2020 UT App 165

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

KELLY COLLIER,

Appellant.

Opinion

No. 20190199-CA

Filed December 10, 2020

Eight District Court, Vernal Department

The Honorable Samuel P. Chiara

Nos. 171800127 and 181800016

Emily Adams, Attorney for Appellant

Sean D. Reyes and Marian Decker, Attorneys

for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.

MORTENSEN, Judge:

¶1 Kelly Collier was convicted of sexual battery arising from 

an allegation that he groped a worker at a convenience store. His 

sexual battery conviction resulted in the entry of a previous 

conviction for attempted lewdness involving a child that had 

been held in abeyance. This opinion addresses the consolidated 

appeals of the two separate criminal convictions. Collier 

primarily challenges his sexual battery conviction, asserting 

ineffective assistance of counsel, and if successful, he asks us to 

vacate the attempted lewdness conviction. We affirm both

convictions.
State v. Collier

20190199-CA 2 2020 UT App 165

BACKGROUND1

¶2 On Christmas Day 2017, Collier entered the workplace of 

his then partner (Partner) to pick her up at the end of her 

morning shift at a convenience store. Thereafter, Partner’s coworker (Co-worker) arrived to replace Partner for the afternoon 

shift. As Co-worker spoke with Partner as part of the shift 

change-over, Collier approached and hugged Co-worker from 

behind for several seconds, during which time he groped her 

breasts. Co-worker broke free and retreated to the back office. 

Soon after, Co-worker exited the office and was again 

approached by Collier. Collier stood side-by-side with Coworker, draped his arm over her shoulders, and again groped 

her breast. Co-worker removed Collier’s arm, pushed him away, 

told him not to do that, and went to the front of the store to 

work.

¶3 Hours later, Co-worker received a text message from 

Partner suggesting future sex acts between Co-worker and 

Collier. Co-worker then disclosed the groping to her manager, 

and the manager called the police. The investigating officer 

interviewed Co-worker and retrieved security camera footage 

from the store. The officer also interviewed Collier, who 

admitted hugging Co-worker but denied groping her breasts. 

Collier was arrested and charged with one count of sexual 

battery.

¶4 At the preliminary hearing, the prosecution called Coworker to testify. Co-worker provided an account of the first 

groping incident. Questioning then shifted to another topic. At 

 

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

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

State v. Thompson, 2017 UT App 183, ¶ 2 n.3, 405 P.3d 892

(cleaned up).
State v. Collier

20190199-CA 3 2020 UT App 165

no time during the preliminary hearing was Co-worker asked or 

prompted to discuss the second groping incident.

¶5 At trial, the prosecution played the security video that

showed Collier hugging Co-worker from behind, but because of 

the camera’s angle, did not show where his hands were placed 

during the hug. Co-worker again testified that Collier had 

groped her breasts during the hug. The prosecutor also showed 

video of the second contact between Collier and Co-worker. The 

video showed that Collier draped his arm over Co-worker’s 

shoulders and placed his hand at least near her breast but again,

due to the angle and quality, did not conclusively show the 

placement of Collier’s hand. Co-worker then testified that Collier 

had touched her breast during that second contact. The jury 

convicted Collier of sexual battery.

¶6 In a previous and unrelated matter, Collier entered a 

guilty plea to a charge of attempted lewdness involving a child. 

At the time of the plea, the court agreed to hold that plea in 

abeyance on certain terms, including that Collier was not to 

violate any law during the term of the agreement. After Collier 

was convicted of sexual battery, the court found Collier had 

violated the terms of the abeyance agreement and entered the 

conviction for attempted lewdness involving a child.

¶7 Collier separately appealed his sexual battery conviction 

and his attempted lewdness conviction. Those appeals were 

consolidated into this appeal.

ISSUES AND STANDARDS OF REVIEW

¶8 Collier contends that his trial counsel rendered ineffective 

assistance of counsel by failing to properly cross-examine Coworker at trial. We address a claim of ineffectiveness, raised for 
State v. Collier

20190199-CA 4 2020 UT App 165

the first time on appeal, as a matter of law. See Layton City v. 

Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587.

¶9 Collier also requests a remand pursuant to rule 23B of the 

Utah Rules of Appellate Procedure for entry of findings of fact 

relating to a second claim of ineffective assistance challenging 

counsel’s decision not to call Partner as a witness at trial. See

Utah R. App. P. 23B(a). A rule 23B motion will be granted “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.” Id.

