2021 UT App 106

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

LARRY CHARLES DIVINEY,

Appellant.

Opinion

No. 20190778-CA

Filed October 7, 2021

Fifth District Court, Cedar City Department

The Honorable Keith C. Barnes

No. 171500731

Emily Adams, Freyja Johnson, and Cherise M. 

Bacalski, Attorneys for Appellant

Sean D. Reyes and David A. Simpson, Attorneys

for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGE DIANA HAGEN and SENIOR JUDGE KATE APPLEBY 

concurred.1

MORTENSEN, Judge:

¶1 Shoeless, bloody, emotional, and carrying her small child, 

Ella2 stumbled into a convenience store just after 3:00 a.m. one 

November morning. Soon after, she explained to responding 

police officers that her husband, Larry Charles Diviney, had 

locked her in their basement apartment and beat her with a 

 

1. Senior Judge Kate Appleby sat by special assignment as 

authorized by law. See generally Utah R. Jud. Admin. 11-201(7).

2. A pseudonym.
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baseball bat before she was able to collect their child and escape. 

Although Diviney told police a different story—a story that 

involved him inadvertently hitting Ella with the baseball bat 

while fighting with an unidentified home intruder—after trial, a 

jury convicted Diviney of domestic violence in the presence of a 

child, aggravated kidnapping, and aggravated assault. Diviney 

appeals, and we affirm.

BACKGROUND3

The Attack

¶2 Convinced Ella was cheating on him, Diviney was 

suspicious and angry. And during a weekend trip to Las Vegas 

in the midst of him harboring these beliefs, he punched her in 

the face and forced her to use drugs with him. But the weekend 

was only beginning. After arriving back home, and after Ella had 

put their child to bed, Diviney yelled at her, threw a plate at her, 

broke a Swiffer mop against the cupboards above her head, and 

again punched her in the face. Ella fled to the child’s room, 

where she spent the night listening to Diviney moving about in 

the living room and kitchen.

¶3 The next day, Diviney again began yelling at Ella, this 

time in front of their child. So Ella left their apartment, child in 

arm, to visit a nearby park. But Diviney followed, driving past 

the park multiple times. When the November air started getting 

cold, when no one answered the door at her father’s apartment, 

and when the dark of night approached, Ella returned home 

 

3. “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.” Layton City v. Carr, 2014 UT App 227, ¶ 2 n.2, 336 P.3d 

587 (cleaned up).
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and, finding herself without a phone or key, broke a window to 

get into their apartment.

¶4 When Diviney returned and became infuriated over Ella 

breaking the window, she told him she had no other choice and 

asked him to leave. Diviney left, but only long enough for Ella to 

put their child down for bed, leaving the bedroom door cracked 

open so she could hear the child while she smoked a cigarette. 

Soon, Ella saw Diviney arrive at the apartment carrying a 

baseball bat and she ran outside, screaming for Diviney “not to 

hurt her” and to leave. He left. Ella retreated to their apartment, 

but no sooner had she checked on the still-sleeping child, than 

Diviney returned, bat still in hand.

¶5 Diviney insisted to Ella that he returned only to light a 

fire to keep Ella and their child warm, and Ella told him he could 

stay “as long as he didn’t try to talk to her.” After only ten 

minutes, Diviney resumed berating Ella, and she walked up the 

staircase to leave—only to find her way blocked by a locked 

door. From behind her, Ella heard Diviney say “You’re not going 

anywhere.” He then “grabbed her by her hair, pulled her off her 

feet, and dragged her back down the stairs.” Breathless and on 

her knees, Ella tried to stand, but Diviney hit her head with the 

baseball bat. When Ella raised her arms in protection, Diviney 

hit her in the arm. And when Ella tried to stand again, Diviney 

hit her a third time.

¶6 In a daze, Ella asked for something to stop the blood now 

flowing from her head. In response, Diviney dragged her by the 

hair saying, “[F]ine, let’s go to the bathroom.” The tissue she 

used to stop the bleeding did not work, but when Ella insisted 

she needed medical care, Diviney slammed the bathroom door, 

telling Ella that she was not “going anywhere,” that she would 

“sit there and talk to” him, and that she had “destroyed [his] life 

and [he was] going to destroy” hers. If she did not answer his 

questions truthfully, he threatened to hit her again and use a 
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meat grinder to break her toes. Diviney interrogated Ella about 

her alleged infidelity, but Ella’s insistent denials only made him 

angrier. Ella recalled that she felt “[e]verything [she] said was 

just wrong” as far as Diviney was concerned. After being hit 

“multiple times again,” Ella played it safe and started to “agree[] 

with him.” Throughout the ordeal, Ella begged to check on their 

child to see if he was “hearing this,” but Diviney refused.

