welsh not even 30 yards away.” Brother and Welsh locked 

eyes as the police came “around the corner,” at which point Welsh

“proceeded to take off.”

Investigation and Text Messages

¶19 One of the responding officers (Officer) took photographs

of what he found in the apartment. These included photographs

of the splintered front door frame; the front door’s strike plate,

which was lying on the floor; the bathroom door, which was 

broken off its hinges; a cut-up cord on the living room floor; and

a black glove lying near the cut-up cord, which Roommate later 

identified as one of the gloves that Welsh was wearing when he 

broke into the apartment.

¶20 After photographing the scene, Officer spoke with Victim 

on the phone. At this point, Victim had left the hospital and was 

now at a friend’s apartment. Later that night, Officer went and 

interviewed Victim in person. When he met her, Officer thought 

that Victim seemed “scared and paranoid.” Officer also noticed 

some redness on Victim’s neck and an injury on one of her hands.

Although these injuries “were not overwhelming,” they 

“appear[ed] to be fresh,” so Officer photographed them.
State v. Welsh

20190833-CA 7 2022 UT App 112

¶21 During the interview, Victim showed Officer a series of text 

messages on her phone. They were sent from someone who was 

identified as “Harleyy” in her contacts, and there was a phone 

number linked to that contact. A timestamp indicated that Victim 

had received the first text at 9:08 p.m. that night, and one of the 

later texts had a timestamp of 9:20 p.m. Officer took photographs 

of those texts, and he later testified that he took the photographs 

at 9:27 p.m.

¶22 Those text messages, without alteration, read as follows:

• “So you reported me to the police now? And now there 

looking for me.”

• “Am I right”

• “Liar your brother isn’t in orem”

• “DID U CALL THE COPS AND REPORT ME? YES OR 

NO?”

• “WHEN WE BOTH AGREE ON THINGS AND GET 

BACK TO LIVING A REAL LIFE”

• “I DO TRULY LOVE YOU AND I JUST WANTED MY 

WIFE AND NOW THIS AGAIN. I JUST WANTED YOU 

TO HOLD ME TIGHTLY AND SAY THINGS WILL GET 

BETTER”

• “I KNOW YOU WERE HOME AND THE COPS WERE 

THERE LOOKING. SO DID YOU FILE CHARGES ON ME 

AND WHAT KIND DID YOU PRESS AGAINST ME? IF 

YOUR RE”

• “PORTING THESE THEN THAT’S GOOD YOU GROW A 

BIGGER PAIR. AND THAT’S WHY I TRULY LOVE YOU.”
State v. Welsh

20190833-CA 8 2022 UT App 112

• “Yes or No”

• “Just ignore me like you’ve done our whole relationship.”

• “to put your hands on me and lie to the cops about me 

doing whatever your herion high conjured up.”

• “So stop hiding from the fact that you caused all this due 

to. Yes your herion addiction. So dont say its all me. And 

Im sorry you had”

• “And just so it states that you initiated all that you have 

said against me and your judgment is impaired all day and 

evening”

¶23 After Victim showed Officer these messages, Officer 

searched for Welsh’s name in the police department’s database. In 

that database, Officer found a file on Welsh that included a contact 

phone number. That phone number matched the phone number 

that had sent the text messages to Victim’s phone.

Trial

¶24 The State charged Welsh with aggravated kidnapping;

aggravated burglary; violation of a sentencing protective order;

retaliation against a witness, victim, or informant; criminal 

mischief; and assault.

¶25 The case later went to trial, and the State called Roommate, 

Brother, Officer, Nurse, and Doctor as witnesses. The witnesses 

testified about the events as described above. Victim did not 

testify.

¶26 The district court made two evidentiary rulings that are 

central to this appeal. The first concerned the text messages that 

Welsh allegedly sent Victim after the attack. Before trial, the 

prosecutor filed a motion in limine asking to admit Officer’s 
State v. Welsh

20190833-CA 9 2022 UT App 112

photographs of those messages. The prosecutor argued that 

although Victim would not testify, Officer could authenticate the 

messages by testifying that he took the photographs and 

describing the surrounding circumstances. In response, Welsh’s 

trial counsel (Trial Counsel) argued that Officer could not 

authenticate the texts because his knowledge of the messages was 

based on hearsay from Victim.

