2022 UT App 16

THE UTAH COURT OF APPEALS

PROVO CITY,

Appellee,

v.

MELVIN BILL BISHOP-GARCIA,

Appellant.

Opinion

No. 20190872-CA

Filed February 3, 2022

Fourth District Court, Provo Department

The Honorable Donald J. Eyre

No. 171404066

Emily Adams, Freyja Johnson, and Cherise M. 

Bacalski, Attorneys for Appellant

J. Brian Jones, Stephen H. Schreiner, and Matthew M. 

Griffiths, Attorneys for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which JUDGES JILL 

M. POHLMAN and RYAN M. HARRIS concurred.

HAGEN, Judge:

¶1 Our evidentiary rules prohibit “testimony as to a 

witness’s truthfulness on a particular occasion.” State v. Boyer, 

2020 UT App 23, ¶ 44, 460 P.3d 569 (cleaned up). In this case, 

Appellant Melvin Bishop-Garcia argues that he did not receive 

constitutionally effective assistance of counsel at trial because his 

attorney failed to object to such inadmissible testimony. We 

agree, vacate Bishop-Garcia’s convictions for unlawful detention 

and sexual battery, and remand for a new trial.
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BACKGROUND

¶2 The alleged crimes occurred at Bishop-Garcia’s home in 

Provo, Utah—a duplex located next door to the restaurant where 

his wife worked. The duplex had an external entrance leading to 

the basement, where the restaurant’s owner—also BishopGarcia’s landlord—stored ice for the restaurant’s soda machine. 

Every morning, restaurant employees would go to the basement 

to retrieve ice for the machine.

¶3 The owner’s family friend, Laura,1 worked at the 

restaurant with Bishop-Garcia’s wife. One morning, it was 

Laura’s turn to open the restaurant. After unlocking the doors, 

she went next door to the duplex, retrieved buckets of ice from 

the basement, then crossed the backyard on her way back to the 

restaurant. At this point, Bishop-Garcia emerged from the back 

door of the house and called to Laura, offering to help.

¶4 As for what happened next, the two provided conflicting 

accounts at trial. Laura testified that she declined the offer but 

that Bishop-Garcia invited her inside on the pretense that his 

wife wanted to speak with her. Thinking that the conversation 

would only last a moment, Laura followed Bishop-Garcia 

inside—ice buckets in hand—and waited near the back door 

while Bishop-Garcia called for his wife (who was not home). As 

they waited, Bishop-Garcia moved directly behind Laura and 

began “telling [her] that [she] looked pretty, and that [she] had 

lost weight.” He then grabbed her breast and buttocks.

¶5 Laura immediately turned to leave and, following a brief 

struggle at the door, managed to get outside. Bishop-Garcia 

chased after Laura, wrapped his arms around her from behind, 

and tried to kiss her on the cheek. Once again, Laura broke free 

and fled to the restaurant, where she locked the back door and 

 

1. A pseudonym.
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20190872-CA 3 2022 UT App 16

called the owner. Moments later, Bishop-Garcia entered through 

the front door, found Laura, and insisted that she “not . . . call 

the police because he was afraid of losing everything.” Laura 

testified that Bishop-Garcia remained “very persistent” until the 

owner arrived, at which point Bishop-Garcia exited the 

restaurant and met the owner outside.

¶6 Bishop-Garcia told a different story. He testified that 

Laura had accepted his help and that the two briefly embraced 

before going inside to talk “[a]bout anything.” Once inside, 

Bishop-Garcia told Laura that his wife was not home, after 

which Laura “changed her demeanor” and quickly returned to 

the restaurant. “In [Bishop-Garcia’s] mind,” he “was still 

helping” Laura, so he followed her there. He could tell that 

something was bothering Laura, so even when she locked the 

back door, Bishop-Garcia entered through the front and 

attempted to “calm her down.” According to Bishop-Garcia, 

Laura inexplicably threatened to call the police, and BishopGarcia returned home until the owner showed up.

