2020 UT App 145

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

ASHTEN NUNES,

Appellant.

Amended Opinion*

No. 20161070-CA

Filed October 22, 2020

Third District Court, Salt Lake Department

The Honorable Vernice S. Trease

No. 151903010

Freyja R. Johnson, Attorney for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys 

for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGE DIANA HAGEN concurred.

JUDGE GREGORY K. ORME dissented, with opinion.

CHRISTIANSEN FORSTER, Judge:

¶1 Appellant Ashten Nunes challenges his conviction for 

rape, contending that his trial counsel (Trial Counsel) provided 

ineffective assistance. We affirm.

 

* This Amended Opinion replaces the Opinion in Case No. 

20161070-CA issued on April 30, 2020. After our opinion issued, 

the Appellant filed a petition for rehearing, and we called for a 

response. We grant the petition for the purpose of clarifying the 

analysis in paragraphs 24 to 33 of the Amended Opinion, which 

necessitated corresponding changes to the dissenting opinion.
State v. Nunes

20161070-CA 2 2020 UT App 145

BACKGROUND1

¶2 In September 2013, Nunes, then seventeen, met a 

fourteen-year-old girl (Victim) at a concert. Victim and Nunes 

soon began communicating through text messages and a variety 

of social media platforms. Victim felt she could relate to Nunes 

because they both had “a troubled home life” and “a hard 

upbringing.” Victim was also “intrigued” by Nunes “because he 

was into things like magic and crystals.” Their electronic 

communication soon turned sexual, with Nunes messaging 

Victim about what he wanted to do with her sexually. Victim

then began sneaking out of her house, against her parents’

express wishes, to spend time with Nunes at his mother’s home.

Victim enjoyed going there because she could do drugs and 

Nunes’s mother “didn’t care” and never told her to go home. But 

Victim’s father did care, and he soon secured a protective order 

barring any contact between Nunes and Victim. Nunes and 

Victim consistently disregarded the protective order. Victim also 

admitted, “I cared about [Nunes] because he told me things that

nobody has ever told me before and it made me feel like I was 

actually loved by someone and that’s really all I wanted at that 

time, because I had no one . . . .”

¶3 Nearly every time Nunes and Victim spent time together,

Nunes would grope Victim and “beg[] . . . to have sex” with her, 

but Victim would consistently “push him off,” tell him no, and 

say that she was “not ready.” Because Victim had never been in 

a relationship before, she did not realize that Nunes’s behavior 

was “not normal,” and she “just kind of [went along] with it.”

That said, Nunes consistently abided by Victim’s drawing the 

line at sexual intercourse during this period.

 

1. “On appeal, we recite the facts from the record in the light 

most favorable to the jury’s verdict and present conflicting 

evidence only as necessary to understand issues raised on 

appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
State v. Nunes

20161070-CA 3 2020 UT App 145

¶4 Throughout the entirety of their relationship, Nunes often 

talked about another girl he was dating, which made Victim

angry and jealous. But whenever Victim attempted to end the 

relationship, Nunes threatened to kill himself or hurt Victim or 

Victim’s father.

¶5 On December 5, 2014, Victim, then fifteen, and Nunes, 

then eighteen, went to Nunes’s house, where he had recently

moved, and began kissing on his bed. Nunes attempted to 

remove Victim’s clothes, but she again refused to engage in 

sexual intercourse.

¶6 The sexual activity giving rise to the rape charge in this 

case occurred the next day (December 6, 2014) at Nunes’s house. 

Before arriving, Victim messaged Nunes stating that she was 

“excited to see [him] and give [him] somethin somethin,” which 

she revealed to be “shrooms and birth control.”2 When she 

arrived at his house, Nunes began to kiss her, and she 

reciprocated. Victim then “freely” followed Nunes into his 

bedroom, which had a red sticker on the wall “that said ‘rape’ 

and that really scared [her].” Nunes removed her clothing and 

propped her up on her knees while holding her head down 

against his bed. Victim testified at trial that Nunes at no point 

asked whether she wanted to have sex. To the contrary, she 

testified that she expressly asked him to stop “before he even did 

anything,” but he ignored her request and inserted his penis into 

her anus and vagina, while she screamed and cried.3 She 

 

2. The term “shrooms” refers to mushrooms containing 

psilocybin, an illegal substance that produces a hallucinogenic 

effect “that alter[s] a person’s awareness of their surroundings as 

well as their own thoughts and feelings.” Hallucinogens, Nat’l 

Inst. on Drug Abuse, https://www.drugabuse.gov/publications/

drugfacts/hallucinogens [https://perma.cc/NTZ3-ZJPC].

3. Victim testified that Nunes sodomized her; however, he was 

acquitted on this charge.
State v. Nunes

20161070-CA 4 2020 UT App 145

testified that she “definitely said stop once he started” and that 

Nunes was “doing this black magic chant while he was raping” 

her and “was saying this thing about demons” and how she now 

belonged “in his whorehouse.” She also testified that after the 

rape, “there was blood on [her] hands and . . . all over [her].”

Victim stated that the sexual assault “hurt more than anything 

[she had] ever experienced” and made her wonder “why . . . 

people enjoy sex.” She later revealed that she “didn’t realize that 

[sexual intercourse] didn’t have to hurt so much.”4

¶7 During cross-examination, Trial Counsel highlighted 

inconsistencies among Victim’s trial testimony, her initial 

interview with the investigating detective (Detective), and her 

testimony at the preliminary hearing. In the interview with 

Detective, Victim said that she was initially kneeling while 

Nunes penetrated her anus, but she turned around and asked 

him if they could cuddle instead. Victim told Detective that 

Nunes agreed, and she shifted to her side and he began to 

penetrate her again. Victim also told Detective, according to his 

notes, that Nunes had asked her whether she wanted to have 

intercourse, to which she responded that she did. Additionally, 

at the preliminary hearing, Victim testified that her “eyes were 

watering but [she] wasn’t really crying” and that Nunes first 

penetrated her vagina then her anus.

¶8 Victim testified that she did not initially realize that she 

had been raped after the sexual encounter with Nunes: “I didn’t 

know what sex was supposed to be like and I didn’t [know]

what rape was like and I just [thought] maybe . . . this isn’t 

meant for me or maybe I’m too young or maybe I was doing 

something wrong or maybe I should just get used to it.” She 

 

4. When Victim testified to the details of her relationship with 

Nunes and the sexual assault, see supra ¶¶ 2–6, she twice 

mentioned that Nunes had been in jail. Trial Counsel did not 

object because he “didn’t want to draw attention to it.”
State v. Nunes

20161070-CA 5 2020 UT App 145

further testified that she had always conceived of rape in 

different terms:

What they tell you in school, like a girl walking 

down an alleyway in the middle of the night and 

being kidnapped by some weirdo or some guy in a 

van saying there’s candy, come get some candy or 

being drugged by some college frat boy at a party. 

I never thought that rape could be someone that—

from someone that I trusted.

After the rape, Victim told Nunes that she wanted to go home.

Nunes called his mother to come pick them up, and Nunes’s

mother came and drove them to Victim’s house. Victim said she

was “trying so hard not to cry” as she sat next to Nunes in the 

car on the way home, but she still kissed him goodnight when 

she got out of the car. Once home, Victim sent Nunes a message 

saying, “[T]hank you lovely,” and telling him that she loved him 

so much that she could not even “begin to put [it] into words.” 

They also discussed getting together the next day to go 

snowboarding. In contrast to this seemingly affectionate 

behavior, Victim also testified that after she got to her house, she 

“just cried for a long time” and “took a long shower.” She 

recalled thinking that she “never wanted to have sex after that if 

that’s what sex was.”