¶27 The court deferred ruling on this issue until it could hear 

Officer’s testimony. At trial, Officer explained how he matched

the phone number for the “Harleyy” contact on Victim’s phone to 

the phone number listed for Welsh in the police database. At that 

point, the court allowed Trial Counsel to voir dire Officer. During 

voir dire, Officer explained that “[a]ll officers” in his department 

have access to the database and can “edit things and remove 

things.” Trial Counsel then argued to the court that the text 

messages could not “be authenticated under the rules of 

evidence” because “there is no keeper of the records.”

¶28 The court overruled Trial Counsel’s authentication 

objection, and it did so based on Officer’s testimony about “how 

he had linked the number on the text message[s] with Mr. Welsh.”

Based on this authentication, the court then admitted the 

messages over the hearsay objection, concluding that they 

qualified as “a statement of the opposing party.” See Utah R. Evid. 

901; see also id. R. 801(d)(2).

¶29 The second ruling concerned the admissibility of the 

statements that Victim made to Doctor while at the emergency 

room. Before trial, the prosecutor moved to admit those 

statements. Trial Counsel then conceded that Victim’s statements 

that Welsh “grabbed her by the neck” and “shook her” were 

admissible, but Trial Counsel objected to admission of the 

statements that “[he] got ahold of me again” and “he had 

kidnapped me.” In response, the prosecutor argued that these 

statements were admissible through the medical diagnosis or 

treatment exception to the rule against hearsay. See id. R. 803(4).
State v. Welsh

20190833-CA 10 2022 UT App 112

¶30 The court ruled that both statements were admissible

under this exception. With respect to the statement that “[he] got 

ahold of me again,” the court ruled that this “seem[ed] to relate to 

the later report from [Victim] that she was grabbed by the neck 

and shook.” And with respect to the statement that “he had 

kidnapped me,” the court ruled that this fit the exception because 

it gave “context to how the other injuries were perhaps sustained 

and that there may have been some violent action in the process 

of kidnapping that would help to explain the nature of those 

injuries or illnesses.”

¶31 At the close of trial, the jury acquitted Welsh of aggravated 

kidnapping, but it found him guilty on all other charges. After the 

court sentenced Welsh to prison terms for the offenses, Welsh 

timely appealed.

ISSUES AND STANDARDS OF REVIEW

¶32 Welsh raises two issues on appeal.

¶33 First, Welsh challenges the district court’s determination 

that there was sufficient evidence to authenticate the text 

messages that he allegedly sent to Victim. We review this 

determination for an abuse of discretion. See State v. Otkovic, 2014 

UT App 58, ¶ 12, 322 P.3d 746.

¶34 Second, Welsh challenges the court’s decision to admit 

statements that Victim made to Doctor under the medical 

diagnosis exception to the hearsay rule. “When reviewing rulings 

on hearsay evidence, we review legal questions regarding 

admissibility for correctness, questions of fact for clear error, and 

the trial court’s final ruling on admissibility for abuse of 

discretion.” State v. Guzman, 2018 UT App 93, ¶ 10, 427 P.3d 401.
State v. Welsh

20190833-CA 11 2022 UT App 112

ANALYSIS

I. Authentication of the Text Messages

¶35 The district court determined that the State had sufficiently 

authenticated the text messages that Welsh allegedly sent to 

Victim on the night of the attack. Welsh now argues that this 

authentication determination was an abuse of discretion. We 

disagree.

5

¶36 The proponent of “writings or other documentary 

evidence” must authenticate the evidence before it can be 

admitted. State v. Jacques, 924 P.2d 898, 900–01 (Utah Ct. App. 

1996). “To satisfy the requirement of authenticating or identifying 

an item of evidence, the proponent must produce evidence 

sufficient to support a finding that the item is what the proponent 

claims it is.” Utah R. Evid. 901(a). Notably, “proper authentication 

does not require conclusive proof,” State v. Wager, 2016 UT App 

97, ¶ 12, 372 P.3d 91 (quotation simplified), and the proponent has 

to make only “a prima facie showing of authenticity,” State v. 

Otkovic, 2014 UT App 58, ¶ 23, 322 P.3d 746.