¶7 Both testified that the owner arrived, spoke with each of

them, then called the police. The responding officer interviewed 

all three parties and decided to arrest Bishop-Garcia. Ultimately, 

Bishop-Garcia was charged with unlawful detention and sexual 

battery, and Laura, Bishop-Garcia, the owner, and the officer all 

testified at Bishop-Garcia’s jury trial. This appeal primarily 

concerns the owner’s and the officer’s respective testimonies. 

¶8 For his part, the owner testified about his conversation 

with Laura after arriving at the restaurant. The owner stated that 

Laura had been crying over the phone and that, when he 

arrived, Laura “was still upset.” She told him that Bishop-Garcia 

had touched her inappropriately, so the owner “decided to call 

the police right away.”

¶9 At trial, the prosecutor asked the owner, “Did you believe 

[Laura’s] story?” The owner replied, “I did.”
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¶10 The officer also testified about his conversations with 

Laura that morning. The prosecutor asked the officer, “When 

you heard [Laura’s] story, did it make sense to you?” The officer 

said, “It did.” The prosecutor then asked, “Did you find [Laura] 

to be credible?” The officer replied, “Yes.” The officer explained 

that he believed Laura because “[h]er story was consistent” each 

time he asked her to recount it.

¶11 Later, the officer testified about his interactions with 

Bishop-Garcia that same morning. The prosecutor asked, “What 

were some of the factors that went into your determination to 

arrest the defendant?” The officer responded, “[T]he credibility 

that I felt with [Laura’s] statement being a consistent statement, 

not changing. The inconsistencies in [Bishop-Garcia’s] 

statement[s] . . . .”

¶12 At no point did defense counsel object to the foregoing 

portions of testimony.

¶13 During closing arguments, the prosecutor framed the case 

as “a he-said, she-said case . . . [b]ecause there were only two 

people in the house and there were only two people that were 

there witnessing [the] conduct.” Near the end of rebuttal closing 

argument, the prosecutor said,

[Laura] was telling a true story. [The owner] 

believed her and the [officer] believed her . . . . It 

doesn’t matter if they believed her; it matters if you 

believed her. But the fact that they believed her 

and the fact that they testified that she was so 

emotional, that should lead you to consider, do 

you agree with . . . their assessment or do you not?

¶14 The jury found Bishop-Garcia guilty on both counts. 

Bishop-Garcia now appeals.
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ISSUE AND STANDARD OF REVIEW

¶15 Bishop-Garcia contends that trial counsel rendered 

constitutionally ineffective assistance by failing to object when 

the prosecution’s witnesses offered opinions about Laura’s and 

Bishop-Garcia’s truthfulness on the morning of the alleged 

crimes. “We evaluate this as a question of law because it is raised 

for the first time on appeal with no lower court ruling to 

review.” State v. Bozarth, 2021 UT App 117, ¶ 20, 501 P.3d 116

(cleaned up).

ANALYSIS

¶16 “To prevail on a claim of ineffective assistance of counsel, 

a defendant must show (1) ‘that counsel’s performance was 

deficient,’ and (2) ‘that the deficient performance prejudiced the 

defense.’” State v. Calvert, 2017 UT App 212, ¶ 21, 407 P.3d 1098 

(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). We 

assess whether Bishop-Garcia received ineffective assistance 

within this framework.

