State v. Raheem

2024 UT App 29

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
NAWAF RAHEEM,
Appellant.

Opinion
No. 20200720-CA
Filed March 7, 2024

Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 151910845

Freyja Johnson, Emily Adams, and Hannah
Leavitt-Howell, Attorneys for Appellant
Sean D. Reyes and Marian Decker,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.

ORME, Judge:

¶1 Nawaf Raheem challenges his conviction for aggravated
sexual assault on several grounds. He contends that the State
provided insufficient evidence at trial to support the mens rea
element of the crime. He also argues that his trial attorney
(Counsel) was constitutionally ineffective by failing to investigate
and call a witness to testify in his defense. Relatedly, he seeks
reversal “in the interests of fairness” based on our recent reversal
of his co-defendant’s conviction on an ineffective assistance of
counsel claim. Lastly, he argues that improper statements from
the State and inadmissible testimony from its witnesses prevented
him from receiving a fair trial. We affirm.
 State v. Raheem

BACKGROUND 1

¶2 One night in October 2012, Shannon 2 and a coworker
(Coworker) visited a hookah lounge that they frequented. The
hookah lounge was “a big party place” at which people would
smoke hookah, listen to music, and dance. There, Shannon and
Coworker were joined by another friend (Friend) and Shannon’s
then-boyfriend. Raheem, the owner of the hookah lounge, and
Kevin Salazar, a regular customer, were also there that night.
Shannon considered both Raheem and Salazar to be her friends.

¶3 At trial, Shannon testified that Salazar, who looked as if he
had been crying, asked her to join him in a storage closet to talk.
She stated that he shut the door behind her and began kissing her
neck. Shannon told Salazar to stop, that she had a boyfriend, and
that she “didn’t want to be in there,” but he was undeterred.

¶4 Because it had been “a minute,” Friend went to look for
Shannon. She knocked on the storage closet door and tried to
enter, but the door was locked. Raheem, who had also been
standing outside the storage closet, then knocked on the door.
Salazar opened the door for him, and Raheem “slid” inside. One
of the men locked the door behind Raheem, leaving Friend
outside and unable to enter. Friend testified that she then “just
started banging on the door.” At one point after Raheem entered,
Friend heard Shannon say, “Help me.” 3

1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

2. A pseudonym.

3. Friend initially testified that Raheem was still in the hallway
when she heard Shannon say, “Help me.” But on
(continued…)

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 State v. Raheem

¶5 Shannon testified that when she heard Raheem knock on
the door, she thought she “was going to be able to walk out of that
room” and that Raheem would “stop the situation.” But instead
of helping Shannon, Raheem pushed her against Salazar, bent her
over, pulled down her pants, and vaginally penetrated her with
his penis. At the same time, Salazar removed his pants and
inserted his penis into her mouth. Shannon did not “agree[] to
what was going on,” but she could not recall whether she said
anything.

¶6 Shannon next recalled them all being on the ground, with
her on top of Salazar and Raheem behind her. Salazar “was
having sex vaginally and [Raheem] was anally.” She again could
not remember whether she said anything at that point. While
doing this, the men “high fived” each other and Salazar said,
“Double penetration.” At some point, they also removed
Shannon’s bra, leaving her “basically nude.”

¶7 When Shannon heard Friend “banging on the door” and
“yelling” “something about a key,” she began to cry, and Salazar
and Raheem stopped assaulting her. Shannon then dressed, ran
out of the storage closet, and left the hookah lounge. 4

¶8 Friend estimated that approximately five minutes had
passed between when she began “banging on the door” and when
Shannon exited the closet. Friend pursued Shannon, briefly
returning to the hookah lounge to retrieve Shannon’s purse and
keys, and the two left. Friend testified that Shannon “was really
distraught,” crying and saying, “Help me.” In the car, Shannon
told Friend what had happened in the storage closet. Shannon

cross-examination, Friend clarified that she heard Shannon’s cry
for help after Raheem entered the storage closet.

4. Shannon’s boyfriend had already left the hookah lounge at that
point.

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then dropped Friend off at home and told her that “she was going
to go home and call the police.”

¶9 Coworker testified that when Shannon returned from the
storage closet, “she was hysterical, sobbing,” and “barely able to
form sentences because she was crying so hard.” Shannon told
her, “I have to go. I have to get out of here,” and, “[W]e have to
go. I was raped. These two guys took me into a closet and raped
me.” Shannon then yelled “at a group of individuals” “something
to the effect of, ‘I can’t believe you did this. I’m going to make you
pay.’” Coworker offered to take Shannon to the emergency room,
but she declined the offer and “just wanted to go to her car.”