¶37 The “process of authentication must be distinguished from 

a finding of authenticity.” Jacques, 924 P.2d at 901. The district 

court is responsible for the “process of authentication,” whereby

it “assess[es] whether there is evidence sufficient to support a jury 

finding of authenticity.” Id. (quotation simplified). But “the jury is 

ultimately responsible for determining whether the evidence is in 

fact authentic once the evidence is admitted.” Id.

¶38 Rule 901 of the Utah Rules of Evidence provides a nonexhaustive list of “examples” of the kinds of evidence that can 

5. Based on the authentication ruling at issue, the district court 

admitted the texts as nonhearsay statements under rule 801(d)(2) 

of the Utah Rules of Evidence. Welsh does not separately 

challenge the application of that rule to these text messages.
State v. Welsh

20190833-CA 12 2022 UT App 112

“satisf[y]” the authenticity requirement. See Utah R. Evid. 901(b). 

This list includes “[t]estimony that an item is what it is claimed to 

be.” Id. R. 901(b)(1). It also includes the “appearance, contents, 

substance, internal patterns, or other distinctive characteristics of 

the item, taken together with all the circumstances.” Id. R. 

901(b)(4).

¶39 Our decision in Otkovic is illustrative. There, we affirmed a 

district court’s determination that the State had presented 

sufficient evidence to support a finding that certain text messages 

were sent by the defendant. Otkovic, 2014 UT App 58, ¶¶ 21–23. 

This included evidence showing that the texts in question “were 

sent from the phone number assigned to” a phone found in the 

defendant’s apartment, that this same phone matched a witness’s 

“description of the phone he saw” the defendant use during the 

crime, and that the crime “occurred during the same time frame 

when the text messages were sent.” Id. ¶ 23. While acknowledging 

that there was some contrary evidence suggesting that somebody 

else had used the phone during the relevant time, we nevertheless 

determined that the contrary evidence went “to the weight of the 

evidence, not its admissibility.” Id. We accordingly held that the 

district “court did not exceed its discretion in determining that the 

evidence was sufficient to authenticate the text messages.” Id.

¶40 Here, Officer testified that the photographs of the texts

accurately represented the texts that he saw on Victim’s phone. 

See Utah R. Evid. 901(b)(1). Welsh does not challenge that 

assertion on appeal. Rather, Welsh contends that the “appearance, 

contents, substance, internal patterns, or other distinctive 

characteristics” of those texts, “taken together with all the 

circumstances,” were insufficient to show that he was the one who 

authored the texts. See id. R. 901(b)(4).

¶41 We disagree. Contrary to Welsh’s assertion, the State did 

present several pieces of evidence that, when combined, were 

sufficient to support a finding that Welsh authored the texts.
State v. Welsh

20190833-CA 13 2022 UT App 112

¶42 First, Roommate testified that Victim had previously dated 

Welsh, and Officer testified that these text messages were received 

by Victim on her phone and came from a person who was labeled 

in her contacts as “Harleyy” (which is, of course, Welsh’s first 

name with an extra “y”).6

¶43 Second, the phone number that sent the texts was listed as 

“one of [Welsh’s] contact phone numbers” in a police database.7

6. Welsh argues that Victim’s statement to Officer that the phone 

was hers was inadmissible hearsay. As the State correctly points 

out, however, this argument is unpreserved. While Welsh pointed 

to several places below where he argued that Officer didn’t have 

personal knowledge that Welsh sent the text messages, he points 

to no place in the record (and we see none) where he separately 

argued that Officer could not testify that Victim told him that the 

phone was hers. Because of this, the argument is unpreserved. 

And because Welsh does not argue that a preservation exception 

applies, we do not address this argument. See State v. Johnson, 2017 

UT 76, ¶ 15, 416 P.3d 443.

7. In his opening brief, Welsh asserts that Officer’s “testimony 

that he matched the number on the phone with a Murray City 

Database is based on double-hearsay not subject to any 

exception.” But Welsh never identifies the two steps involved in 

the alleged double hearsay, nor does he provide us with any 

argument or developed authority supporting his view that this 

was double hearsay. As a result, any argument that turns on 

double hearsay is inadequately briefed, and we accordingly 

decline to address it. See Utah R. App. P. 24(a)(8); State v. 