¶10 Collier further argues that if we reverse his conviction for 

sexual battery, we should also reverse the conviction entered on 

the attempted lewdness charge. Generally, “[w]e review a trial 

court’s decision to terminate a plea in abeyance agreement for an 

abuse of discretion.” State v. Wimberly, 2013 UT App 160, ¶ 5, 305 

P.3d 1072. We review any associated factual findings for clear 

error, see State v. Tripp, 2010 UT 9, ¶ 23, 227 P.3d 1251, and any 

legal conclusions for correctness, see State v Baker, 2010 UT 18, 

¶ 7, 229 P.3d 650.

ANALYSIS

I. 

¶11 Collier asserts that his trial counsel performed 

ineffectively by not using Co-worker’s preliminary hearing 

testimony, which mentioned only the first incident of groping, to 

impeach Co-worker at trial, during which she discussed both

incidents of groping. Collier argues the inconsistency was 

important given the jury’s reliance on Co-worker’s credibility 

due to the inconclusiveness of the security video. We conclude 

counsel’s assistance was not ineffective.
State v. Collier

20190199-CA 5 2020 UT App 165

¶12 “A convicted defendant’s claim that counsel’s assistance 

was so defective as to require reversal of a conviction . . . has two 

components.” Strickland v. Washington, 466 U.S. 668, 687 (1984). 

First, a defendant must establish that counsel’s performance was 

deficient—the proper measure being “reasonableness under 

prevailing professional norms.” Id. at 688; see also State v. Ray, 

2020 UT 12, ¶ 33, 469 P.3d 871. Second, a defendant must 

affirmatively show that the deficiency in counsel’s performance 

was prejudicial to the defense—demonstrating by “a probability 

sufficient to undermine confidence in the outcome” that “the 

result of the proceeding would have been different” absent the 

deficiency. Strickland, 466 U.S. at 692–94; see also State v. Scott, 

2020 UT 13, ¶ 43, 462 P.3d 350. However, “[t]here is no reason 

for a court deciding an ineffective assistance claim to . . . address 

both components of the inquiry if the defendant makes an 

insufficient showing on one.” Strickland, 466 U.S. at 697.

¶13 We resolve Collier’s claim using the first component of 

the inquiry and determine that his counsel was not deficient. 

Citing rule 801(d)(1)(A) of the Utah Rules of Evidence, which 

addresses statements that are not hearsay, Collier contends that 

if Co-worker’s testimonies were inconsistent, then it was 

unreasonable for his counsel to forgo using the preliminary 

hearing testimony to impeach Co-worker at trial. But a statement 

is inconsistent only if it contradicts or conflicts with another 

prior statement. See United States v. Coran, 589 F.2d 70, 76 (1st 

Cir. 1978) (agreeing that the “statement at trial was in fact 

inconsistent with [the witness’s] grand jury testimony” because 

it “directly contradict[ed] his statement to the grand jury”); Prior

Inconsistent Statement, Black’s Law Dictionary (10th ed. 2014) (“A 

witness’s earlier statement that conflicts with the witness’s 

testimony at trial.”). Here, Co-worker’s statements were not 

inconsistent.

¶14 During the preliminary hearing, Co-worker testified only 

regarding the first groping incident. Her testimony at the 
State v. Collier

20190199-CA 6 2020 UT App 165

preliminary hearing was given in response to lines of 

questioning employed by the prosecution and the defense. 

Neither the prosecution nor the defense inquired about the 

second incident during the preliminary hearing—perhaps 

because the State charged only a single count of sexual battery 

against Collier—and Co-worker, therefore, did not have 

occasion to discuss the second incident.2

¶15 At trial, Co-worker was asked to testify about the events 

depicted in the security video which included both incidents. 

Accordingly, Co-worker testified as to both at trial. Co-worker’s 

testimony at trial did not contradict or conflict with her 

testimony given at the preliminary hearing. She never indicated 

at the preliminary hearing that the second incident did not 

occur. Neither did she make any statement to suggest that the 

second incident occurred other than as described in her trial 

testimony. Rather, Co-worker provided additional details about 

Collier’s actions when requested. Therefore, there was no 

inconsistency.

¶16 Collier’s claim for ineffectiveness fails because there is no 

inconsistency between Co-worker’s testimonies, and therefore it 

was reasonable for counsel not to attempt to impeach Co-worker

 

2. In his reply brief, Collier asserts that Co-worker “was asked at 

the preliminary hearing” if there had been a second touching. 