¶9 Although they did not go snowboarding the next day, 

they continued to exchange messages. Nunes asked Victim if she 

would kiss his other girlfriend in front of him, a request which 

greatly upset Victim. Nunes also told Victim he was angry that 

his other girlfriend had cheated on him, and Victim responded 

that Nunes “cheated on her yesterday too” and said,

“[R]emember you fucked someone else last night too.” Victim

also told Nunes, “I gave everything away to you and you don’t 

even fucking care. [T]hat kills me,” and, “I lost my virginity to 

you last night and you mean everything to me, but I won’t take 

you treating me like that.”
State v. Nunes

20161070-CA 6 2020 UT App 145

¶10 The day after this exchange, Victim reported to her school 

counselor that she felt suicidal, and she was subsequently 

admitted to the hospital. Once discharged, Victim messaged 

Nunes, telling him that he was “the only thing keeping [her] 

here.” For the next month, Nunes and Victim continued to 

communicate. In these messages, Victim was initially

affectionate, but as the days progressed, she explicitly indicated 

that she did not want to see Nunes anymore, to which Nunes 

would respond with threats of suicide. On January 3, 2015,

Victim messaged Nunes to stop contacting her.

¶11 A few days later, on January 6, Victim disclosed to her 

psychotherapist (Counselor), a licensed clinical social worker, 

that “she had lost her virginity,” whereupon she “went into a 

full-blown panic attack, . . . hyper-ventilating . . . [and] sobbing” 

for about twenty minutes. After being calmed by Counselor, 

Victim described what happened on December 6, 2014. It became 

apparent to Counselor that Victim thought she was describing a

sexual experience and not reporting a crime. But after hearing 

Victim’s description, Counselor informed Victim, “[T]hat wasn’t 

sex[;] that was rape.” Victim “was relieved” by this evaluation 

and said she “knew that something was wrong.” Counselor then 

told her that she was going to report the incident to Victim’s

parents, but Victim “begged” her not to do so. During a followup session two days later, Counselor convinced Victim that her 

parents must be told that day about the incident. Victim’s father 

reported the rape to the Division of Child and Family Services, 

and on January 29, 2015, Victim was interviewed by Detective at 

the Children’s Justice Center (CJC). Detective subsequently

searched Nunes’s house and found a blanket with four potential 

blood stains. The stains were tested, and one stain matched

Victim’s DNA.

¶12 In early February, Victim was examined by a doctor. The 

examination revealed a healed cut to her hymen. The doctor who 

performed the examination testified that the cut was “entirely 

consistent” with Victim’s account of being raped, but he 

acknowledged that the cut could also have resulted from 
State v. Nunes

20161070-CA 7 2020 UT App 145

consensual intercourse.5 The examination did not reveal any sign 

of injury to Victim’s anus, but the doctor explained, “[E]ven in 

acute exams, exams that are done immediately or within a few 

days of an assault, we seldom see anal trauma.” The doctor 

noted that one would “not necessarily” expect to find trauma 

even “[i]f something went into the anus without any lubrication 

and against a person’s will.”

¶13 The State subsequently charged Nunes with one count of 

rape and one count of forcible sodomy, both first-degree 

felonies, and ten counts of violation of a protective order, class A 

misdemeanors. Nunes conceded at trial that he was guilty of 

violating the protective order multiple times, but he maintained 

that he had consensual sex with Victim and therefore was not 

guilty of rape or forcible sodomy.

6

 

5. The doctor was speaking medically, not legally, as victims 

need not be subjected to physical force for sexual activity to be 

considered “without consent.” See, e.g., Utah Code Ann. 

§ 76-5-406(11) (LexisNexis Supp. 2014) (“An act of sexual 

intercourse . . . is without consent of the victim . . . [if] the victim 

is 14 years of age or older, but younger than 18 years of age, and 

the actor is more than three years older than the victim and 

entices or coerces the victim to submit or participate . . . .”).

6. Under the then-existing statutory scheme, the age difference 

and acknowledgement of the sexual intercourse alone would 

have been sufficient to convict Nunes of unlawful sexual activity 

with a minor, a class B misdemeanor, given the three-and-a-halfyear age difference between Nunes and Victim. See Utah Code 

Ann. § 76-5-401(2)–(3) (LexisNexis 2012) (“[An] actor . . . [who] 

has sexual intercourse with a minor [commits] . . . a third degree 

felony unless the defendant establishes by a preponderance of 

the evidence the mitigating factor that the defendant is less than 

four years older than the minor at the time the sexual activity 

occurred, in which case it is a class B misdemeanor.”). Rather 

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State v. Nunes

20161070-CA 8 2020 UT App 145

¶14 At trial, Detective testified about his interview of Victim 

at the CJC. As Detective was describing the reason for the 

interview, the State asked Detective what Victim had told him 

about the events of December 6, 2014, and he responded that 

Victim said “[t]hat she had been raped.” Trial Counsel did 

not object.

¶15 Counselor testified about the counseling session during 

which Victim first disclosed her sexual encounter with 

Nunes. After testifying about Victim’s panic attack and eventual 

calming down, the State asked, “[W]hat words was [Victim] 

able to tell you?” Trial Counsel promptly lodged a hearsay 

objection. In response to that objection, the State argued that 

whatever Victim told Counselor could come in as a prior

consistent statement: “It’s the first statement that she made when 

[she was] not under the influence to make anything up and . . . 

[Trial Counsel] has specifically cross-examined [Victim] on the 

different statements that she made” at the CJC, the preliminary 

hearing, and at trial. The trial court responded, “Consistent 

 

(...continued)

than pursue this lesser charge, the State chose to charge Nunes 

with rape and forcible sodomy—both first-degree felonies. See id. 

§§ 76-5-402(3), -403(4) (LexisNexis Supp. 2014). Rape, of which 

the jury convicted Nunes, required the State to prove “sexual 

intercourse with another person without the victim’s consent.” 

Id. § 76-5-402(1). By statute, that lack of consent can be shown in 

twelve specific ways, six of which were articulated in the jury 

instructions. See id. § 76-5-406(1)–(2), (4)–(6), (11). One instruction 

implicated the age difference between Nunes and Victim, see id. 

§ 76-5-406(11), but additionally required the State to show that 

Nunes had “enticed or coerced [Victim] to submit or 

participate.” Thus, the age difference alone was not enough to 

constitute rape under section 76-5-406(11)—it was the age 

difference in conjunction with enticement or coercion. It is 

unclear which of the six lack-of-consent theories the jury relied 

on in reaching its guilty verdict on the rape charge.
State v. Nunes

20161070-CA 9 2020 UT App 145

statements. I think once you impeach her on [a] different 

statement she’s made, then the State can—,” and before the court 

could complete its thought and rule, Trial Counsel withdrew the 

objection. Counselor went on to testify that Victim told her that 

Nunes “had held her down”; that Victim “begged him to stop”;

that “when she was screaming for him to stop, he would do it 

harder”; and “that she was begging and begging and begging 

and begging for him to stop.” Counselor testified that Victim 

told her that Nunes “hit her,” “scratch[ed] her as hard as he 

could,” “chant[ed] some sort of bizarre satanic crazy chant over 

and over,” and “had drawn a symbol on her back and told her 

that she was part of his whorehouse now.”

¶16 Mother testified that she had attended a therapy 

session with Victim and Counselor, and when asked whether it 

appeared Victim “was faking” when she described the 

sexual assault, Mother responded, “Not at all, no.” Trial Counsel 

did not object to Mother’s statement. Having also heard 

from several other witnesses, the jury convicted Nunes on one 

count of rape and ten counts of violation of a protective order 

but acquitted him of forcible sodomy. Nunes appeals the rape 

conviction.