¶7 When Diviney finally took Ella out of the bathroom, he 

rebuffed her requests to check on their child and ultimately 

positioned himself (baseball bat in hand) between her and the 

door to the outside. “[Y]ou have to understand,” he said, “only 

one of us is getting out of here alive tonight and it’s not looking 

good for you.” Diviney became angrier and angrier, and when 

Ella asked if she could call someone, Diviney taunted, “[G]o, call 

someone,” but “[y]ou’ll be dead and I’ll be gone before they get 

here.” Suddenly, to Ella’s relief, Diviney (who had a history of 

heart problems) “leaned over, grabbed his chest,” sat down, and 

“passed out.”

¶8 Ella snuck past Diviney, collected their child, unlocked 

the door, and ran into the night without even pausing to put on 

shoes. She was visibly distressed when she stumbled into a gas 

station just after 3:00 a.m., bruises on her face, arms, leg, shin, 

and hip, and bleeding from the gash on her head. After 

responding police finally succeeded in calming her, she detailed 

much of what has been described.

¶9 Diviney, on his part, never reported Ella or their child 

missing, and when police visited the apartment, Diviney was 

nowhere to be found. The door was locked, but after forcing 

their way in, police found many things that corroborated Ella’s 

account. When police apprehended Diviney, he told a different 

story. According to Diviney, on that day he had come home 

from work to find Ella “making solicitation with the guy across 

the street,” and when he went into the apartment, another man 
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20190778-CA 5 2021 UT App 106

was in the bathroom. The man allegedly attacked Diviney with a 

baseball bat, hitting him “in the nose and knocking out some of 

his teeth.” When Diviney got the bat away from the intruder, he 

swung at the intruder’s head, but the intruder ducked, and 

Diviney “accidentally” hit Ella in the head. According to 

Diviney, when he offered to take Ella to the hospital, she 

refused, so Diviney went to bed, and when he woke, Ella and 

their child were gone.

¶10 Diviney swore this all resulted from Ella’s involvement in 

an ongoing prostitution ring. He alleged that she would leave 

“the [apartment] to go catch clients” and “used a coded system 

of lights to communicate with the rest of the ring.” Diviney 

reported that a minor “irritation” on his nose was actually a 

broken nose that resulted from being hit in the face with the bat, 

and although he initially denied knowing why the Swiffer mop 

was broken, he ultimately admitted that he had stomped on it 

and threw it because he was angry that Ella was “sleeping 

around with these guys.” Diviney maintained that Ella’s 

accusations were false and that she just wanted him in jail.

¶11 The State charged Diviney with aggravated kidnapping, 

aggravated assault, and commission of domestic violence in the 

presence of a child.

The Trial

¶12 At trial, defense counsel began by telling the jury that “at

the core” of the conflict was Ella’s “deep-seated fear . . . that she 

was going to lose her child.” This fear was “driven largely 

because [of] her history with drug use when the child was born,” 

a history that caused Child Protective Services to become 

involved because she had “admitted to using drugs during her 

pregnancy.” The idea behind this theory was that Ella had 

framed Diviney for domestic violence to prevent him from 

reporting her drug use to Child Protective Services. But later, 

Diviney chose not to testify, a choice that resulted in a lack of 
State v. Diviney

20190778-CA 6 2021 UT App 106

“evidence that [Ella] actually was using drugs at the time of the 

crime.” So defense counsel adjusted the approach, focusing 

primarily on Ella’s credibility, while leaving the door open to the 

drug-based theory.

¶13 While cross-examining Ella, defense counsel asked her 

about allegations that, in the months leading up to the abuse, 

Diviney found a methamphetamine pipe in Ella’s belongings 

and later confronted her when he found a syringe. Ella denied 

the allegations. When Ella testified that she did not “do drugs 

close in time to this incident,” defense counsel doubled down on 

the opportunity to question Ella’s credibility and to offer 

evidence of her drug use to support the defense’s original theory 

of the case. Defense counsel elicited testimony that she admitted 

to taking drugs during the Las Vegas trip, but Ella averred that 

“the only reason [she] did drugs is because [Diviney] threatened 

[her] to do the drugs.” When pressed on the issue and asked 

whether her testimony was that “the only time [she had] ever 

done drugs was that day,” she responded, “No, I’m saying 

there’s this incident that was those days. That was the only, for 

months and months that was the only time.”