I. Deficient Performance

¶17 To establish deficient performance, defendants “must 

show that trial counsel’s ‘representation fell below an objective 

standard of reasonableness’ when measured against prevailing 

professional norms.” Honie v. State, 2014 UT 19, ¶ 32, 342 P.3d 

182 (quoting Strickland, 466 U.S. at 687–88). Defendants must 

“overcome the presumption that . . . the challenged action might 

be considered sound trial strategy.” Strickland, 466 U.S. 668, 689

(1984) (cleaned up). Even if there was no strategic reason for 

forgoing an objection, we must consider whether “correcting the 

[purported] error was sufficiently important under the 

circumstances that failure to do so was objectively 

unreasonable—i.e., a battle that competent counsel would have 

fought.” State v. Ray, 2020 UT 12, ¶ 32, 469 P.3d 871.
Provo City v. Bishop-Garcia

20190872-CA 6 2022 UT App 16

¶18 When analyzing deficient performance, we often begin by 

determining whether an error occurred that counsel failed to 

correct. See State v. Makaya, 2020 UT App 152, ¶ 9, 476 P.3d 1021 

(“[T]he failure of counsel to make motions or objections which 

would be futile if raised does not constitute ineffective 

assistance.” (cleaned up)). Accordingly, here, we begin by 

assessing whether Bishop-Garcia has identified instances of

inadmissible testimony to which counsel could have properly 

objected. Because we conclude that an objection was merited in

each instance, we next determine whether doing so was “a battle 

that competent counsel would have fought.” See Ray, 2020 UT 

12, ¶ 32. Given that the challenged testimony concerns the 

central issue in this case, we conclude that it was objectively 

unreasonable for counsel not to object.

A. The Prosecution’s Evidence Was Objectionable.

¶19 Bishop-Garcia identifies three instances of testimony he 

argues were inadmissible under rule 608(a) of the Utah Rules of 

Evidence: (1) the owner’s statement that he believed Laura’s 

story, (2) the officer’s statement that he found Laura credible, 

and (3) the officer’s explanation for why he decided to arrest 

Bishop-Garcia.2 We agree that the prosecution elicited 

inadmissible testimony in each of the three instances.

 

2. Bishop-Garcia also challenges his convictions based on trial

counsel’s failure to object to statements the officer made 

regarding his method for assessing credibility, which BishopGarcia argues was impermissible expert testimony. See State v. 

Rammel, 721 P.2d 498, 500–01 (Utah 1986) (holding that 

detective’s testimony about another witness’s truthfulness 

“[b]ased on his experience interviewing several hundred 

criminal suspects” was inadmissible expert opinion); State v. 

Valdez, 2021 UT App 13, ¶ 55, 482 P.3d 861 (declaring improper 

(continued...)
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¶20 Under rule 608(a), “[a] witness’s credibility may be 

attacked or supported by testimony about the witness’s 

reputation for having a character for truthfulness or 

untruthfulness.” Utah R. Evid. 608(a). The rule “permits 

testimony concerning a witness’s general character or reputation 

for truthfulness or untruthfulness,” State v. King, 2010 UT App 

396, ¶ 44, 248 P.3d 984, but “bars direct testimony regarding the 

truthfulness of a witness on a particular occasion,” State v. 

Adams, 2000 UT 42, ¶ 14, 5 P.3d 642 (cleaned up). This ensures 

that credibility determinations remain “the exclusive province of 

the jury.” See State v. Lewis, 2020 UT App 132, ¶ 21, 475 P.3d 956.

¶21 Here, the testimony that Bishop-Garcia has identified was 

inadmissible under rule 608(a) because, in each instance, the 

witness testified about another’s truthfulness on a particular 

occasion. First, the prosecutor asked the owner whether he 

“believe[d] [Laura’s] story” after speaking with Laura on the 

phone and at the restaurant. By responding affirmatively, the 

owner directly opined on Laura’s truthfulness on those 

occasions. Second, the prosecutor similarly asked the officer 

whether he had found Laura “to be credible” when he 

interviewed her on scene. The officer said, “Yes.” Like the 

owner, the officer thereby offered a direct opinion on whether 

Laura was being truthful with him on the specific occasion when 

she reported the alleged crimes.

