479 P.3d 351
Utah Ct. App.2020Background:
- On December 25, 2017, Collier hugged a convenience-store worker (Co-worker) twice during a shift change; Co-worker testified at trial that he groped her breasts on both occasions.
- Store security video showed the hugs but, due to camera angle/quality, did not conclusively show hand placement; Collier admitted hugging but denied groping.
- At the preliminary hearing, Co-worker testified only about the first hug; the second incident was not asked about and therefore not mentioned.
- Collier was convicted at trial of sexual battery; after that conviction the court terminated a prior plea-in-abeyance for attempted lewdness involving a child and entered judgment on that prior plea for violation of the abeyance term forbidding new crimes.
- Collier appealed the sexual battery conviction (arguing ineffective assistance of counsel) and sought remand under Utah R. App. P. 23B to develop a related ineffective-assistance claim; he also argued the entered attempted-lewdness conviction should be reversed if the sexual-battery conviction were reversed.
Issues:
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Collier) | Held |
|---|---|---|---|
| Whether counsel was ineffective for not using Co-worker’s preliminary-hearing testimony to impeach her trial testimony about a second groping | Failure to show counsel was deficient or prejudicial; testimony at preliminary hearing did not contradict trial testimony | Counsel should have impeached Co-worker with preliminary-hearing testimony to show inconsistency and undermine credibility | No ineffective assistance: no inconsistency existed because Co-worker never contradicted the existence of a second incident at the preliminary hearing |
| Whether remand under Rule 23B is required to develop a claim that counsel was ineffective for not calling Partner as a witness | Counsel’s strategic choice to avoid calling Partner was reasonable because the State could introduce a sexually charged text to rebut Partner, harming Collier | Partner would have testified that she saw hugs but not groping; counsel’s failure to call her was deficient | Rule 23B motion denied: allegation speculative and even if true it would not establish ineffective assistance because counsel’s decision was reasonable trial strategy |
| Whether the court erred in terminating the plea-in-abeyance and entering judgment on attempted lewdness after the sexual-battery conviction | Termination was within discretion because Collier violated the abeyance by committing sexual battery (a new offense) | If sexual-battery conviction were reversed, the abeyance termination and entered conviction should also be reversed | Affirmed: because sexual-battery conviction stands, court properly terminated abeyance and entered conviction |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part ineffective-assistance standard: deficient performance and prejudice)
- United States v. Coran, 589 F.2d 70 (1st Cir. 1978) (defines a prior inconsistent statement as one that contradicts trial testimony)
- State v. Ray, 469 P.3d 871 (Utah 2020) (standards for assessing counsel performance)
- State v. Corona, 436 P.3d 174 (Utah Ct. App. 2018) (rule 608 does not bar evidence used to directly rebut a witness’s testimony)
- State v. Wimberly, 305 P.3d 1072 (Utah Ct. App. 2013) (abuse-of-discretion review for terminating plea-in-abeyance)
- State v. Tripp, 227 P.3d 1251 (Utah 2010) (factual findings reviewed for clear error)
- State v. Martinez-Castellanos, 428 P.3d 1038 (Utah 2018) (cumulative-error doctrine)