¶10 Shannon did not call the police when she arrived home.
Instead, she called another friend and told him that she had been
raped. The friend reported the rape to the police. A detective met
with Shannon that same night, and she told him what had
happened at the hookah lounge. The detective testified that
during the conversation, Shannon would not look him in the eye
and her posture was “slumped, saddened.”

¶11 The detective convinced Shannon to go to the hospital that
night for an examination. The examination revealed some bruises
and abrasions on Shannon’s body, as well as injuries to the
perineum, below the rectum, and to the rectum. The examining
nurse testified at trial that Shannon’s examination “stuck out” to
her because “it was the worst rectal injury [she had] seen on a
patient.” But she conceded that it was nonetheless possible for
those injuries to be the product of consensual sex. The nurse also
testified that, among other things, during the examination,
Shannon “stated she felt as though she blacked out during the
assault.”

¶12 At the time, Shannon did not “want to go forward with the
prosecution of the case” because she did not wish to cause stress
to her dying father. Given that she and Raheem “were around the
same areas, same places,” she saw Raheem “a few times” after
that night. But because she “didn’t want to make a scene,” and

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 State v. Raheem

because she “wasn’t going to move forward with anything,” she
“acted like nothing happened” on such occasions. On
cross-examination, Shannon stated that she did return to the
hookah lounge with friends in 2013, but she did not recall seeing
Raheem at that time. She also stated she saw Raheem at a party in
2016 and that she came within eight feet of him. Shannon could
not remember whether she saw Salazar again after the night of the
party.

¶13 In 2015, a year after her father passed away, Shannon was
contacted by the producers of a television program that dealt in
unresolved crimes. The producers were interested in her case and
Shannon agreed to participate in the show. As a result, the police
reopened the case.

¶14 With Shannon’s cooperation, the State charged Salazar and
Raheem each with one count of aggravated sexual assault.
Raheem and Salazar, represented by different counsel, were tried
jointly in 2019—nearly seven years after the sexual assault in the
storage closet. At trial, the State presented testimony from, among
others, Shannon, Friend, Coworker, the friend who called the
police, the detective who interviewed Shannon on the night of the
incident, a detective who interviewed Shannon in 2015, and the
examining nurse. That testimony is recounted, in relevant parts,
above. Of note, Shannon’s testimony contained multiple instances
in which she could not remember specifics and had to refresh her
memory by reviewing copies of her police interview, the report
from the sexual assault exam, and the preliminary hearing
transcript. Additionally, as detailed in Part III.A below, certain
statements made by the witnesses and by the prosecutors were
the subject of objections and a motion for mistrial.

¶15 As part of his defense case, Raheem called his brother and
a friend to testify. His brother testified that he was working at the
hookah lounge that night and that he eventually went looking for
Raheem. He stated that when he knocked on the storage closet
door, Raheem stepped out, followed by Shannon. He stated that
Shannon smiled at him and that she did not appear to be upset or

20200720-CA 5 2024 UT App 29
 State v. Raheem

to have been crying. He had not heard “any screaming or crying
or anybody call for help” before knocking on the door. He testified
that Friend then appeared and pulled Shannon by the arm, and
the two “start[ed] walking and talking.”

¶16 Raheem’s friend testified that he was also at the hookah
lounge that night and that he saw Salazar and Shannon walk into
the storage closet, followed about a minute later by Raheem. He
did not hear “any crying, screaming or calls for help” coming
from the closet before or after Raheem entered. He stated that
approximately five minutes later, he saw Raheem’s brother knock
on the door and that Raheem, Salazar, and Shannon all exited the
closet. To him, Shannon did not appear upset or to have been
crying. He testified that Friend, who did appear upset, then
approached Shannon and pulled her away.

¶17 During closing argument, Counsel asserted, among other
things, that Shannon, Raheem, and Salazar engaged in a
consensual threesome in the closet. He argued that Shannon’s
returning to the hookah lounge in 2013 and coming within eight
feet of Raheem at the 2016 party suggested that she had not been
sexually assaulted that night. He further asserted that Shannon’s
testimony was unreliable and that it should be disregarded in its
entirety.

¶18 The jury convicted Raheem and Salazar as charged.
Subsequently, through new counsel, Raheem filed motions to
arrest judgment and for a new trial. In the motion to arrest
judgment, he argued, in relevant part, that the State failed to
prove that he “at the very least . . . acted recklessly in regard to
[Shannon’s] consent.” And in the motion for a new trial, Raheem
argued, among other things, that he was entitled to a new trial
because Counsel was ineffective for failing to investigate and call
Raheem’s then-girlfriend (Girlfriend) to testify as part of the
defense and that the State and its witnesses made several
impermissible statements throughout trial. The trial court denied
both motions.