¶14 Ella denied that she had obtained drugs on the Las Vegas 

trip, that she solicited men to obtain drugs for her, that drugs 

were the true basis for the arguments leading up to the abuse, 

that she had ever “been in any fear of losing” her child, and that 

she feared Diviney would report her to Child Protective Services 

for using drugs. As to using drugs during the Las Vegas trip, 

Ella testified,

I am absolutely ashamed . . . just ashamed 

completely. It’s not something that I do and so. It 

was just that, I mean, what I’m trying to say is that 

what happened, it only, even though it was only 

one time, I was ashamed of it. And so it was very 
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hard for me to bring it to you and talk to you. But I 

wanted to be 100 percent honest, so.

Defense counsel contended that this testimony had “opened the 

door to where [he] should [have been] able to impeach her” 

because she had testified that the incident in which Diviney 

allegedly forced her to use drugs was “[t]he only time” she had 

used drugs. Specifically, defense counsel proposed introducing 

criminal records from 2013 regarding “possession of psychotic 

chemicals,” as well as medical records from that May showing a 

positive methamphetamine test. Having limited his earlier 

references to drugs during his examination of Ella, defense 

counsel argued,

I was happy to confine myself. And I think the 

[c]ourt was fair in its rulings. But now she’s laid 

out something that’s completely not true and I 

think we have the right to walk through that door. 

And if she admits to the things I ask her, then so be 

it. We’ll move on. I don’t think we can go much 

further than that. But if she denies it, I would be 

asking that . . . we’d be able to introduce either the 

criminal history or the medical records to 

substantiate that [it] is, in fact, not true.

The State countered by arguing that Ella meant only that this 

was “the only time that [she] took drugs in the timeframe of 

[the] Las Vegas” trip. But the court agreed with defense counsel 

that the testimony “could have been confusing” and thus, 

allowed defense counsel “to get a clarification from her.”

¶15 After conferring with the court and the State about the 

language necessary to confine the clarification to that narrow 

issue, defense counsel ultimately asked Ella, “Are you saying 

that [the Las Vegas trip was] the only time that you have used 

illegal drugs?” To which Ella responded, “In my lifetime? No.” 
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20190778-CA 8 2021 UT App 106

In the end, defense counsel dropped the initial theory of the case, 

stating in closing that

[Ella is] lying, . . . she’s making it up. And frankly, I 

don’t know why and you don’t know why. But we 

don’t have to prove that. Some people like 

attention. Some people exaggerate. Some people, I 

don’t know, have ulterior motives. I don’t know, 

you don’t know why she may be lying, why she 

may be saying these things.

Not once during closing argument did defense counsel suggest 

that drug use provided Ella’s motive to lie about the abuse.

¶16 But before the trial ended, Diviney moved for a directed 

verdict on the count of domestic violence in the presence of a 

child. Diviney argued that the elements for that charge required 

that “there has to be at least some possibility that [a child] can, 

not just a possibility, but that the child is essentially a perceiving 

witness [of the domestic violence] in some way, shape, or form” 

and that this element could not be met in this case because the 

child was asleep. The trial court informed Diviney that it was 

“not aware” of “anything that suggests that if a child is present 

physically but is asleep that would make it that it would be 

improper,” and Diviney conceded that his argument relied on 

the statutory language. The State pointed out that the statutory 

language defining “in the presence of a child,” as referenced in 

the jury instructions, meant “having knowledge that a child is 

present and may hear, or may see, or hear an act of domestic 

violence.” (Emphasis added.) The trial court focused on the 

operative word “may” and denied the motion, determining that 

“the State ha[d] produced believable evidence . . . of the 

elements of the crime charged.”

¶17 Diviney appeals his subsequent convictions.
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20190778-CA 9 2021 UT App 106