Drommond, 2020 UT 50, ¶ 134, 469 P.3d 1056. We reach the same 

result even if his argument is construed as a single hearsay 

argument. In the relevant passage from Welsh’s opening brief, 

Welsh capably briefed an argument about why, in his view, the 

texts were not supported by enough corroborating information to 

(continued...)
State v. Welsh

20190833-CA 14 2022 UT App 112

¶44 Third, the timing and content of the messages supported a 

finding that Welsh sent them. As noted, Welsh and Victim had 

previously had a romantic relationship, but their relationship had 

since ended. Then, just a few hours before these texts were sent, 

Welsh broke into Victim’s apartment and tried to tie her up. And 

later that evening, after Welsh was separated from Victim at the 

hospital, Brother saw Welsh standing outside Victim’s apartment,

at which point Welsh “[took] off” when police came “around the 

corner.”

¶45 The texts sent by “Harleyy” to Victim tracked these events. 

In those messages, the sender expressed his love for Victim and 

referred to “our whole relationship.” The sender accused Victim 

of reporting him to police and claimed to know that “the cops” 

were now at her home “looking” for him. And the sender also 

called Victim a “[l]iar” because her “brother” wasn’t in Orem. The 

texts thus communicated information that was particular to both 

Victim’s relationship with Welsh and to things that had happened 

that evening involving Welsh. These corroborative circumstances 

supported a finding that Welsh had sent the texts.

¶46 Welsh nevertheless advances two main arguments for why 

the texts should not have been admitted. First, he argues that the 

court erred in admitting the texts because “the State did not have 

any witness with personal knowledge who could corroborate that 

have been properly authenticated. Amidst that argument, Welsh 

included a paragraph about the purported unreliability of the 

police database; and in the middle of that paragraph, Welsh made 

a single-sentence assertion that, “without more, the information 

contained within this database is inadmissible hearsay.” This 

sentence was supported by a single citation that directed us to 

rules 801 and 803 of the Utah Rules of Evidence. But Welsh 

provided no further argument or explanation about why the 

information within the database was hearsay to begin with, nor 

did he support such an argument with developed authority. We 

therefore decline to address it.
State v. Welsh

20190833-CA 15 2022 UT App 112

the text messages were sent from Welsh’s number or that he was 

in possession of the phone associated with that number when they 

were sent.” But as noted, personal knowledge is not the only way 

to authenticate evidence. See Utah R. Evid. 901(b). Instead, the rule 

itself lists the “appearance, contents, substance, internal patterns, 

or other distinctive characteristics” of an item as a separate means 

of authentication. Id. R. 901(b)(4).

¶47 Second, Welsh points to several potential deficiencies in 

the evidence. For example, he notes that while Officer 

photographed the texts, Officer did not have personal knowledge 

that Welsh was the sender. Welsh suggests that although the 

sender was “concerned about being reported to the police,” there 

could have been other people associated with Victim who were 

worried about being reported to police. Welsh points out that the 

sender referred to Victim as “my wife,” even though there was no 

evidence presented at trial that Victim and Welsh were ever 

married. He also points out that there was no evidence “in the 

record indicating that Brother had any connection to Orem or that 

[Victim] had told Welsh her brother was in Orem.” And finally, 

Welsh contends that “it is impossible to know whether [the texts] 

were altered in any way or whether any messages were deleted” 

before Officer saw them.

¶48 These are all fair arguments, but they ultimately go “to the 

weight of the evidence, not its admissibility.” Otkovic, 2014 UT 

App 58, ¶ 23. While a jury could have accepted them and 

concluded that the texts were not “in fact authentic,” Wager, 2016 

UT App 97, ¶ 12 (quotation simplified), the jury also could have 

accepted the State-favorable evidence recounted above and 

concluded that Welsh did send them.

¶49 What ultimately matters in this appeal is the question that 

was before the district court—the authentication of the text 

messages. Again, the court was responsible for the initial “process 

of authentication,” whereby it was tasked with determining 

“whether there [was] evidence sufficient to support a jury finding 
State v. Welsh

20190833-CA 16 2022 UT App 112

of authenticity.” Jacques, 924 P.2d at 901 (quotation simplified). On 

that, we agree with the court that the State presented “evidence 

sufficient to support a finding that” the text messages were sent 

by Welsh. See Utah R. Evid. 901(a). The court therefore did not 

abuse its discretion when it determined that the texts were 

properly authenticated.