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 State v. Raheem

¶19 Raheem appeals. 5

ISSUES AND STANDARDS OF REVIEW

¶20 Raheem raises three issues for our consideration. First, he
argues that the State failed to prove that he was at least reckless
as to Shannon’s nonconsent. He raised this argument before the
trial court in a motion to arrest judgment. 6 “We review a district
court’s grant or denial of a motion . . . to arrest judgment for
correctness.” State v. Miller, 2023 UT 3, ¶ 50, 527 P.3d 1087
(quotation simplified). We will “uphold a denial of the motion . . .
to arrest judgment based on an insufficiency of the evidence

5. Salazar separately appealed. See State v. Salazar, 2022 UT App
38, ¶ 30, 509 P.3d 198, cert. denied, 525 P.3d 1258 (Utah 2022). We
reversed Salazar’s conviction and remanded for a new trial. See id.
¶ 60; infra Part II.B.

6. Citing State v. Fullerton, 2018 UT 49, 428 P.3d 1052, the State
argues that this sufficiency challenge is unpreserved because it
could have been raised at trial. See id. ¶ 49 n.15 (“[A]n objection
that could have been raised at trial cannot be preserved in a
post-trial motion.”). In response, Raheem contends that the State’s
broad interpretation of Fullerton “skirt[s] the plain language” of
rule 23 of the Utah Rules of Criminal Procedure, which says that
“[a]t any time prior to the imposition of sentence, the court upon
its own initiative may, or upon motion of a defendant shall, arrest
judgment if the facts proved or admitted do not constitute a public
offense, or the defendant is mentally ill, or there is other good
cause for the arrest of judgment.” Raheem further asserts that
“Fullerton simply asserts that defendants cannot ‘preserve issues
like prosecutorial misconduct through motions to arrest
judgment.’” See Fullerton, 2018 UT 49, ¶ 49 n.15. Because we
ultimately resolve the merits of this argument in the State’s favor,
we need not resolve this preservation issue. See State v. Kitches,
2021 UT App 24, ¶ 28, 484 P.3d 415, cert. denied, 496 P.3d 718 (Utah
2021).

20200720-CA 7 2024 UT App 29
 State v. Raheem

claim, if some evidence exists from which a reasonable jury could
find that the elements of the crime had been proven beyond a
reasonable doubt.” Id. (quotation simplified). See State v. Stricklan,
2020 UT 65, ¶ 31, 477 P.3d 1251 (“We reverse the denial of a
motion to arrest judgment only if the evidence, viewed in the light
most favorable to the verdict, is so inconclusive or so inherently
improbable as to an element of the crime that reasonable minds
must have entertained a reasonable doubt as to that element.”)
(quotation simplified).

¶21 Second, Raheem argues that Counsel was ineffective for
failing to investigate and present evidence at trial that would have
undercut Shannon’s credibility. Although Raheem raised this
issue in his motion for a new trial, “[t]here is no reason . . . to
depart from the standard of review set out in Strickland simply
because the appeal was preceded by a motion for new trial.” State
v. Templin, 805 P.2d 182, 185–86 (Utah 1990). That is, “ineffective
assistance of counsel claims present a mixed question of fact and
law.” Id. at 186 (citing Strickland v. Washington, 466 U.S. 668, 698
(1984)). We thus “review a trial court’s application of the law to
the facts for correctness and, if applicable, we review the court’s
findings of fact for clear error.” State v. Torres-Orellana, 2021 UT
App 74, ¶ 26, 493 P.3d 711, cert. granted, 502 P.3d 268 (Utah 2021).
See State v. Salazar, 2022 UT App 38, ¶ 31 & n.14, 509 P.3d 198, cert.
denied, 525 P.3d 1258 (Utah 2022).

¶22 Third, Raheem argues that “[i]mproper statements from
the State and inadmissible testimony from its witnesses prevented
[him] from receiving a fair trial.” 7 He also raised this argument in
a motion for a new trial. We “generally review a district court’s
denial of a motion for a new trial for abuse of discretion, but we

7. The State argues that although certain objectionable statements
were the subject of unsuccessful motions for mistrial, this
argument is also unpreserved because Raheem first raised the
“expanded cumulative-prejudice claim in a post-verdict motion.”
For the same reason discussed above, see supra note 6, we do not
reach this preservation argument.

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 State v. Raheem

review any underlying legal conclusions for correctness.” State v.
Centeno, 2023 UT 22, ¶ 44, 537 P.3d 232.