 

(...continued)

an officer’s testimony that he was “a sort of human lie detector”), 

cert. granted, 496 P.3d 715 (Utah 2021). But because we determine 

that Bishop-Garcia received ineffective assistance based on 

counsel’s failure to object to other testimony, we need not reach 

the issue of whether counsel rendered ineffective assistance by 

failing to object to this additional testimony.
Provo City v. Bishop-Garcia

20190872-CA 8 2022 UT App 16

¶22 Finally, the officer testified that he arrested Bishop-Garcia 

based on a determination that Laura’s statement was more 

credible than the statement that Bishop-Garcia provided. When 

asked why he arrested Bishop-Garcia, the officer explained that, 

unlike Laura’s statement, which was “consistent” and “not 

changing,” Bishop-Garcia’s statement had “inconsistencies.”

Merely observing that a witness’s statements are consistent does 

not necessarily amount to bolstering. Compare Adams, 2000 UT 

42, ¶¶ 19–20 (holding that rule 608(a) barred testimony that 

victim’s account was not only “consistent,” but also did not 

appear coached), and State v. Bragg, 2013 UT App 282, ¶ 31, 317 

P.3d 452 (holding that it was “obvious error” to admit testimony 

that the victim was not only “consistent” but also “genuine and 

did not appear to have been coached”), with State v. Bair, 2012 

UT App 106, ¶ 47, 275 P.3d 1050 (holding that rule 608(a) 

permitted the witness’s testimony that the victim’s “trial 

testimony was consistent with the allegations she made during 

[a prior] interview”). Here, however, the officer did not merely 

state that Laura’s account was consistent; he indicated that, after

interviewing both Laura and Bishop-Garcia at the scene, he 

made the decision to arrest Bishop-Garcia based on his 

assessment of Bishop-Garcia’s story relative to Laura’s. Thus, in 

context, the officer gave “the equivalent of an affirmative 

statement that” Bishop-Garcia was being untruthful when he 

interviewed him that morning. See Adams, 2000 UT 42, ¶ 13.

Therefore, we have no difficulty concluding that each instance of 

testimony merited an objection under rule 608(a).

B. Trial Counsel’s Failure to Object Constitutes Deficient 

Performance.

¶23 Under the circumstances of this case, trial counsel’s 

failure to object to each instance of testimony that Bishop-Garcia 

has identified was objectively unreasonable. We reach that 

conclusion for several reasons. 
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20190872-CA 9 2022 UT App 16

¶24 First, the testimony at issue was obviously inadmissible. 

Our case law is rich with examples of rule 608(a) in action. See

State v. Jones, 2020 UT App 161, ¶¶ 15–17, 478 P.3d 1055 

(discussing cases). And we find it particularly persuasive that 

the admission of similar testimony has been held to constitute

not just error, but plain error. In State v. Hoyt, 806 P.2d 204 (Utah 

Ct. App. 1991), for example, we held that the admission of expert 

testimony that a child sexual abuse victim was “truthful in her 

allegations” was plainly erroneous, violating a “time-honored 

principle of evidence.” Id. at 210–11 (cleaned up). In State v. 

Adams, 955 P.2d 781 (Utah Ct. App. 1998), we concluded—and 

the State conceded on appeal—that a detective’s testimony that 

he “did not believe [the victim] had been coached” obviously 

violated rule 608(a). Id. at 785–86. And in State v. Cegers, 2019 UT 

App 54, 440 P.3d 924, we held that a counselor’s testimony that 

the victim would not have fabricated the sexual abuse 

allegations to get a scholarship was indistinguishable “from the 

impermissible bolstering we have previously deemed to be 

plainly inadmissible.” Id. ¶ 30. Thus, it should have been 

apparent to counsel that the testimony was not merely 

inadmissible, but plainly so. 

¶25 Second, counsel had ample opportunity to object and 

prevent the error. This was not a situation in which the owner 

and the officer spontaneously volunteered an inadmissible 

opinion, such that counsel had to weigh the “risk of drawing 

attention to unfavorable testimony” by objecting. See State v. 