But Collier misconstrues the testimony. In the cited section of the 

preliminary hearing testimony, Co-worker was asked whether 

Collier had “been this forward with [her] in the past” or “since.” 

In our view, those questions were aimed at eliciting testimony 

about whether Collier had ever behaved inappropriately toward 

Co-worker before that day, or after that day, but were not aimed 

at eliciting testimony about whether there was a second incident 

of touching on that day.
State v. Collier

20190199-CA 7 2020 UT App 165

using her preliminary hearing testimony through rule 

801(d)(1)(A).

II. 

¶17 Collier seeks remand under rule 23B of the Utah Rules of 

Appellate Procedure for entry of findings of fact relating to his 

claim of ineffective assistance for trial counsel’s decision not to 

call Partner as a witness at trial. We deny the motion.

¶18 A remand “will be available 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.” See Utah R. App. P. 23B(a). Even if Collier’s 

contention is true that Partner would testify that she watched 

Collier hug Co-worker but that he did not grope Co-worker’s 

breasts, it would not support a determination of ineffectiveness 

here. See Strickland v. Washington, 466 U.S. 668, 687 (1984) 

(requiring a showing of deficient performance and prejudice to 

prove ineffective assistance).

¶19 Prior to the trial, the court determined that if Partner 

testified, depending on what she said, the prosecution would be 

able to introduce the sexually charged text message that Partner 

sent to Co-worker as relevant to Partner’s credibility. Collier 

argues that counsel’s decision to forgo Partner’s testimony to 

ensure the text message remained excluded was deficient by 

asserting that the message was inadmissible under rule 608 of 

the Utah Rules of Evidence. But rule 608 is inapplicable here 

because it “does not apply to evidence used to directly rebut a 

witness’s testimony.” State v. Corona, 2018 UT App 154, ¶ 20, 436 

P.3d 174 (cleaned up). The text message bore on the credibility of 

Partner’s anticipated testimony and could have been used to 

directly rebut that testimony, not to prove her general character 

for truthfulness. See id. ¶ 21. Thus, the premise of Collier’s rule 

23B motion fails.
State v. Collier

20190199-CA 8 2020 UT App 165

¶20 Counsel’s decision to not call Partner to keep the text 

message out of evidence was therefore not ill-founded but 

reasonably based on the text message’s potential to rebut 

Partner’s testimony and to damage Collier’s defense. “If it 

appears counsel’s actions could have been intended to further a 

reasonable strategy, a defendant has necessarily failed to show 

unreasonable performance.” State v. Ray, 2020 UT 12, ¶ 34, 469 

P.3d 871. Accordingly, Collier would not be able to demonstrate 

ineffective assistance of counsel even with the benefit of a 

remand. Therefore, we deny the motion.3

III. 

¶21 Collier next argues that if we reverse his conviction for 

sexual battery, we should also reverse the conviction entered on 

the attempted lewdness charge. After Collier was convicted of 

sexual battery, the court found he had violated the terms of the 

plea in abeyance agreement which required that he “[wa]s to 

violate no laws during the term of agreement.” Resultantly, the 

court terminated the abeyance agreement and entered a 

conviction for attempted lewdness involving a child based on 

Collier’s previous guilty plea. But because we affirm Collier’s 

conviction for sexual battery, we conclude the court was within 

its discretion to terminate the agreement and enter a conviction 

on the attempted lewdness charge to which Collier pled guilty. 

See Utah Code Ann. § 77-2a-4(1) (LexisNexis 2017) (“If . . . the 

 

3. Collier also asserts that the cumulative errors of ineffective 

assistance of counsel, as articulated on appeal and separately in 

his rule 23B motion, warrant reversal. “We will reverse a jury 

verdict or sentence only if the cumulative effect of the several 

errors undermines our confidence that a fair trial was had.” State 

v. Martinez-Castellanos, 2018 UT 46, ¶ 39, 428 P.3d 1038 (cleaned 

up). Because we determine there was no error, there are no 

errors to cumulate and the doctrine is inapplicable. See id. ¶ 42.
State v. Collier

20190199-CA 9 2020 UT App 165

court finds that the defendant has failed to substantially comply 

with any term or condition of the plea in abeyance agreement, it 

may terminate the agreement and enter judgment of conviction 

. . . .”). Collier does not attack this conviction otherwise.

CONCLUSION

¶22 Because Collier did not receive ineffective assistance of 

counsel, we affirm Collier’s conviction for sexual battery. We 

also deny Collier’s rule 23B motion. Lastly, we affirm his 

conviction for attempted lewdness involving a child.