ISSUES AND STANDARD OF REVIEW

¶17 Nunes raises several claims of ineffective assistance of 

counsel that merit our consideration. Nunes argues that Trial 

Counsel was ineffective for failing to object when Victim’s 

mother (Mother) vouched for Victim’s credibility, for

withdrawing an objection to Counselor’s hearsay testimony, and

for failing to object to hearsay testimony from Detective.7 “When 

 

7. Nunes also claims that Trial Counsel provided ineffective 

assistance when he “apparently withdr[ew]” an objection to 

Mother’s hearsay testimony. But on review of the record, it is 

clear that Trial Counsel did not “apparently” withdraw the 

objection, as Nunes claims, but simply said, “Okay,” after the 

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State v. Nunes

20161070-CA 10 2020 UT App 145

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.” Layton City v. Carr, 2014 

UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified).8

ANALYSIS

¶18 “To ensure a fair trial, the Sixth Amendment [to] the U.S. 

Constitution guarantees the right to effective assistance of 

counsel.” State v. Campos, 2013 UT App 213, ¶ 23, 309 P.3d 1160. 

To prevail on an ineffective assistance of counsel claim, 

Nunes must show that (1) “counsel’s performance was deficient”

and (2) this “deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). “Because failure 

 

(...continued)

judge explained why the testimony would be admitted. This 

does not appear to be a withdrawal of the objection so much as 

Trial Counsel accepting the ruling of the court after it was 

obvious he was not going to prevail on the objection.

8. Nunes also asserts that Trial Counsel “was ineffective when he 

failed to object, ask for a curative instruction, or move for a 

mistrial, when [Victim] twice mentioned that [Nunes] had been 

in jail.” At a bench conference, Trial Counsel informed the court 

that he had noticed the references to jail “but didn’t want to 

draw attention to it.” This could well have been a reasonable 

strategic choice for Trial Counsel to make, and thus we decline 

to address it further. See State v. Shepherd, 2015 UT App 208, ¶ 52, 

357 P.3d 598 (stating that not wanting to “highlight” a 

“troublesome point” is a possible tactical reason for “defense 

counsel’s decision not to object”); see also State v. Larrabee, 2013 

UT 70, ¶ 27, 321 P.3d 1136 (stating that the proposition “that 

there are times when counsel’s decision not to object can be both 

strategic and proper” is “axiomatic”).
State v. Nunes

20161070-CA 11 2020 UT App 145

to establish either prong of the test is fatal to an ineffective 

assistance of counsel claim, we are free to address [Nunes’s] 

claims under either prong.” See Honie v. State, 2014 UT 19, ¶ 31, 

342 P.3d 182.

¶19 To succeed on the first prong, Nunes must overcome the 

strong presumption that his trial counsel rendered adequate 

assistance by persuading this court that “considering all the 

circumstances, counsel’s acts or omissions were objectively 

unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350

(quotation simplified). This review is “highly deferential” as it 

can be “all too easy for a court, examining counsel’s defense after 

it has proved unsuccessful, to conclude that a particular act or 

omission of counsel was unreasonable.” Strickland, 466 U.S. at 

689. Thus, “the question of deficient performance is not whether 

some strategy other than the one that counsel employed looks 

superior given the actual results of trial. It is whether a 

reasonable, competent lawyer could have chosen the strategy 

that was employed in the real-time context of trial.” State v. 

Nelson, 2015 UT 62, ¶ 14, 355 P.3d 1031 (quotation simplified). “If 

the court concludes that the challenged action might be 

considered sound trial strategy, it follows that counsel did not 

perform deficiently.” Scott, 2020 UT 13, ¶ 35 (quotation 

simplified).

¶20 In evaluating a claim that counsel was deficient for failing 

to make an objection, deficient performance does not hinge 

solely on the merits of the objection. Counsel “may well have 

made a reasonable tactical choice” in forgoing the objection even 

if “there may have been grounds to object.” State v. Clark, 2004 

UT 25, ¶ 7, 89 P.3d 162. Thus, the dispositive question is whether 

counsel’s actions “fell below an objective standard of 

reasonableness,” Strickland, 466 U.S. at 688, and not whether an 

objection would have been well-taken.

¶21 If a defendant is able to overcome the high threshold of 

demonstrating that his counsel performed deficiently, he must 

next show that “the deficient performance prejudiced the 
State v. Nunes

20161070-CA 12 2020 UT App 145

defense.” Id. at 687. Counsel’s deficient performance is 

prejudicial if “a reasonable probability exists that but for the 

deficient conduct defendant would have obtained a more 

favorable outcome.” State v. Parkinson, 2018 UT App 62, ¶ 9, 427 

P.3d 246 (quotation simplified). This requirement “is a relatively 

high hurdle to overcome.” State v. Apodaca, 2018 UT App 131, 

¶ 77, 428 P.3d 99 (quotation simplified), aff’d, 2019 UT 54, 448 

P.3d 1255. “Most notably this means that a mere potential effect 

on the outcome is not enough.” State v. Apodaca, 2019 UT 54,

¶ 50, 448 P.3d 1255. “Rather, the defendant must show a 

substantial likelihood of a different result as a demonstrable 

reality and not merely as a speculative matter.” State v. Heath, 

2019 UT App 186, ¶ 74, 453 P.3d 955 (quotation simplified).

I. Mother’s Testimony

¶22 Nunes first argues that Trial Counsel “was ineffective 

when he failed to object when Mother vouched for [Victim’s] 

credibility.” At trial, Mother testified that she attended a 

counseling session with Victim and Counselor during which 

Victim informed Mother about the rape. The State asked Mother, 

“When you were sitting there talking to [Victim] and she was 

talking to you about what happened, did it appear that she was 

faking?” Mother responded, “Not at all, no.” Trial Counsel did 

not object to this question. Nunes argues on appeal that Trial 

Counsel was deficient in failing to object to Mother improperly 

vouching for Victim’s credibility, pursuant to rule 608(a) of the 

Utah Rules of Evidence, which “permits testimony concerning a 

witness’s general character or reputation for truthfulness but 

prohibits any testimony as to a witness’s truthfulness on a 

particular occasion.” State v. Adams, 2000 UT 42, ¶ 11, 5 P.3d 642 

(quotation simplified). 

¶23 Assuming without deciding that Trial Counsel performed 

deficiently by failing to object to this vouching, this claim 

nevertheless fails because Nunes has not shown prejudice. First, 

Mother’s comment was relatively isolated, coming on the second 

day of a four-day trial that involved thirteen witnesses. Second, 
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20161070-CA 13 2020 UT App 145

it is unlikely that the jury would have been surprised that 

Mother believed Victim was telling the truth. See State v. King, 

2010 UT App 396, ¶ 46, 248 P.3d 984 (explaining that it is 

unsurprising that a relative would believe that a close family 

member is telling the truth). Given the “incidental nature of the 

challenged statement and the fact that most jurors are likely to 

assume that a mother will believe accusations of sexual abuse 

made by her own children, we cannot conclude that the 

challenged portion of [Mother’s] testimony had any significant 

impact on the jury’s decision to convict” Nunes. See State v. Dew, 

738 S.E.2d 215, 219 (N.C. Ct. App. 2013); see also People v. Valdez, 

No. 255580, 2005 WL 1490096, at *4 (Mich. Ct. App. June 23, 

2005) (per curiam) (“[I]t is highly improbable that the jurors 

decided the case on the basis that a mother believed her child.”); 

State v. Ramey, 349 S.E.2d 566, 572 (N.C. 1986) (“It is unlikely that 

the jury gave great weight to the fact that a mother believed that 

her son was truthful. We believe this evidence had little, if any, 

impact on the jury’s decision and did not ‘tilt the scales’ causing 

the jury to convict the defendant.”).9 Thus, there is no reasonable 

 

9. It is true that our jurisprudence is replete with cases that 

indicate disfavor with one witness vouching for the credibility 

on a particular occasion of another witness, see, e.g., State v. 

