State v. Collier

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

BACKGROUND 1

¶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 co-
worker (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 Co-
worker, 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 Co-
worker 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).

20190199-CA 2 2020 UT App 165
 State v. Collier

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 Co-
worker at trial. We address a claim of ineffectiveness, raised for

20190199-CA 3 2020 UT App 165
 State v. Collier

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.

20190199-CA 4 2020 UT App 165
 State v. Collier

¶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

20190199-CA 5 2020 UT App 165
 State v. Collier

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.

20190199-CA 6 2020 UT App 165
 State v. Collier

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.

20190199-CA 7 2020 UT App 165
 State v. Collier

¶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.

20190199-CA 8 2020 UT App 165
 State v. Collier

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.

20190199-CA 9 2020 UT App 165