II. Hearsay

¶50 Over Trial Counsel’s objection, the district court allowed 

Doctor to repeat two of Victim’s statements: “[he] got hold of me 

again” and “he had kidnapped me.” The court agreed that the 

statements were hearsay, but it nevertheless admitted them under 

the exception for statements made for medical diagnosis or 

treatment. See Utah R. Evid. 803(4).

¶51 Welsh now challenges this ruling, arguing that the 

statements did not qualify under this exception because Victim 

did not make them “with an intent to facilitate medical diagnosis 

or treatment.” But to obtain reversal, Welsh must show that he 

was prejudiced. See Utah R. Crim. P. 30(a). This requires a 

determination that, “absent the error, there was a reasonable 

likelihood of a result more favorable to the accused.” State v. Bell, 

770 P.2d 100, 106 (Utah 1988). Here, we need not decide whether 

the statements at issue qualified under the hearsay exception in 

question because we conclude that any error in admitting them 

was harmless. See, e.g., State v. Clark, 2016 UT App 120, ¶ 15, 376 

P.3d 1089.

¶52 A prejudice analysis like this one “is counterfactual.” State 

v. Ellis, 2018 UT 2, ¶ 42, 417 P.3d 86. “To decide whether a trial 

affected by [alleged] error is reasonably likely to have turned out 

differently we have to consider a hypothetical—an alternative 

universe in which the trial went off without the [alleged] error.” 

Id. The counterfactual analysis in this case thus requires us to 

consider what Welsh’s trial would have looked like if Doctor had 

not testified that Victim told him that Welsh “got hold of me 
State v. Welsh

20190833-CA 17 2022 UT App 112

again” and “had kidnapped me.” We conclude that, even without 

those statements, there’s no reasonable likelihood that there 

would have been a result more favorable to Welsh.

¶53 First, the jury would have still heard Roommate’s firsthand 

account of what she saw when Welsh broke into the apartment.

Again, Roommate testified that Welsh broke through the front 

door with sufficient force to knock her over and that he then 

entered with a tire iron in his gloved hand. She testified that 

Welsh walked through the apartment looking for Victim, and that 

when Welsh realized that Victim was hiding in the bathroom, he 

broke that door down too. She testified that she saw Welsh drag

Victim out of the bathroom “[b]y her ankles” while Victim was 

“[k]icking and screaming.” She testified that she saw Welsh cut 

up a cord and try to tie Victim’s ankles, and she further testified 

that she heard Welsh say that if police were called, they would 

“show up to two bloody corpses.”

¶54 Second, the jury would have still seen Officer’s 

photographs of the apartment. Of note, these photographs

showed the apartment’s two broken doors, a cut-up cord, and a 

black glove, thus corroborating significant details from 

Roommate’s account.

¶55 Third, the jury would also have still heard Nurse’s and 

Doctor’s descriptions of Victim’s demeanor at the hospital, 

including their observations that Victim seemed “scared,” 

“frightened,” and “anxious.” The jury would have heard that after 

Victim arrived at the emergency room, Victim “declar[ed]” that 

Welsh needed to leave. Nurse would have still testified that Welsh 

initially resisted leaving and that after Victim was moved to 

another room, they found Welsh hiding behind a curtain. Nurse 

would have still testified that Victim “screamed” when she saw 

Welsh and that security had to get Welsh “out of the room.” The 

jury would have also heard how Victim was checked into a new 

room under a false name and that Victim “indicated that [Welsh] 
State v. Welsh

20190833-CA 18 2022 UT App 112

had harmed her, grasping her by the throat and shaking her.”8

And the jury would have known that Doctor diagnosed Victim 

with “domestic abuse of adult” and “post traumatic stress 

disorder.”

¶56 Fourth, the jury would have still heard Brother’s testimony 

that when he arrived at the apartment later that night, Roommate 

was “in hysterics.” And it would have heard Brother’s testimony 

that he saw Welsh standing outside the apartment and “take off” 

when police came “around the corner.”

¶57 Fifth, the jury would have still seen the photographs that 

Officer took of Victim’s injuries.