Cegers, 2019 UT App 54, ¶ 38, 440 P.3d 924; State v. Burnett, 2018 

UT App 80, ¶ 40, 427 P.3d 288; State v. Stefaniak, 900 P.2d 1094, 

1095–96 (Utah Ct. App. 1995); State v. Iorg, 801 P.2d 938, 941–42 

(Utah Ct. App. 1990). But we disagree with the dissent’s 

assertion that Mother’s “testimony is equivalent to other 

testimony that has been held to impermissibly bolster another 

witness’s credibility.” Infra ¶ 46. Unlike a police detective or an 

expert witness, a mother’s positive take on her daughter’s

believability would not have come as a surprise to the jury. See 

State v. King, 2010 UT App 396, ¶ 46, 248 P.3d 984 (distinguishing 

bolstering by expert witnesses from bolstering by a grandmother 

who reported abuse given that “as a close family member who

had made such a report, it would come as no real surprise to the 

jury that she believed her granddaughter” and concluding that 

(continued...)
State v. Nunes

20161070-CA 14 2020 UT App 145

probability that Nunes would have been acquitted of rape had 

Trial Counsel objected to Mother’s vouching and moved to have 

that testimony stricken.

II. Hearsay Testimony

¶24 Nunes next argues that Trial Counsel was deficient in 

withdrawing his objection to Counselor’s hearsay statements. 

During Counselor’s testimony, the State asked her to specify 

what Victim had disclosed in their January 6, 2015 therapy 

session. At this point, Trial Counsel properly lodged a hearsay 

objection. In response, the State argued that Victim’s hearsay 

statements to Counselor were admissible as prior consistent 

statements pursuant to rule 801(d)(1)(B) of the Utah Rules of 

Evidence. Trial Counsel then withdrew the objection.

¶25 In Utah courts, prior consistent statements may be 

admitted as evidence of the truth of what is contained in the 

statement to rehabilitate a witness’s testimony, but such 

statements are admissible only if they “were made prior to the 

time a motive to fabricate arose” or are admissible to rehabilitate 

a witness after that witness’s credibility has been attacked at trial

and the jury is instructed to consider such testimony only for 

rehabilitative purposes. See State v. Bujan, 2008 UT 47, ¶¶ 1, 9, 

190 P.3d 1255. Here, however, Victim’s statements to Counselor 

were most likely inadmissible as prior consistent statements 

because any motive Victim had to fabricate a rape allegation 

against Nunes would have arisen soon after the rape and before 

Victim made her disclosure to Counselor. See supra ¶ 9. And 

neither party asked for an instruction informing the jury that 

Counselor’s testimony was admitted for only rehabilitative 

purposes. See Bujan, 2008 UT 47, ¶ 9. Instead of persisting in 

 

(...continued)

because the grandmother’s “testimony added nothing to the 

alleged victim’s credibility, any incidental bolstering by the 

grandmother was harmless”).
State v. Nunes

20161070-CA 15 2020 UT App 145

what appears to have been a non-frivolous objection to 

Counselor’s hearsay testimony, Trial Counsel withdrew the 

objection. But assuming without deciding that Trial Counsel 

performed deficiently in withdrawing a valid hearsay 

objection,10 thereby allowing Counselor to retell Victim’s account 

 

10. We resolve this case by assuming that Counselor’s testimony 

was in fact inadmissible hearsay but concluding that Nunes was 

not prejudiced by its admission. Although neither party raises 

this issue on appeal and the State did not seek to rebut Trial 

Counsel’s hearsay objection in this manner, the record 

demonstrates that Counselor’s testimony may have been 

admissible under rule 803 of the Utah Rules of Evidence. Rule 

803(4) creates an exception to the rule against hearsay for 

statements that (1) are “made for—and [are] reasonably 

pertinent to—medical diagnosis or treatment” and (2) 

“describe[] medical history; past or present symptoms or 

sensations; their inception; or their general cause.” Utah R. Evid. 

803(4). “Rule 803(4) applies to statements made to a psychiatrist 

or a psychologist for the purpose of medical diagnosis or 

treatment,” and generally “all statements made to psychiatrists 

or psychologists, regardless of content, are relevant to diagnosis 

or treatment since experts in the field view everything relating to 

the patient as relevant to the patient’s personality.” State v. 

Schreuder, 726 P.2d 1215, 1224 (Utah 1986). And Utah courts have 

repeatedly held that statements by rape victims made to medical 

providers describing their abuse are admissible under rule 

803(4). See, e.g., State v. Guzman, 2018 UT App 93, ¶¶ 29–30, 427 

P.3d 401 (finding that a rape victim’s statements to a nurse were 

made for the purposes of medical diagnosis where the victim 

told the nurse that she had been raped four times in response to 

the nurse’s questioning); State v. Burnside, 2016 UT App 224, 

¶ 43, 387 P.3d 570 (affirming a district court’s finding that “in 

examining [the victim], the nurse practitioner was acting as a 

health-care professional and that [the victim’s] statements to her 

fell within the medical treatment hearsay exception”); State v. 

Sloan, 2003 UT App 170, ¶ 21 n.2, 72 P.3d 138 (holding that a 

(continued...)
State v. Nunes

20161070-CA 16 2020 UT App 145

of her rape to the jury, Nunes still cannot show prejudice, 

because the testimony at issue did not impermissibly bolster 

Victim’s credibility or otherwise alter the evidentiary landscape 

in a way that had a reasonable probability of affecting the 

outcome of the trial.

¶26 Nunes’s theory at trial was that the sexual activity was 

consensual and that Victim claimed otherwise only after the fact 

because she became jealous of Nunes’s other girlfriend and 

began to regret that she had “lost her virginity” to him.

Although “courts are more likely to reverse a jury verdict if the 

pivotal issue at trial was credibility of the witnesses and the 

errors went to that central issue,” State v. Thompson, 2014 UT 

App 14, ¶ 73, 318 P.3d 1221, Counselor’s testimony merely

repeated Victim’s account. Because Victim spoke to Counselor 

after the alleged motive to fabricate arose, Counselor’s testimony 

did nothing to undermine Nunes’s theory that Victim concocted 

the story out of jealousy. The fact that Counselor recounted to 

the jury the same post-motive details (i.e., those associated with 

Victim’s account of the rape after her alleged motive to fabricate 

arose) that Victim had already told the jury does not make 

Victim’s account of the rape more or less believable. Therefore, 

there is no reasonable probability that Counselor’s testimony 

tipped the credibility balance toward Victim and away from 

Nunes.

¶27 Moreover, Counselor did not vouch for the credibility of 

Victim. To be sure, in cases that hinge entirely on the veracity of 

the victim, we have more readily found prejudice where the 

 

(...continued)

licensed clinical social worker’s testimony regarding a sex abuse 

victim’s out-of-court statements made during her evaluation 

were admissible under rule 803(4)). Furthermore, statements 

coming in under rule 803(4) are not limited to explaining the 

basis of a medical opinion but can be offered to prove the truth 

of the matter asserted. Schreuder, 726 P.2d at 1223.
State v. Nunes

20161070-CA 17 2020 UT App 145

challenged testimony has the effect of bolstering the victim’s 

credibility. See, e.g., State v. Cegers, 2019 UT App 54, ¶¶ 33, 37, 

440 P.3d 924; State v. Stefaniak, 900 P.2d 1094, 1096 (Utah Ct. App. 

1995); State v. Iorg, 801 P.2d 938, 941–42 (Utah Ct. App. 1990). But 

this is not a bolstering case. Counselor did not “offer[] a direct 

opinion as to [Victim’s] truthfulness on a particular occasion.” 

