MEMORANDUM DECISION
T1 Azlen Adien Farquoit Marchet appeals his conviction for two counts of aggravated sexual assault, first degree felonies, see Utah Code Ann. § 76-5-405 (2008) (current ver *492 sion at id. § 76-5-405 (Supp.2012)). On appeal, Marchet argues that he received ineffective assistance from his trial counsel, that the trial court erroneously admitted evidence of prior bad acts under rule 404(b) of the Utah Rules of Evidence, and that the trial court erroneously determined that exceulpato-ry out-of-court statements Marchet made in a pretext telephone call were not admissible. We affirm.
I. Ineffective Assistance of Counsel
$2 Marchet raises several ineffective assistance of trial counsel arguments on appeal. He argues that his trial counsel was ineffective for failing to object to the majority of Nurse Practitioner Diane Fuller's testimony, for failing to object to the prosecutor's alleged misconduct, and for failing to object more enthusiastically to the mens rea jury instructions. "[When an ineffective assistance claim is first raised on direct appeal, this court can ... determine that the defendant was denied effective assistance of counsel [only] if it can do so as a matter of law." State v. Bair,
13 Marchet's first ineffectiveness claim centers on trial counsel's failure to object to Nurse Fuller's ability to testify as a lay witness because her testimony was based on her professional interpretation of Exhibit 17-a sexual assault examination report completed by Nurse Sandra Dunn after examining the complainant, A.H., hours after A.H. was raped-rather than her memory of being present during A.H.'s examination. See generally Utah R. Evid. 602 ("A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.... This rule does not apply to a witness's expert testimony under Rule 708."). While it does appear that Nurse Fuller's actual memories from AH.'s examination were minimal, Marchet's argument overlooks the fact that the trial court allowed Nurse Fuller to testify as an expert witness, not a lay witness. The State began its direct examination of Nurse Fuller by establishing that she has nearly thirty years of experience as a nurse practitioner with specializations in sexual assault nursing and forensic nursing. Marchet does not challenge Nurse Fuller's ability to testify as an expert witness or her ability to base that expert testimony on a review of Exhibit 17, which is exactly what Marchet's own expert witness did. See generally id. R. 708 ("An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed."). We are therefore unconvinced that an objection under rule 602 would have been anything but futile, and "[flailure to raise futile objections does not constitute ineffective assistance of counsel." State v. Kelley,
*493
14 Marchet also argues that trial counsel was ineffective for failing to object on foundational grounds to Nurse Fuller's testimony regarding "the incidence of injury during nonconsensual versus consensual sex." Again, instead of objecting, Marchet's trial counsel addressed this issue while cross-examining Nurse Fuller, eliciting several favorable admissions from her that clarified that her statements on this issue were based "purely" on her professional experience and not on any specific study or scientific data, and that she did not believe being injured during sex necessitated the presumption that the sex was not consensual. Addressing this issue on cross-examination was a reasonable trial strategy, especially in light of the fact that Nurse Fuller had already been qualified to testify as an expert witness and that the statements at issue were based on her own experience.
1
Cf. State v. Clark,
15 Next, Marchet argues that the prosecutor - committed - misconduct - by "foisting Nlurse Fuller ... onto the court, jury, and defense counsel, as having prepared [Exhibit 17] herself" and as "having an independent recollection" of participating in the sexual assault examination of A.H., when "all she was capable of doing was reading the report and drawing inferences based upon 'custom and practice'" Marchet contends that this misrepresentation by the State amounts to a suppression of exculpatory evidence. See Brady v. Maryland,
T6 While the State's initial disclosure of Nurse Fuller as one of its expert witnesses appears to have incorrectly described Exhibit 17 as a report she authored, we cannot say that such an error amounted to prosecutorial misconduct, especially where Marchet has not demonstrated how he was prejudiced by this misattribution; indeed, Marchet's trial counsel was not only aware of the misattribution several months before trial but also used it to attack Nurse Fuller's credibility on cross-examination. Additionally, we disagree with Marchet's characterization of Nurse Fuller's testimony on direct examination as misleading; it was clear that she was testifying as an expert and that her statements were based primarily on her expertise. Thus, the State's actions did not amount to prosecutorial misconduct, and trial counsel's failure to object on prosecutorial misconduct grounds was not ineffective assistance. See Kelley,
T7 As his last ineffectiveness argument, Marchet contends that his trial counsel's "tepid objection to the court's refusal to give his [proposed mens real jury instructions" amounted to ineffective assistance. Marchet concludes that instructions 37 and 88 are confusing and contradictory when read together and that this obvious flaw in the instructions amounted to such a glaring error by the trial court that had trial counsel objected with more gusto, the trial court was bound to recognize and correct the error of its ways, specifically by adopting Marchet's previously rejected proposals for the mens rea jury instruction. We, however, are not convinced that had Marchet's trial counsel objected more enthusiastically, the trial court would have reconsidered and reversed its decision on the jury instructions.
3
Cf. People v. Weatherspoon,
II. Rule 404(b) Evidence
18 Marchet next argues that the trial court erroneously admitted evidence of other bad acts under rule 404(b) of the Utah Rules of Evidence. See generally Utah R. Evid. 404(b)(2) (permitting evidence of a prior bad act to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident"). Specifically, Marchet contends that testimony from one rule 404(b) witness, P.C., was unwarranted because it was not similar enough to A.H.'s testimony and the testimony of the other rule 404(b) witness, SW., to support the permitted noncharacter purpose of demonstrating Marchet's intent, lack of consent, or modus operandi.