ISSUES AND STANDARDS OF REVIEW

¶18 Diviney raises three issues for our consideration. First, he 

contends the trial court erred in denying his motion for a 

directed verdict on the charge for domestic abuse in a child’s 

presence. “We review the [trial] court’s denial of a motion for 

directed verdict for correctness,” and where Diviney “challenges 

the denial . . . based on the sufficiency of the evidence, the 

applicable standard of review is highly deferential,” and we 

“will uphold the [trial] court’s denial if, when viewed in the light 

most favorable to the State, some evidence exists from which a 

reasonable jury could find that the elements of the crime have 

been proven beyond a reasonable doubt.” State v. Barner, 2020 

UT App 68, ¶ 9, 464 P.3d 190 (cleaned up). Second, Diviney 

contends the trial court abused its discretion by excluding 

evidence Diviney proffered to impeach Ella. “We review the trial 

court’s admissibility determination for abuse of discretion.” State 

v. Gomez, 2002 UT 120, ¶ 12, 63 P.3d 72 (cleaned up). Third, 

Diviney contends that defense counsel rendered ineffective 

assistance in adjusting the defense strategy in response to the 

trial court’s ruling on the evidence. “An ineffective assistance of 

counsel claim raised for the first time on appeal presents a 

question of law.”

4 State v. Bowen, 2019 UT App 163, ¶ 15, 451 

P.3d 1050 (cleaned up).

 

4. Diviney also requests that we remand this case under Utah 

Rule of Appellate Procedure 23B for the purpose of entering into 

the record additional facts necessary to support another claim 

for ineffective assistance of counsel. “We grant such motions 

only upon a nonspeculative allegation of facts, not fully 

appearing in the record on appeal, which, if true, could support 

a determination that counsel was ineffective.” State v. Curtis, 

2013 UT App 287, ¶ 13, 317 P.3d 968 (cleaned up). “Fact 

allegations are insufficient unless the defendant presents this 

(continued...)
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20190778-CA 10 2021 UT App 106

ANALYSIS

I. Motion for Directed Verdict

¶19 Diviney contends the trial court erred in denying his 

motion for a directed verdict regarding domestic violence in the 

presence of a child because, he claims, insufficient evidence 

supported the charge. He asserts that each element of the statute 

cannot have been met because even though “Diviney knew that 

[the child] was in the apartment,” because the child was asleep, 

“Diviney did not know that [the child] could ‘see or hear an act 

 

(...continued)

court with the evidence [the defendant] intends to present on 

remand and explains how that evidence supports an ineffective 

assistance of counsel claim.” Id. ¶ 18 (cleaned up). Here, Diviney 

proposes to supplement the record with facts consisting of his 

medical documents from the day after the incident, which he 

asserts would have supported his story “that he and [Ella] were 

injured in a fight with an intruder.” While Diviney’s motion 

includes medical documents not included in the record, and 

although the findings reported on those documents may not be 

speculative, Diviney has not explained how this evidence 

supports an ineffective assistance of counsel claim because he 

does not show how defense counsel’s failure to introduce this 

evidence prejudiced his case. Diviney asserts that the medical 

documents provide physical evidence for his version of events, 

but he does not show how this is so. Specifically, Diviney has not 

pointed to any testimony offered at trial or proposed expert 

testimony that would connect his version of events to the 

findings listed in the medical documents. Without such a 

connection, any supposed effect this information would have on 

the jury is speculative, and therefore our “confidence in the 

outcome of the trial is [not] undermined.” See State v. Popp, 2019 

UT App 173, ¶ 58, 453 P.3d 657 (cleaned up).
State v. Diviney

20190778-CA 11 2021 UT App 106

of domestic violence.’” (Quoting Utah Code Ann. 

§ 76-5-109.1(1)(c)(ii) (LexisNexis 2017).)5In other words, 

Diviney’s argument concedes that the child was in a room in the 

apartment with the door slightly open but maintains that the 

uncontested fact that the child was sleeping means that the 

definition of “in the presence of a child” could not be satisfied.6

We disagree with Diviney’s interpretation of the statute and 

conclude that “some evidence exists from which a reasonable 

jury could find that the elements of the crime have been proven 

beyond a reasonable doubt.” See State v. Barner, 2020 UT App 68, 

¶ 9, 464 P.3d 190 (cleaned up).

¶20 “When interpreting statutory provisions, we first look to 

the plain language of the statute,” State v. Rincon, 2012 UT App 

372, ¶ 10, 293 P.3d 1142 (cleaned up), and “in so doing, we 

presume that the legislature used each word advisedly,” Scott v. 

Scott, 2017 UT 66, ¶ 22, 423 P.3d 1275 (cleaned up). If that 

language allows us to understand the legislature’s meaning, “no 

other interpretive tools are needed, and our task of statutory 

construction is typically at an end.” Id. (cleaned up). We 

conclude that to be the case here.

 

5. The statutory language in effect at the relevant time remains in 

effect today. Thus, we cite the current code for convenience.