See Cegers, 2019 UT App 54, ¶ 26 (quotation simplified). She did 

not testify, for example, that Victim “appeared to be genuine,” 

see State v. Bragg, 2013 UT App 282, ¶ 31 & n.8, 317 P.3d 452 

(quotation simplified), “seemed to be quite candid about what 

she was telling” her, see Stefaniak, 900 P.2d at 1095 (quotation 

simplified), or displayed “indicators that would show a 

likelihood of honesty,” see State v. Vail, 2002 UT App 176, ¶¶ 6, 

15, 51 P.3d 1285 (quotation simplified). Nor did Counselor 

provide testimony “calculated to bolster [Victim’s] believability 

by assuring the jury no credibility problem was presented by the 

delay in [Victim’s] reporting the incident.” See Iorg, 801 P.2d at 

942. Instead, Counselor’s testimony largely repeated the same 

facts to which Victim had already testified at length and did not 

address Victim’s credibility.

¶28 While it is true that Victim did not testify to certain details 

(e.g., hitting and scratching) that Counselor mentioned, Victim

did testify in vivid detail to all the other facts recounted by 

Counselor. In her own testimony, Victim explained that Nunes 

“propped [her] legs up” so that she was “kneeling” and held 

“the back of [her] neck so it was pressed against the bed.” There 

was a “red sticker that said ‘rape’” on his wall that “scared 

[her] . . . before he even did anything” to her, and she asked him 

to stop. Then Victim said,

[H]e just did it and it hurt so bad and I was like 

screaming and crying and he was holding me 

down. I was telling him to stop.

And he—he . . . put it in my vagina and . . . he 

didn’t even like use anything, it was just like—felt 

like it was ripping and he was saying this thing 
State v. Nunes

20161070-CA 18 2020 UT App 145

about demons and how I [be]long in his 

whorehouse and like doing this black magic chant 

while he was raping me and I was crying and I was 

telling him to stop.

¶29 Victim was also asked to read the transcript of her 

interview with Detective, which the defense offered into 

evidence in its entirety, focusing specifically on the part where 

she explained that Nunes had held down her head, that she was 

screaming and crying for him to stop, and that he would go 

faster every time she screamed for him to stop. And the jury had 

already heard from Victim that she told Counselor “everything” 

that happened. Thus, Victim’s testimony alone contained all the 

facts necessary to establish the elements of the offenses charged, 

and Counselor’s recitation of what Victim told her—even with 

the addition of the few added details about hitting and 

scratching—was no more inflammatory than Victim’s own 

account. In light of the brutal details of the rape that the jury had 

already heard from Victim, there is no reasonable likelihood that 

a single, passing reference to hitting and scratching so 

prejudiced Nunes that the jury would have otherwise 

acquitted.11 See State v. Jackson, 2010 UT App 328, ¶ 17, 243 P.3d 

902 (declining to find prejudice where “the alleged hearsay 

 

11. For the same reasons, we reject Nunes’s argument that Trial 

Counsel provided ineffective assistance by failing to object to 

Detective’s testimony that Victim told him “[t]hat she had been 

raped.” Nunes asserts that this statement amounted to hearsay 

testimony that “impermissibly bolstered [Victim’s] testimony 

and enhanced her credibility,” making “the jury . . . more likely 

to believe her story.” Assuming that Detective’s statement was 

impermissible hearsay to which Trial Counsel should have 

objected, we nevertheless fail to see how its admission 

prejudiced Nunes given that the jury had already heard Victim’s 

vivid description of the rape, see supra ¶¶ 6, 28–29, and 

Detective’s comment about why he was investigating was not a 

comment on Victim’s veracity.
State v. Nunes

20161070-CA 19 2020 UT App 145

evidence was cumulative because it reiterated the essence of 

testimony presented by the victims or other eyewitnesses”), 

overruled on other grounds by State v. DeJesus, 2017 UT 22, 395 P.3d 

111.

¶30 Nunes argues that Counselor’s retelling of Victim’s 

allegations was especially prejudicial because Victim’s behavior 

before and after the rape called her credibility into question in 

the eyes of the jury. But Counselor did not make any statements 

regarding Victim’s credibility; she simply relayed to the jury 

what Victim had disclosed to her. To the extent that Victim’s 

conduct before and after the rape cast doubt on her veracity, 

Counselor’s retelling of Victim’s disclosures would have done 

little to allay that doubt. More likely, the jury found Victim’s 

explanations for her conduct believable.12

¶31 Victim testified at length regarding why she acted as she 

did after the rape. She testified about Nunes’s manipulative 

 

12. This court’s prior caselaw has reiterated that “rape victims 

display a diverse range of reactions to the harm they suffered,” 

including, but not limited to, “shame, shock, resignation, 

humiliation, fear, embarrassment, confusion, and/or disbelief.” 

State v. Jok, 2019 UT App 138, ¶ 24, 449 P.3d 610, cert. granted, 456 

P.3d 386 (Utah 2019). The jury appears to have understood that 

despite the persistence of certain cultural myths, not all rape 

victims will immediately report the attack or have no further 

interaction with their rapists. See In re J.F.S., 803 P.2d 1254, 1259 

(Utah Ct. App. 1990) (concluding that a victim’s “delayed 

reporting is not inconsistent with her claim that she was raped” 

and explaining that “[t]he embarrassment and shame that is 

characteristic of rape victims prevents many victims from 

reporting the incident”); see also Amy M. Buddie & Arthur G. 

Miller, Beyond Rape Myths: A More Complex View of Perceptions of 

Rape Victims, 45 Sex Roles 139, 140 (2001) (defining “rape myths” 

as “prejudicial, stereotyped, or false beliefs about rape, rape 

victims, and rapists” (quotation simplified)).
State v. Nunes

20161070-CA 20 2020 UT App 145

behavior, how he “got inside [her] head,” and the “things that he 

said that just made [her] feel like [she] had no choice but to . . . 

go back to him.” She testified that she would tell him “all the 

time” that she wanted to leave the relationship, but he would 

threaten suicide or threaten to “hurt [her] dad” by “beat[ing] 

him until his blood is running down the drain.” She explained 

that she kept telling him that she loved him and “kept going 

back to him because [she] was scared.” She testified that on the 

night of the rape, she “hugged” him when he dropped her off at 

home “not because [she] wanted to” but because she “was never 

comfortable saying no,” and she later sent him “loving” text 

messages because she “was scared of what would happen if 

[she] didn’t.”

¶32 Victim also explained that she did not realize she had 

been raped, because she “didn’t [know] what rape was like” or 

that such an act could be committed by “someone that [she] 

trusted.” Victim testified that in her mind, rape was “like a girl 

walking down an alleyway in the middle of the night and being 

kidnapped by some weirdo or some guy in a van saying there’s 

candy . . . or being drugged by some college frat boy at a party.” 

Although she may not have realized that Nunes’s conduct 

amounted to rape, Victim’s parents testified that her mental 

health changed dramatically the day after the rape and that she 

was soon admitted to the hospital for suicidal ideation. Victim

also testified that she told Counselor that she felt “violated” and 

was having “flashbacks” of the encounter, even before she 

understood that she had been raped.