¶58 And sixth, the jury would have still seen the text messages 

that Victim received from “Harleyy.” As explained above, the 

State presented evidence sufficient to support a finding that those 

texts were sent by Welsh. And as also explained, those texts 

communicated information that was particular to both Victim’s 

relationship with Welsh and to things that had happened that 

evening involving Welsh, and they further expressed concern

from the sender about criminal charges.9

¶59 In a hypothetical trial in which the State was not permitted 

to use the challenged statements, all this evidence would still have

been before the jury. Given the strength of this evidence, we see 

no reasonable likelihood that there would have been a more 

8. Trial Counsel conceded that this particular statement was 

admissible under rule 803(4) of the Utah Rules of Evidence.

9. We’ve concluded that the texts were properly authenticated, so 

we’ve included them in this prejudice analysis. Even if there were 

some error in admitting the texts, however, we would still readily 

conclude that Welsh was not prejudiced by either their admission 

or the admission of the alleged hearsay because of the strength of 

the other evidence recounted in this opinion.
State v. Welsh

20190833-CA 19 2022 UT App 112

favorable result for Welsh had the jury not heard the challenged

statements.

¶60 Welsh nevertheless responds on several fronts. First, he 

argues that the statement “he had kidnapped me” was 

particularly problematic given the criminal connotations 

associated with the term “kidnap.” But he suffered no prejudice 

as a result of this accusation because the jury acquitted Welsh of 

the aggravated kidnapping charge. Even so, Welsh nonetheless 

argues that there is at least a “reasonable likelihood” that Victim’s 

“colloquial use of the phrase ‘kidnap’ . . . prompted the jury to 

convict Welsh on the other charges.” But given the strength of the 

other evidence, we still see no reasonable probability that the jury 

would have reached a different result on those charges without 

this statement.

¶61 Welsh also argues that “the statement that Welsh ‘got 

ahold of [her] again,’ is vague and ambiguous” and that “there is 

a reasonable likelihood the jury inferred that similar incidents had 

occurred in the past.” But the contention that Victim’s statement 

was “vague and ambiguous” cuts both ways—if the jury was 

indeed uncertain about what this meant, it seems just as likely that 

the jury would have assigned little weight to that statement.

¶62 Welsh further contends that Victim’s statements made 

Roommate’s story more believable and that there is a “reasonable 

likelihood” that the jury would not have believed Roommate’s 

account without these statements. In support, Welsh points to 

alleged problems with Roommate’s testimony. For example, he 

points out that the prosecutor referred to Roommate as “not a 

superwoman” and “not a great speaker.” But regardless of 

whether Roommate was or was not a great speaker, she was a 

firsthand witness of the attack, and because Roommate testified 

at trial, the jury was in an advantaged position to directly evaluate 

her credibility. Moreover, Victim’s statements to Doctor would 

not have been the most natural source of corroboration for 

Roommate’s testimony anyway. Rather, Officer’s photographs of 
State v. Welsh

20190833-CA 20 2022 UT App 112

what he found at the apartment and Brother’s testimony about the 

same scene were direct corroboration for many of her claims. 

Because of this, we don’t see any probability that the perceived 

veracity of Roommate’s account hinged on the statements that 

Victim later made at the hospital.

¶63 In short, even without the challenged statements, the jury 

would have heard a firsthand account of Welsh breaking into the 

apartment, dragging Victim out of the bathroom by her ankles, 

and attempting to tie her up, and it would have seen photographs 

corroborating that account. The jury would have heard how 

Victim showed up at a hospital a few hours later, scared and 

nervous, and also how Victim had to be hidden from Welsh at the 

hospital after he tried following her. And it would also have seen 

texts that she received from a person that seemed to be Welsh and 

that seemed to line up with the very events in question. In light of 

all this, we see no “reasonable likelihood” that Welsh would have 

received a different result without the challenged statements. Bell, 

770 P.2d at 106. We therefore conclude that Welsh was not 

prejudiced by any error in admitting them.10

CONCLUSION

¶64 The district court did not abuse its discretion when it 

determined that the State presented sufficient evidence to support 

a finding that Welsh authored the text messages. Welsh also has 

not shown that he was prejudiced by the admission of Victim’s 

challenged statements. We accordingly affirm his convictions.

10. Welsh also raised a cumulative error argument. Because there 

are not errors to accumulate, this doctrine is inapplicable. See State 

v. Gonzales, 2005 UT 72, ¶ 74, 125 P.3d 878.