6. In so doing, Diviney relies on In re K. D., 810 S.E.2d 193 (Ga. 

Ct. App. 2018), a case in which the court found that an incident 

of assault “took place outside the presence of the children, as the 

uncontradicted record showed that they were inside the house 

asleep” and the assault occurred outside of the house. Id. at 196. 

That case is easily distinguished from this case where the abuse 

occurred inside the same apartment in which the child slept with 

the door slightly open.
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20190778-CA 12 2021 UT App 106

¶21 Regarding domestic violence in the presence of a child, 

Utah Code section 76-5-109.1(1)(c) provides,

“In the presence of a child” means:

(i) in the physical presence of a child; or

(ii) having knowledge that a child is present 

and may see or hear an act of domestic 

violence.

Diviney concedes that the child “was asleep in his crib in his 

bedroom” with the door slightly open and that “the acts of 

domestic violence occurred in another room” in the same 

apartment. Thus, the focus rests on whether the language “may 

see or hear” includes a child who is asleep in a nearby room with 

the door open. See id. § 76-5-109.1(1)(c)(ii). We conclude that it 

does.7

¶22 Diviney asserts that Ella’s “testimony supported that [the 

child] could not see or hear any act of domestic violence because 

he was asleep during the entire incident.” However, his 

argument glosses over not only the statute’s use of the word 

“may,” but the trial court’s focus on that word as well. See id.

“The plain, ordinary, and accepted meaning of the word may is 

permissive or discretionary, generally indicating that an 

 

7. We also note that the parties appear to concede that the 

circumstances here do not fall within the definition in Utah Code 

section 76-5-109.1(1)(c)(i), and instead meaningfully discuss only 

whether this case falls within the scope of section 

76-5-109.1(1)(c)(ii). We, however, do not adopt the legal position 

espoused by the parties’ concession and we do not opine on 

whether section 76-5-109.1(1)(c)(i) applies here; instead we 

analyze only whether these circumstances fall within the scope 

of section 76-5-109.1(1)(c)(ii).
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20190778-CA 13 2021 UT App 106

individual is either permitted or has a possibility to do 

something.” Holmes Dev., LLC v. Cook, 2002 UT 38, ¶ 25, 48 P.3d 

895 (cleaned up) (emphasis added). The statute therefore 

requires that the jury determine only that a child was present 

and that a possibility existed that the child would or could hear 

or see the domestic violence. And to deny the motion for a 

directed verdict, the trial court needed to find only that some 

evidence existed that supported that element.

¶23 The State presented such evidence here. Ella testified that 

the child’s bedroom door was “cracked open” so she could 

“always hear” him. Moreover, because she had spent the night 

before with the child, behind a closed door, she was able to 

testify that even with the door closed, one could hear what was 

happening in other parts of the apartment. In addition, the mere 

fact that the testimony suggests that the child was asleep during 

the events does not eliminate the possibility that the child could 

have heard the abuse. At any moment the child could have 

woken up, either naturally or due to the commotion in the other 

room; or the child may have, in fact, woken up, heard the 

domestic violence, and returned to sleep without Diviney or Ella 

knowing; and we note that were it not for the fact that many 

human beings can hear while they are asleep, the ongoing use of 

sound-based alarms would remain an unexplained curiosity.

¶24 Here, the possibility existed that the child would hear the 

domestic violence happening just beyond his open bedroom 

door. As such, the trial court did not err in denying the motion 

for a directed verdict.

II. Exclusion of Evidence and Defense Counsel’s Adjustment

¶25 Diviney also contends that the trial court “abused its 

discretion when it did not appear to allow extrinsic evidence of 

[Ella’s] drug use” and that defense counsel rendered ineffective 

assistance in not impeaching Ella sooner, in not arguing “that the 

rules of evidence allowed him to impeach [Ella] with extrinsic 
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evidence” (and, to the extent that it constitutes invited error, in 

proposing an alternative strategy in light of the court’s ruling). 

But even assuming without deciding that the court erred and 

that defense counsel rendered deficient performance, each of 

these arguments falls short for the same reason: lack of 

prejudice. See, e.g., Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182 

(“Because failure to establish either prong of the test is fatal to an 

ineffective assistance of counsel claim, we are free to address [a 

defendant’s] claims under either prong.”); State v. Leech, 2020 UT 

App 116, ¶ 42, 473 P.3d 218 (noting that even if an error occurs, 

prejudice still must be shown).