¶33 In short, we do not believe that Counselor’s repetition at 

trial of the details of the rape, even with the addition of other 

details, significantly altered the evidentiary picture in a way that 

affected the outcome of the trial. Trial counsel made Victim’s 

pre- and post-rape behavior the centerpiece of the defense at trial 

in an attempt to cast doubt on Victim’s credibility. Yet the jury 

believed Victim’s testimony that she did not consent to sexual 
State v. Nunes

20161070-CA 21 2020 UT App 145

intercourse with Nunes despite how she reacted after the fact.13

Counselor’s retelling of the details of the rape that Victim had 

already told the jury could not have tipped the scales in favor of 

a guilty verdict if the jury did not believe the bulk of Victim’s 

testimony in the first place. For if the jury had been inclined to 

 

13. The dissent points out that the jury must have had issues 

with Victim’s credibility because the jury acquitted Nunes of 

sodomy. See infra ¶¶ 36, 50. While a split verdict may be 

consistent with the notion that the jury was conflicted about the 

evidence or had some doubt about a victim’s credibility, see State

v. Richardson, 2013 UT 50, ¶ 44, 308 P.3d 526, it may also just as 

legitimately suggest compromise or some leniency in favor of 

Nunes, see State v. Payne, No. 119,083, 2019 WL 4551642, at *9 

(Kan. Ct. App. Sept. 20, 2019) (“But reading the tea leaves of a 

jury’s mixed verdicts on multiple counts against a defendant is 

fraught with inexactitude and guesstimating as a general 

exercise, especially given the breadth of considerations that may 

influence deliberations in any particular case.”); see also United 

States v. Powell, 469 U.S. 57, 64–67 (1984) (recognizing that even 

truly inconsistent verdicts “should not necessarily be interpreted 

as a windfall to the Government at the defendant’s expense” 

because “[i]t is equally possible that the jury, convinced of guilt, 

properly reached its conclusion on the compound offense, and 

then through mistake, compromise, or lenity, arrived at an 

inconsistent conclusion on the lesser offense”). Moreover, a jury 

verdict in which a defendant is convicted of rape but acquitted 

of sodomy does not necessarily mean the jury had doubts about 

the victim’s claim of rape. Aware that Victim was young and 

inexperienced, the jury may well have chosen to believe Victim’s 

account of rape, which claim was supported by some slight 

physical evidence, while having a reasonable doubt about 

whether she was sodomized in the absence of any sign of 

trauma. See State v. Lopez, 892 P.2d 898, 902 (Idaho Ct. App. 1995)

(“A reasonable doubt as to one detail of [a] victim’s testimony 

did not require [the jury] to disbelieve the rest of her testimony.”

(quotation simplified)).
State v. Nunes

20161070-CA 22 2020 UT App 145

accept the defense theory that Victim’s post-rape reactions were 

so inconsistent with rape that her later allegations must have 

been fabricated, it would mean that Victim was also lying when 

she spoke to Counselor. In that scenario, it is difficult to imagine 

how Counselor’s recitation of Victim’s allegedly false story could 

have influenced the jury’s verdict. Under the circumstances of 

this case, there is no reasonable probability that Nunes would 

have obtained a more favorable outcome at trial without 

Counselor’s testimony.

CONCLUSION

¶34 Assuming that Trial Counsel rendered deficient 

performance in failing to properly object to various testimonial 

statements made by Mother, Counselor, and Detective, Nunes 

has not shown that he was prejudiced by these alleged 

deficiencies. Therefore, we affirm.

ORME, Judge (dissenting):

¶35 I respectfully dissent. I believe that Trial Counsel was 

deficient in two respects: first, when Trial Counsel withdrew his 

objection to hearsay testimony offered by Counselor and, 

second, when he failed to object to bolstering testimony by 

Mother. Each of these instances are prejudicial to Nunes in their 

own right—and all the more so in combination—and they entitle 

him to a new trial. 

¶36 At the outset I make a preliminary comment. The jury in 

this case had substantial doubts about Victim’s credibility. It did

not believe her claim that she was sodomized, and it acquitted 

Nunes of that charge. There was no physical evidence 

conclusively pointing to rape, no disinterested witness to the 

crime, and no confession, see generally State v. Burnett, 2018 UT 

App 80, ¶¶ 39–41, 427 P.3d 288, so the State’s case turned on 
State v. Nunes

20161070-CA 23 2020 UT App 145

Victim’s credibility. This suggests that essentially any evidence 

that came in that tended to enhance Victim’s credibility 

potentially tipped the balance in favor of the jury believing her 

testimony. See id. ¶ 39 (“Our supreme court has indicated that a 

split verdict can be an indication that the jury was conflicted 

about the evidence and the competing version of events offered 

by the victim and the defendant, and that [certain errors] may 

very well have mattered.”) (quotation simplified). Understood 

from this perspective, the improper evidence that came in in this 

case was prejudicial. 

I. Counselor’s Hearsay Testimony

¶37 Before the complained-of testimony by Counselor, the 

groundwork was laid as to what Counselor was going to be 

testifying about and in what capacity. At the beginning of 

Counselor’s testimony, during a point when Counselor was 

explaining her extensive training focused on adolescents, Trial 

Counsel objected when he thought Counselor was going to start 

vouching for Victim, arguing: 

This is a fact witness, not an expert witness and 

we’ve been spending a lot of time with her 

credentials and she’s now trying to get into the 

idea that adolescents work well with her and all 

that in an attempt to vouch for [Victim’s] 

credibility. She's supposed to be a fact witness, not 

an expert.

The prosecutor responded, “I haven’t asked her an expert 

question yet,” and a moment later stated that “[u]nder 704, as a 

lay witness, she can testify about what’s happening in her 

presence.” The prosecutor also informed Trial Counsel that 

Counselor was “not going to say that [Victim] said anything.”

Later, during the substance of Counselor’s testimony, Trial 

Counsel again objected, and the court stated that as “a lay 

person” Counselor could continue testifying about her 

observations of Victim.
State v. Nunes

20161070-CA 24 2020 UT App 145

¶38 The complained-of hearsay testimony offered by 

Counselor came in when the prosecutor asked Counselor what 

Victim told her during the January 6, 2015 counseling session. 

Trial Counsel properly lodged a hearsay objection. The 

prosecutor then argued that the statements were admissible 

because “[i]t’s the first statement that she made when [she was] 

not under the influence to make anything up and . . . [Trial 

Counsel] has specifically cross-examined [Victim] on the 

different statements that she made” at the CJC, the preliminary 

hearing, and at trial. In response, Trial Counsel affirmatively 

withdrew the objection. Counselor proceeded to testify that 

Victim told her that Nunes “had held her down, that she had 

begged him to stop[;] [t]hat when she was screaming for him to 

stop, he would do it harder”; and that Nunes “hit her” and “was 

scratching her as hard as he could.” She also testified that Victim 

told her “that she was begging and begging and begging and 

begging for him to stop,” but Nunes would not stop and “was 

chanting some sort of bizarre satanic crazy chant over and over” 

and “had drawn a symbol on her back and told her that she was 

part of his whorehouse now.” 

¶39 My colleagues assume that Trial Counsel’s withdrawal of 

his valid objection was deficient and decide this issue on the 

basis of a lack of prejudice—essentially because Counselor’s 

account of the alleged rape was cumulative of Victim’s 

testimony. In my view, withdrawing the objection was indeed 

objectively deficient because it fell below an objective standard 

of reasonableness. And in the context of Victim’s questionable 

credibility in the eyes of the jury, Counselor’s testimony was 

clearly prejudicial because it impermissibly strengthened 

Victim’s credibility in a case that turned on credibility. 

¶40 Hearsay is an out-of-court statement offered “to prove the 

truth of the matter asserted in the statement,” Utah R. Evid. 

801(c), and is ordinarily inadmissible at trial, id. R. 802. 

Statements that are not considered hearsay include those in 

which
State v. Nunes

20161070-CA 25 2020 UT App 145

[t]he declarant testifies and is subject to 

cross-examination about a prior statement, and the 

statement: . . . is inconsistent with the declarant’s 

testimony or the declarant denies having made the 

statement or has forgotten, or . . . is consistent with 

the declarant’s testimony and is offered to rebut an 

express or implied charge that the declarant 

recently fabricated it or acted from a recent 

improper influence or motive in so testifying.

Id. R. 801(d)(1)(A)–(B). However, prior consistent statements are 

admissible “to prove the truth of the matter asserted,” id. R. 

801(c), only if they “were made prior to the time a motive to 

fabricate arose,” State v. Bujan, 2008 UT 47, ¶ 1, 190 P.3d 1255 

(emphasis added).