Tippets, 2021 UT App 137, ¶ 29 (cleaned up). Instead, the 

prosecution overtly elicited each instance of inadmissible 

testimony. The prosecutor asked the owner, “Did you believe 

[Laura’s] story?” Similarly, the prosecutor asked the officer, “Did 

you find [Laura] to be credible?” Those questions were 

obviously improper and should have prompted an immediate

objection before the jury heard the inadmissible response.

Reasonable counsel would have also anticipated that asking the 

officer about the factors that went into arresting Bishop-Garcia 
Provo City v. Bishop-Garcia

20190872-CA 10 2022 UT App 16

would similarly call for inadmissible testimony about the 

relative credibility of Laura and Bishop-Garcia because, based on 

the nature of the alleged crimes, their respective statements were 

the only evidence on which the officer could have relied in 

determining that a crime had occurred.

¶26 Without disputing that the testimony was plainly 

inadmissible, Provo City suggests on appeal that objectively 

reasonable counsel could have nonetheless chosen not to object 

as a matter of trial strategy. Specifically, Provo City argues that 

“opinions about [Laura’s] consistency and Bishop-Garcia’s 

inconsistency” allowed counsel to “point out counterexamples” 

during closing arguments, including “possible inconsistencies 

in” Laura’s trial testimony. We “indulge a strong presumption 

that counsel’s conduct falls within the wide range of reasonable 

professional assistance.” Strickland v. Washington, 466 U.S. 668, 

689 (1984). Where we can attribute “the challenged action” to “a 

sound trial strategy, it follows that counsel did not perform 

deficiently.” State v. Scott, 2020 UT 13, ¶ 35, 462 P.3d 350 (cleaned 

up). 

¶27 But a purported strategy only justifies counsel’s error if 

the strategy was reasonable; “[a]n objectively unreasonable trial 

strategy will not suffice.” State v. Ray, 2020 UT 12, ¶ 34 n.7, 469 

P.3d 871. The strategy suggested by Provo City relates only to 

the third instance, in which the officer testified that he arrested 

Bishop-Garcia because Laura’s statement was consistent as 

compared to Bishop-Garcia’s. Such a strategy does not explain 

why counsel did not object to the first two instances in which 

witnesses were asked directly whether they believed Laura. 

Moreover, to cast doubt on Laura’s credibility, it was not 

necessary to allow the officer to offer his opinion that Laura’s 

story was more consistent than Bishop-Garcia’s. Even if the 

inadmissible testimony was excluded, trial counsel was still free 

to point out alleged inconsistencies in Laura’s statement, both on 

Laura’s cross-examination and in closing argument. Allowing 
Provo City v. Bishop-Garcia

20190872-CA 11 2022 UT App 16

the officer’s plainly inadmissible opinion on the parties’ relative 

credibility gained nothing for the defense and was not part of a 

reasonable strategy. 

¶28 Finally, the issue “was sufficiently important under the 

circumstances that counsel’s failure to” object was objectively 

unreasonable. See id. ¶ 32. The testimony concerned the central 

issue in the case: Laura’s credibility versus Bishop-Garcia’s. As 

the prosecutor acknowledged in closing argument, this was a 

“he-said, she-said case.” There was no corroborating evidence of

the alleged crimes. There were no other witnesses and no 

physical evidence. Under such circumstances, it was objectively 

unreasonable for trial counsel to voice no objection to testimony 

regarding whether Laura or Bishop-Garcia had been truthful on 

the morning of the alleged crimes.

¶29 In sum, the testimony at issue was obviously inadmissible 

under well-established law and forecasted by plainly 

objectionable questions posed by the prosecution. We cannot 

conceive of a reasonable trial strategy to account for counsel’s 

failure to object on each occasion. Provo City suggests that the 

admission of the testimony allowed the defense to poke holes in 

Laura’s story, but that strategy was not furthered by—much less 

dependent on—the admission of the improper testimony. And 

because it was objectively unreasonable not to object to improper 

bolstering where the case hinged entirely on relative credibility, 

we determine that counsel rendered deficient performance.