¶26 “Utah law places the burden on the defendant to prove 

that a preserved error is harmful.” Leech, 2020 UT App 116, ¶ 43 

n.7; cf. Utah R. Crim. P. 30(a) (“Any error . . . which does not 

affect the substantial rights of a party shall be disregarded.”). 

Moreover, defendants bear the burden of showing that they 

have been prejudiced by counsel’s deficient performance. State v. 

Scott, 2020 UT 13, ¶ 43, 462 P.3d 350; cf. Utah R. Crim P. 30(a). 

For a preserved error, showing prejudice “requires a showing of 

a reasonable likelihood that the [alleged error] altered the jury 

verdict.” Leech, 2020 UT App 116, ¶ 43 (cleaned up). For 

ineffective assistance, showing prejudice requires “the defendant 

to demonstrate a reasonable probability that the outcome of [the] 

. . . case would have been different absent [the alleged] error.” 

Scott, 2020 UT 13, ¶ 43. Thus, where a defendant raises a 

preserved error argument and an ineffective assistance of 

counsel argument based on the same alleged issue, and we 

resolve the argument based on a lack of prejudice, we need 

undertake only a single analysis. See id.

¶27 As an initial matter, Diviney asserts that extrinsic

evidence of Ella’s drug use would have persuaded the jury that 

she was motivated to lie to prevent him from reporting her drug 

use to Child Protective Services. But although that may have 

been Diviney’s initial theory of the case, the State points out that 
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20190778-CA 15 2021 UT App 106

when Diviney decided not to testify, defense counsel 

“abandoned the drug-based theory” in favor of attacking Ella’s 

credibility. Without Diviney’s testimony about Ella’s “supposed 

drug use at the time of the crime,” no evidence supported that 

Ella was, in fact, using drugs at the time of the abuse, and 

evidence of a four-year-old criminal record for possession of 

“psychotic chemicals” and a months-old positive 

methamphetamine test does not fill that gap.

¶28 Moreover, when it appeared that Ella denied having used 

drugs generally, defense counsel received permission to follow 

up on that issue. After being asked whether this was the only 

time she had used drugs, Ella responded, “In my lifetime? No.” 

In other words, regardless of whether the court allowed specific 

extrinsic evidence, defense counsel made his main point: 

arguably contrary to her earlier testimony, Ella admitted she 

had, in fact, used drugs outside of the Las Vegas trip. Thus, 

Diviney obtained the same evidentiary posture he would have 

garnered had the extrinsic drug-use evidence been allowed; that 

is, he still succeeded in impeaching her testimony on this issue. 

And although Diviney argues that this admission “was no 

substitute for powerful evidence that [Ella] had used drugs in 

the past and recently,” we see these additional details as 

ultimately inconsequential in comparison to her admission that 

she had otherwise used drugs. We remain unpersuaded that this 

remote extrinsic evidence provided any more materially 

significant evidence than Ella herself had already provided 

when she testified.

¶29 And, even if the information had been allowed, we do not 

believe this would have made the difference Diviney asserts. 

According to Diviney, because “[t]he State’s case depended on 

[Ella’s] credibility,” all that was needed for the jury to “decide 

whether [Ella] was being truthful on the witness stand” was “[a] 

sufficient opportunity for the defense to impeach” her. But in his 

brief, Diviney has demonstrated many inconsistencies defense 
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20190778-CA 16 2021 UT App 106

counsel “sussed out” during Ella’s examination. Diviney asserts 

that during her examination, defense counsel elicited 

inconsistencies regarding the plate Diviney threw, the extent of 

Ella’s bleeding, the number of times Diviney hit her, their child’s 

location at different times, the timing of the abuse, and many 

other things. And yet, despite all these inconsistencies, Diviney 

maintains that the additional extrinsic drug-use evidence would 

have infused the case with sufficient doubt that the jury likely 

would have acquitted him. We remain unconvinced and 

conclude that among all the other inconsistencies, this additional 

drug-use evidence would not have likely tipped the scales in 

Diviney’s favor.

¶30 In light of Ella’s overarching admission regarding her 

drug use, a four-year-old criminal record or a months-old 

positive methamphetamine test were not reasonably likely to 

have changed the jury’s verdict. Accordingly, we conclude that 

any error regarding this evidence’s exclusion did not prejudice 

Diviney.

CONCLUSION

¶31 Some evidence supported the jury’s verdict, and thus the 

trial court properly denied Diviney’s motion for a directed 

verdict. Further, the court’s exclusion of the impeachment 

evidence and defense counsel’s adjustments in light of that 

ruling did not prejudice Diviney. Accordingly, we affirm.