¶41 Prior consistent statements may also come in for 

non-substantive rehabilitative purposes, meaning the statements 

may be admitted not for the truth of the matter asserted in the 

statement but to rehabilitate a witness’s credibility after it has 

been attacked. See id. ¶ 9 (“We have recognized under common 

law the admissibility of prior consistent statements for 

rehabilitative purposes.”). See also State v. Sibert, 310 P.2d 388, 

391 (Utah 1957) (“[W]here there has been an attempt to impeach 

or discredit a witness, prior statements consistent with his 

present testimony may be offered to offset the impeachment.”). 

When prior consistent statements are admitted for rehabilitative 

purposes, a limiting instruction should be “provided to the jury 

that the testimony was only admitted for rehabilitative 

purposes.” Bujan, 2008 UT 47, ¶ 9. Otherwise, “the testimony [is] 

inappropriate hearsay and its admission improper.” Id. 

¶42 Rule 801(d)(1)(B) “permits the introduction of a 

declarant’s consistent out-of-court statements to rebut a charge 

of recent fabrication . . . only when those statements were made 

before the charged recent fabrication.” Tome v. United States, 513 

U.S. 150, 167 (1995). Here, any of Victim’s statements to 

Counselor were inadmissible under the rule because, had Victim 
State v. Nunes

20161070-CA 26 2020 UT App 145

fabricated her account as Nunes asserts, her motive to do so 

would have arisen soon after the alleged rape and before she 

spoke to Counselor. Specifically, when Nunes continued to 

discuss his other girlfriend with Victim, she responded, “I gave 

everything away to you and you don’t even fucking care. [T]hat 

kills me,” and “I lost my virginity to you last night and you 

mean everything to me, but I won’t take you treating me like 

that.” Because Victim’s motive to fabricate a rape claim arose the 

day after the alleged rape—when she expressed jealousy toward 

the other girlfriend and expressed remorse for losing her 

virginity to Nunes—Counselor’s testimony about what Victim 

told her concerning the alleged rape, having come after this 

motive to fabricate arose, are inadmissible as prior consistent 

statements. See Bujan, 2008 UT 47, ¶ 11. 

¶43 The State appears to concede that the statements 

were not admissible as substantive evidence on the 

prior-consistent-statement rationale, but it argues that the 

statements were nonetheless admissible as non-hearsay because 

they amounted to “non-substantive rehabilitation.” But even if 

the State had offered the statements for their non-substantive 

rehabilitative value, which was not the explanation offered at 

trial, no instruction was given to the jurors to inform them “that 

the testimony was only admitted for rehabilitative purposes.”

Id. ¶ 9. Thus, the statements offered by Counselor were 

“inappropriate hearsay and [their] admission improper.” Id.

Trial Counsel should have stood by his objection. Failing to do 

so “fell below an objective standard of reasonableness.” State v. 

Scott, 2020 UT 13, ¶ 31, 462 P.3d 350 (quotation simplified).

II. Mother’s Bolstering

¶44 My colleagues again assume, for purposes of their 

analysis, that it was deficient for Trial Counsel not to object 

to Mother’s vouching for her daughter’s truthfulness, and 

they decide this issue on prejudice grounds. I conclude that it 

was deficient performance and prejudicial in the posture of 

this case. 
State v. Nunes

20161070-CA 27 2020 UT App 145

¶45 At trial, Mother testified that she attended a counseling 

session with Victim and Counselor during which Victim 

informed Mother about the alleged rape. The State asked 

Mother, “When you were sitting there talking to [Victim] and 

she was talking to you about what happened, did it appear that 

she was faking?” Trial Counsel did not object to this question. 

Mother responded, “Not at all, no.” 

¶46 Rule 608(a) of the Utah Rules of Evidence “permits 

testimony concerning a witness’s general character or reputation 

for truthfulness but prohibits any testimony as to a witness’s 

truthfulness on a particular occasion.” State v. Adams, 2000 UT 

42, ¶ 11, 5 P.3d 642 (quotation simplified). Here, Mother’s 

testimony that Victim was not faking “was not an opinion about 

[Victim’s] general character for truthfulness, but a direct opinion 

of [Victim’s] truthfulness on a particular occasion” and was 

therefore inadmissible. See State v. Cegers, 2019 UT App 54, ¶ 24, 

440 P.3d 924 (quotation simplified). This testimony is equivalent 

to other testimony that has been held to impermissibly bolster 

another witness’s credibility. See, e.g., Adams, 2000 UT 42, 

¶¶ 19-20 (holding that a detective’s testimony that the victim did 

not appear to be coached was impermissible bolstering); State v. 

Rimmasch, 775 P.2d 388, 392–93 (Utah 1989) (holding that an 

expert’s testimony that he believed the victim was telling the 

truth was inadmissible bolstering), superseded by rule on other 

grounds as stated in State v. Maestas, 2012 UT 46, 299 P.3d 892; 

State v. Bragg, 2013 UT App 282, ¶ 31, 317 P.3d 452 (holding that 

a detective’s testimony that the victim “appeared ‘to be 

genuine’” during an interview “clearly violated rule 608”); State 

v. Vail, 2002 UT App 176, ¶¶ 6, 15, 51 P.3d 1285 (holding that a 

detective’s testimony that the victim seemed credible and 

trustworthy during an interview was inadmissible bolstering); 

State v. Stefaniak, 900 P.2d 1094, 1095–96 (Utah Ct. App. 1995) 

(holding that a social worker’s testimony that the victim 

“seemed to be quite candid” during an interview was 

inadmissible). It is exclusively the factfinder’s role to determine 

witness credibility, see State v. Workman, 852 P.2d 981, 984 (Utah 

1993), and allowing Mother to vouch for the believability of her 
State v. Nunes

20161070-CA 28 2020 UT App 145

daughter “had the potential to usurp the fact-finding function of 

[the] jury,” Stefaniak, 900 P.2d at 1096 (quotation simplified). 

Objectively reasonable counsel would have objected to the 

question that called for Mother’s take on Victim’s truthfulness, 

would have moved to have the vouching testimony stricken if it 

did come in, and would have asked for a limiting instruction if 

the trial court did not strike the testimony outright. 

III. Prejudice

¶47 Having concluded that Trial Counsel rendered deficient 

performance in withdrawing his objection to Counselor’s 

hearsay testimony and in failing to object to Mother’s 

impermissible bolstering, I believe that either of these instances 

of deficient performance, let alone the two combined, prejudiced 

Nunes. Counsel’s deficient performance is prejudicial if “there is 

a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” 

Strickland v. Washington, 466 U.S. 668, 694 (1984). When we 

determine that an attorney’s deficient performance was not 

prejudicial, it is often because the evidence against a defendant is 

so overwhelming that the jury would have rendered the same 

result whether or not counsel had performed deficiently. See, e.g., 

State v. Lopez, 2019 UT App 11, ¶ 35, 438 P.3d 950 (holding that 

due to the “overwhelming evidence . . . introduced at trial” there 

was “no reasonable probability” that had the error not occurred, 

the jury would have acquitted the defendant); State v. Courtney, 

2017 UT App 172, ¶ 23, 424 P.3d 198 (holding that the 

“evidence against [the defendant] was so overwhelmingly 

strong” that any error at trial was harmless). And the opposite is 

likewise true. See State v. King, 2010 UT App 396, ¶ 35, 248 P.3d 

984 (“While we more readily find errors to be harmless when 

confronted with overwhelming evidence of the defendant’s 

guilt, we are more willing to reverse when a conviction is based 

on comparatively thin evidence.”) (quotation simplified); State v. 