II. Prejudice

¶30 “An error by counsel, even if professionally unreasonable, 

does not warrant setting aside the judgment of a criminal 

proceeding if the error had no effect on the judgment.” Strickland 

v. Washington, 466 U.S. 668, 691 (1984). Rather, the defendant

must also “demonstrate a reasonable probability that the 

outcome of his or her case would have been different absent 

counsel’s error.” State v. Scott, 2020 UT 13, ¶ 43, 462 P.3d 350. 
Provo City v. Bishop-Garcia

20190872-CA 12 2022 UT App 16

Here, we ask whether there is a reasonable probability that the 

jury would not have convicted Bishop-Garcia, absent the 

inadmissible testimony.

¶31 Bishop-Garcia frames this case as a “credibility contest,” 

in which the key issue before the jury was whether it believed 

Laura over Bishop-Garcia. (Quoting State v. J.A.L., 2011 UT 27, 

¶ 41, 262 P.3d 1.) In Bishop-Garcia’s view, had the inadmissible 

testimony been excluded, “there is a reasonable probability that 

the jury would have found in [his] favor.” 

¶32 Provo City disagrees with Bishop-Garcia’s 

characterization of the case, arguing that “a great deal of 

additional evidence supported the jury’s verdict.” Provo City

points to undisputed testimony that Bishop-Garcia’s wife was 

not home when Bishop-Garcia invited Laura inside, that Laura 

took the ice buckets inside, that Bishop-Garcia complimented 

Laura on her looks, and that Bishop-Garcia closed the door 

behind her. It also directs us to instances where Bishop-Garcia 

“contradicted himself,” and to evidence of how emotional Laura 

appeared on the morning of the alleged crimes. But none of this 

evidence, alone or in combination, supports that a crime 

occurred. “In this case, there was no confession, no third-party 

eyewitnesses, and no physical evidence that [Laura] had been 

sexually abused; the only direct evidence that abuse occurred 

was [Laura’s] testimony.” See State v. Burnett, 2018 UT App 80, 

¶ 39, 427 P.3d 288. 

¶33 If believed, Laura’s testimony, standing alone, is 

unquestionably enough to support the jury’s verdict. And it is 

clear that, in returning a guilty verdict, the jury did believe 

Laura’s testimony. But there is a reasonable probability that the 

jury might have reached a different conclusion but for the 

inadmissible testimony. The jury, tasked with determining 

which person was telling the truth, heard testimony that both 

the owner, who knew Laura personally, and the officer, who 
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20190872-CA 13 2022 UT App 16

claimed to have specialized training and experience assessing 

credibility, believed Laura’s story. It may be that the jury would 

have believed Laura’s testimony even without the improper 

bolstering, but given the importance of the credibility 

determination and the absence of corroborating evidence, the 

error undermines our confidence in the verdict.3

¶34 We are particularly troubled by the fact that the 

prosecution relied heavily on the inadmissible testimony during 

closing arguments. In rebuttal, the prosecutor emphasized that 

both the owner and the officer believed Laura’s side of the story. 

And despite advising the jury that “[i]t doesn’t matter if they 

believed her,” the prosecutor immediately doubled-back. The 

prosecutor closed the argument by saying, “[T]he fact that [the 

owner and the officer] believed her and the fact that they 

testified that she was so emotional, that should lead you to 

consider, do you agree with . . . their assessment or do you not?” 

The emphasis placed on the impermissible testimony in the 

prosecutor’s final words to the jury further undermines our 

confidence in the outcome.