19 "[Wle review a trial court's decision to admit evidence under rule 404(b) . under an abuse of discretion standard[, and wle review the record to determine whether the admission of other bad acts evidence was scrupulously examined by the trial judge in the proper exercise of that discretion." State v. Mead,
10 Marchet contends that regardless of those similarities, P.C.'s testimony is inadmissible primarily because, unlike A.H. and S.W., P.C. experienced "a lesser sexual advance ... not amounting to aggravated sexual assault, rape or sodomy." We are hardly convinced that P.C.'s fortune of not having been raped or sodomized necessarily renders her testimony so different from the other witnesses as to remove her experience from the realm of admissible evidence under rule 404(b); P.C.'s testimony still remains indicative of intent, lack of consent, or modus operandi under rule 404(b). Marchet's claim that S.W.'s testimony was more probative under rule 404(b) and that P.C.'s testimony was therefore unnecessary, and the additional differences Marchet points out-the span of one-and-a-half years between P.C.'s allegations and the crime charged and the fact that *496 P.C. described Marchet as having fondled her breasts where the other women did not allege such-are also unavailing here. Accordingly, the trial court did not abuse its discretion in admitting her testimony.
III. The Pretext Call
T11 Last, Marchet argues that the trial court's refusal to admit his out-of-court exculpatory statements was in error. Specifically, Marchet contends that because he was unaware that the telephone call between him and A.H. days after the charged events was a scripted, recorded pretext call set up by the detective working on A.H.'s case (Detective), Marchet's statements during the call demonstrate his belief that A.H. had consented, which is the main theory of Marchet's defense 4 Marchet believes this evidence is admissible under rule 808(8) of the Utah Rules of Evidence, 5 which describes the present-sense exception to the rule against hearsay as
[al statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.
Utah R. Evid. 8088).
Hearsay evidence that shows a defendant's mental state prior to the commission of a crime is admissible under evidence rule 803(8) if (1) the statement was made under cireumstances that indicate its reliability and (ii) it is relevant to show intent, plan, motive, design, malice, or ill will when the defendant's state of mind is an issue in the case or (ii) it is relevant to prove or explain acts or conduct of the defendant.
State v. Dibello,
{12 Marchet's statements, made several days after the charged events occurred, do not amount to evidence of his state of mind as it existed during the encounter with A.H. Compare Shepard v. United States,
13 In conclusion, Marchet's trial counsel did not perform deficiently in his handling of Nurse Fuller's testimony, Exhibit 17, the prosecutor's conduct, and the mens rea jury instructions. The trial court was correct in permitting P.C. to testify under rule 404(b) and in excluding the pretext call evidence. Accordingly, we affirm. 6
WE CONCUR: GREGORY K. ORME, Judge and WILLIAM A. THORNE JR., Judge.
Notes
. Additionally, Marchet contends that trial counsel was ineffective for failing to object to Nurse Fuller's use of Exhibit 17 to refresh her memory, for failing to object to the admission of Exhibit 17, and for affirmatively requesting that the report comprising Exhibit 17 be admitted in full. Marchet further argues that Exhibit 17 amounted to "a 'testimonial document,' requiring for its introduction testimony of the author, or at the least, someone who participated in its preparation who had an actual memory of the event," in accordance with the Confrontation Clause of the Sixth Amendment, see U.S. Const. amend. VI. See generally Salt Lake City v. George,
. Specifically, Marchet argues that the alleged prosecutorial misconduct and ineffective assistance from his trial counsel combine to create an "explicitly recognized ... exceptional circumstance" that warrants reversal. He cites State v. King,
. Marchet merely quotes the text of instructions 37 and 38 and concludes that the trial court erred by giving those instructions. However, he seeks reversal not for the trial court's alleged error, but for his trial counsel's failure to object with more exuberance in light of this apparently obvious error. To the extent Marchet directly challenges the trial court's decision regarding the jury instructions for the first time in his reply brief, we decline to address it. See generally Allen v. Friel,
. The telephone call took place on June 11, 2003, and the aggravated sexual assault occurred early in the morning of June 8, 2003.
. Marchet also argues that the transcript of the pretext call is admissible under rule 106 of the Utah Rules of Evidence. See generally Utah R. Evid. 106 ("If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part-or any other writing or recorded statement-that in fairness ought to be considered at the same time."). Because Marchet has failed to preserve this issue, which was not raised until his motion for a new trial was filed, after filing his notice of appeal, we do not address it. See generally Utah R.App. P. 4(b)(2) ("A notice of appeal filed after announcement or entry of judgment, but before entry of an order disposing of any motion listed in Rule 4(b)[, including a motion for a new trial,] shall be treated as filed after entry of the order and on the day thereof, except that such a notice of appeal is effective to appeal only from the underlying judgment. To appeal from a final order disposing of any motion listed in Rule 4(b), a party must file a notice of appeal or an amended notice of appeal within the prescribed time measured from the entry of the order."). Additionally, Marchet asserts that the trial court's "[rlefusal to allow [him] to admit or utilize the [transcript of the pretext call] in cross-examination [of A.H. and Detective] was a denial of the Right of Confrontation under the Sixth Amendment which resulted in serious prejudice." Because of the manner in which we rule on this issue, we need not address this claim.
. We decline Marchet's invitation to revisit our earlier decision in Marchet I,