Havatone, 2008 UT App 133, ¶ 17, 183 P.3d 257 (reversing a 

conviction because the errors, “when combined and considered 

with the weakness of the evidence,” warranted a new trial). 
State v. Nunes

20161070-CA 29 2020 UT App 145

¶48 The other evidence against Nunes was not so 

overwhelming that I can say with confidence that he was not 

prejudiced by admission of Counselor’s hearsay statements or 

Mother’s impermissible bolstering of Victim’s credibility. Nunes 

insisted the sexual encounter was consensual while Victim 

claimed it was not, and the State presented no conclusive 

physical evidence of rape.14

¶49 There was evidence before the jury that might well have 

caused it to question Victim’s account, even if doing so would 

not be consistent with enlightened perspectives on the behavior 

of rape victims. Before the alleged rape, Victim messaged Nunes 

telling him that she was “excited to see [Nunes]” and that she 

was bringing “shrooms and birth control.” When Victim arrived 

at Nunes’s home, Nunes began to kiss Victim, and she kissed 

him back and freely followed him to the bedroom. According to 

Detective, Victim told him that Nunes asked if she wanted to 

have sex, to which she responded affirmatively. While the jury 

may well have hesitated to read too much into Victim’s pre-sex 

behavior, mindful that Victim was free to change her plans and 

withdraw her consent even after consensual sex began, it might 

well have viewed her subsequent conduct as inconsistent with her 

being a victim of rape. Especially in the absence of the 

inadmissible testimony, the jury might have found it significant 

that Victim voluntarily and affectionately interacted with Nunes 

immediately after the alleged rape and for the subsequent month 

with no hint that the sexual encounter was anything but 

consensual. For example, after the alleged rape, on the way to 

Victim’s home, she sat next to Nunes in the car and hugged and 

kissed him goodnight when she got out of the car. Victim then 

sent Nunes a message saying “thank you lovely” and that she 

 

14. The State offered into evidence testimony about a single 

blood spot on Nunes’s sheet that matched Victim’s DNA and a 

healed cut to Victim’s hymen, but the State’s own expert testified 

that the cut could have resulted from either rape or consensual 

sex. 
State v. Nunes

20161070-CA 30 2020 UT App 145

loved him so much that she could not even “begin to put [it] into 

words.” Moreover, after Nunes expressed his anger over the 

other girlfriend cheating on him, Victim messaged him that he 

had cheated on that girl, too, referring to his sexual encounter 

with Victim. Victim also told Nunes, with my emphasis, “I gave

everything away to you and you don’t even fucking care. [T]hat 

kills me,” and “I lost my virginity to you last night and you 

mean everything to me, but I won’t take you treating me like 

that.”15 She then continued to express her love for Nunes for 

another month before informing him that she no longer wanted 

any contact with him and reporting the incident to Counselor 

and nothing in our rules of evidence prohibited evidence of 

Victim’s subsequent behavior from being presented to the jury 

for its consideration. This evidence surely does not entitle Nunes 

to an acquittal, and he could well be convicted again if accorded 

the retrial he deserves, but because the remaining evidence 

against him was far from overwhelming, it does suggest that, 

without Counselor’s hearsay testimony recounting the alleged 

rape and Mother’s vouching for Victim’s credibility, “a 

reasonable probability exists that . . . [Nunes] would have 

obtained a more favorable outcome.” State v. Parkinson, 2018 UT 

App 62, ¶ 9, 427 P.3d 246 (quotation simplified).

¶50 As noted, this case turned on Victim’s credibility, about 

which it is inarguable that the jury had doubts. It is entirely 

possible that Counselor’s hearsay testimony, especially in 

conjunction with Mother’s impermissible bolstering, tipped the 

credibility balance toward Victim and away from Nunes. Their

maturity and, in the case of Counselor, professional training, 

may well have made Counselor and Mother more credible 

witnesses in the eyes of the jurors than Victim. And Counselor 

did not merely repeat Victim’s claim that she had been raped, 

which is problem enough in a case as close as this one. Instead, 

Counselor included graphic details that Victim herself did not 

 

15. The reference is clearly not to Nunes raping Victim but to 

Nunes carrying on with his other girlfriend. 
State v. Nunes

20161070-CA 31 2020 UT App 145

testify to, such as Nunes hitting and “scratching her as hard as 

he could” and raping her “harder” when she screamed for him 

to stop. And due to the he-said-she-said nature of the evidence, 

the testimony of a licensed clinical social worker that repeated 

and embellished Victim’s account may well have counted for a 

lot in the eyes of the jury. True, as the majority points out, most 

of Counselor’s testimony was cumulative in a technical sense, 

but in a close case like this one, hearing the same damning 

evidence twice may well give it greater weight in the eyes of the 

jury even if she had not added anything new. And the doubts 

the jury had about Victim’s credibility might well have been 

minimized during deliberations in view of the more polished 

testimony presented by a trained professional.

¶51 And regarding Mother’s bolstering, our jurisprudence is 

replete with cases that have found prejudice when improper 

bolstering evidence was admitted, there was little or no physical 

evidence of the crime, and the State’s case hinged on the 

credibility of the victim. See State v. Cegers, 2019 UT App 54, 

¶¶ 37–38, 440 P.3d 924 (holding that the defendant was 

prejudiced from the admission of improper bolstering when “the 

jury’s verdict hinged on its assessment of the victim’s 

credibility”); State v. Burnett, 2018 UT App 80, ¶¶ 39, 41, 427 P.3d 

288 (holding that “had counsel properly objected to [the expert’s] 

testimony regarding credibility” in a case where “there was no 

confession, no third-party eyewitnesses, and no physical 

evidence” there was “a reasonable probability that [the 

defendant] would have obtained a more favorable outcome at 

trial”); State v. Stefaniak, 900 P.2d 1094, 1096 (Utah Ct. App. 1995) 

(holding that testimony bolstering the victim’s credibility was 

prejudicial as the case “hinged entirely on the credibility of the 

victim”); State v. Iorg, 801 P.2d 938, 941–42 (Utah Ct. App. 1990) 

(holding that testimony that “was clearly calculated to bolster 

[the victim’s] believability” in a case that “hinged on credibility” 

was prejudicial). Regardless of the fact that Victim was Mother’s 

child, no witness is allowed to bolster another witness’s 

believability and doing so is invariably prejudicial when the case 

hinges on that witness’s credibility. And this case assuredly 
State v. Nunes

20161070-CA 32 2020 UT App 145

turned on Victim’s credibility as evidenced by Nunes’s acquittal 

on the sodomy charge. There was no compelling physical 

evidence of the alleged rape, “no confession, no third-party 

eyewitnesses,” Burnett, 2018 UT App 80, ¶ 39, and the jury 

clearly had issues with Victim’s credibility. Thus, there is a 

reasonable probability that the jury would have found Victim 

incredible without Mother’s bolstering and come to a more 

favorable conclusion for Nunes at trial.

¶52 Without the hearsay testimony of Counselor and Mother’s 

impermissible bolstering, there is at least a reasonable 

probability of Nunes receiving a better result at trial, especially 

in light of the sparse physical evidence and the case hinging 

almost solely on Victim’s credibility. See State v. Thompson, 2014 

UT App 14, ¶ 73, 318 P.3d 1221 (“[C]ourts are more likely to 

reverse a jury verdict if the pivotal issue at trial was credibility of 

the witnesses and the errors went to that central issue.”). See also 

State v. Larrabee, 2013 UT 70, ¶¶ 35–37, 321 P.3d 1136 (holding 

that counsel’s deficient performance prejudiced the defendant 

when there was little physical evidence and the case hinged on 

the victim’s credibility); Gregg v. State, 2012 UT 32, ¶¶ 26–30, 279 

P.3d 396 (same); State v. Templin, 805 P.2d 182, 188 (Utah 1990) 

(same); State v. Bujan, 2006 UT App 322, ¶¶ 30–32, 142 P.3d 581 

(same), aff’d, 2008 UT 47, 190 P.3d 1255. It is clear to me that 

“there is a reasonable probability that, but for [Trial Counsel’s] 

unprofessional errors, the result of the proceeding would have 

been different.” Strickland v. Washington, 466 U.S. 688, 694 (1984). 

I would therefore vacate Nunes’s rape conviction and remand 

for a new trial on that charge.