¶35 Nonetheless, Provo City argues that the inadmissible 

testimony was harmless because “it was quite obvious under the 

 

3. Because sex crimes often lack corroborative evidence and 

“hinge[] on [the jury’s] assessment of the victims’ credibility” 

over that of defendants, bolstering errors are more likely to be 

prejudicial in such cases. See State v. Cegers, 2019 UT App 54, 

¶ 37, 440 P.3d 924; see, e.g., id.; State v. Stefaniak, 900 P.2d 1094 

(Utah Ct. App. 1995); State v. Iorg, 801 P.2d 938 (Utah Ct. App. 

1990). We are mindful that a trial on allegations of sexual abuse 

can be deeply traumatic for victims and defendants, and no less 

the second time around. It is therefore incumbent on prosecutors 

not to elicit such testimony at trial—and on defense counsel to 

object when it occurs—to avoid necessitating retrial.
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circumstances what [the owner and the officer] believed, even 

without their direct testimony confirming it.” It asserts that the 

owner was a friend of Laura’s and, therefore, was inevitably 

going to believe her; and the fact that the officer decided to arrest 

Bishop-Garcia implicitly suggested that he credited Laura’s story 

over Bishop-Garcia’s. Where it would have been obvious to the 

jury that the testifying witness believed the other witness’s story, 

we have sometimes found no prejudice when incidental 

bolstering testimony is offered by a lay witness. See, e.g., State v. 

King, 2010 UT App 396, ¶ 46, 248 P.3d 984 (holding that “any 

incidental bolstering by the grandmother was harmless” where 

“it would come as no real surprise to the jury that she believed 

her granddaughter”); State v. Nunes, 2020 UT App 145, ¶ 23, 476 

P.3d 172 (“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 . . . .” (cleaned up)). But here the testimony 

was not incidental. Both the owner and the officer were directly 

asked to opine on Laura’s credibility, and that testimony was 

subsequently highlighted in the prosecution’s closing argument. 

In addition, by asking the officer to explain why he had arrested 

Bishop-Garcia, the prosecution elicited a comparison between 

the truthfulness of Laura’s and Bishop-Garcia’s statements. That 

testimony followed a description of the officer’s training and his 

methods for assessing credibility. The patina of expert testimony

further distinguishes the officer’s inadmissible testimony from 

the type of off-hand remark by a family member that this court 

has deemed to be harmless. See, e.g., King, 2010 UT App 396, 

¶ 46; Nunes, 2020 UT App 145, ¶ 23.

¶36 Provo City further argues that several of the jury 

instructions cured the harm caused by the inadmissible 

testimony. We find nothing in these instructions directing the 

jury to set aside the owner’s or the officer’s objectionable 
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statements. On the contrary, the instructions encouraged the jury 

to consider each witness’s testimony and to give that testimony 

whatever weight it believed it deserved. And although the jury 

was instructed not to give the testimony of law enforcement 

undue weight, the jury was never instructed to disregard the 

officer’s inadmissible testimony assessing the truthfulness of 

Laura’s and Bishop-Garcia’s statements.

¶37 Given the prominence of the inadmissible testimony and 

the importance of credibility in this case, Bishop-Garcia has 

demonstrated a reasonable probability of a different outcome if 

counsel had prevented the error. See State v. Knight, 734 P.2d 913, 

920 (Utah 1987) (“[C]onfidence in the outcome may be 

undermined at some point substantially short of the ‘more 

probable than not’ portion of the spectrum.”). Therefore, he is 

entitled to a new trial.

CONCLUSION

¶38 We conclude that the prosecution’s witnesses offered 

inadmissible testimony regarding Laura’s and Bishop-Garcia’s 

truthfulness on the morning of the alleged crimes. Because this 

case hinged on whether the jury believed Laura versus BishopGarcia, trial counsel rendered deficient performance by failing to 

object to such testimony and counsel’s failure prejudiced BishopGarcia’s defense. Therefore, we hold that Bishop-Garcia received 

ineffective assistance of counsel, vacate his convictions, and 

remand for a new trial.