558 P.3d 111
Utah Ct. App.2024Background
- Brandon Zimpfer was convicted of forcible sexual abuse and voyeurism after recording a video of himself touching and exposing his girlfriend while she appeared to be asleep.
- The girlfriend, pregnant at the time, alleged she was drugged by Zimpfer and had no memory of the incident; she later discovered the video and photos on her phone and reported them to police.
- The State's case relied heavily on the video, testimony from Girlfriend and investigating officers, and portions of Girlfriend's journal entries.
- Zimpfer argued at trial and on appeal that the evidence showed Girlfriend was awake and consented, and challenged the admissibility of certain testimony and documentary evidence.
- On appeal, Zimpfer also argued ineffective assistance of counsel for failing to exclude parts of the video and for not presenting expert testimony about his brain injury.
Issues
| Issue | Zimpfer's Argument | State's Argument | Held |
|---|---|---|---|
| Admissibility of Detective's testimony on consent | Detective's opinions invaded the jury's role and embraced a legal conclusion | Testimony was investigative impression, not a legal conclusion | Testimony admissible; not an abuse of discretion |
| Admission of Girlfriend’s journal entries | Entries do not qualify as prior consistent statements under rules of evidence | Entries rebut claimed motive to fabricate | Jan 21 entry admissible; Jan 23 entry admitted in error but harmless |
| Ineffective assistance—failure to exclude part of video | Video portion was more prejudicial than probative under Rule 403 | Portion of video was part of trial strategy to show Girlfriend was awake | No deficient performance; trial strategy was reasonable |
| Ineffective assistance—failure to present expert re: brain injury | Expert testimony was necessary to establish inability to access phone | Issue not contested; Zimpfer testified to limitations; strategy reasonable | No ineffective assistance; expert not required |
Key Cases Cited
- State v. Davis, 155 P.3d 909 (Utah Ct. App. 2007) (admissibility of testimony and ultimate issue opinions)
- State v. Green, 532 P.3d 930 (Utah 2023) (standards for prior consistent statements and motives to fabricate)
- State v. Brown, 447 P.3d 1250 (Utah Ct. App. 2019) (use of ordinary vs. legal meanings in lay/expert testimony)
- State v. Miller, 535 P.3d 390 (Utah Ct. App. 2023) (ineffective assistance legal standard)
- Strickland v. Washington, 466 U.S. 668 (1984) (standards for ineffective assistance of counsel)