ANALYSIS

I. Sufficiency of the Evidence

¶23 To convict Raheem of aggravated sexual assault, the State
had to prove not only that Shannon did not consent to the sexual
activity that occurred in the storage closet but also that Raheem
was, at the very least, reckless as to Shannon’s nonconsent. See
Utah Code Ann. § 76-2-102 (LexisNexis 2017) (“Every offense not
involving strict liability shall require a culpable mental state, and
when the definition of the offense does not specify a culpable
mental state and the offense does not involve strict liability, intent,
knowledge, or recklessness shall suffice to establish criminal
responsibility.”); id. § 76-5-405(2)(a) (Supp. 2023) (stating that an
element of aggravated sexual assault includes the commission of
rape or forcible sodomy); 8 State v. Barela, 2015 UT 22, ¶ 26, 349 P.3d
676 (“The crime of rape [or forcible sodomy] requires proof not
only that a defendant knowingly, intentionally, or recklessly had
sexual intercourse [or engaged in sodomy], but also that he had
the requisite mens rea as to the victim’s nonconsent.”) (quotation
simplified). On appeal, Raheem challenges only the sufficiency of
the State’s evidence of his recklessness as to Shannon’s
nonconsent.

¶24 A person acts recklessly

with respect to circumstances surrounding his
conduct or the result of his conduct when he is
aware of but consciously disregards a substantial

8. Because the applicable provisions of the Utah Code in effect at
the relevant time do not differ from those currently in effect in any
way material to this appeal, we cite the current version of the code
for convenience.

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 State v. Raheem

and unjustifiable risk that the circumstances exist or
the result will occur. The risk must be of such a
nature and degree that its disregard constitutes a
gross deviation from the standard of care that an
ordinary person would exercise under all the
circumstances as viewed from the actor’s
standpoint.

Id. § 76-2-103(3) (2017). Thus, the State was required to prove, at
the very least, that Raheem “was subjectively aware of but
consciously disregarded the risk” of Shannon’s nonconsent. State
v. Robinson, 2003 UT App 1, ¶ 6 n.2, 63 P.3d 105 (quotation
simplified). See State v. Dyer, 671 P.2d 142, 148 (Utah 1983) (stating
that one is reckless when “one perceives a risk and consciously
disregards it”).

¶25 “Intent can be proven by circumstantial evidence.” State v.
Stricklan, 2020 UT 65, ¶ 105, 477 P.3d 1251 (quotation simplified).
Indeed, “unless a confession is made by the defendant concerning
intent, or unless the court is somehow able to open the mind of
the defendant to examine his motivations, intent is of necessity
proven by circumstantial evidence.” Id. (quotation simplified).
And in determining intent, “the factfinder . . . is entitled to draw
all reasonable inferences from the facts and from the actions of the
defendant.” Id. (quotation simplified). See id. ¶ 106 (“The criminal
intent of a party may be inferred from circumstances such as
presence, companionship, and conduct before and after the
offense.”) (quotation simplified). “A jury’s inference is reasonable
unless it falls to a level of inconsistency or incredibility that no
reasonable jury could accept.” State v. Ashcraft, 2015 UT 5, ¶ 18,
349 P.3d 664 (quotation simplified). Thus, where the evidence
supporting an element of a crime is circumstantial, which will
almost always be the case for the mens rea element, “we must
determine . . . whether the inferences that can be drawn from that
evidence have a basis in logic and reasonable human experience
sufficient to prove each legal element of the offense beyond a
reasonable doubt.” State v. Aziakanou, 2021 UT 57, ¶ 63, 498 P.3d

20200720-CA 10 2024 UT App 29
 State v. Raheem

391 (quotation simplified). “The issue is not whether some other
(innocent) inference might have been reasonable. It is simply
whether the inference adopted by the jury was sustainable.”
Stricklan, 2020 UT 65, ¶ 114 (quotation simplified). An inference is
not sustainable if it “give[s] rise to only remote or speculative
possibilities of guilt.” Aziakanou, 2021 UT 57, ¶ 63 (quotation
simplified).

¶26 In denying Raheem’s motion to arrest judgment, the trial
court concluded that “there was sufficient evidence at trial for the
jury to find [Raheem] at the very least acted recklessly in raping
or sodomizing” Shannon. Pointing to Shannon’s testimony that
she was trying to exit the storage closet at the time Raheem
entered, the court stated that “[t]he jury could reasonably have
concluded [Raheem] locked the door, creating a circumstance
where he could prevent [Shannon] from leaving the room and
could overcome her through physical force.” The court also
pointed to Friend’s testimony that she heard Shannon call for help
sometime after Raheem entered the storage closet “and the door
was not opened for at least five minutes, creating a circumstance
where the jury could have believed [Shannon] did not consent
through words or conduct.” The court also stated that the jury
heard testimony from the examining nurse that Shannon told her
“she felt as though she blacked out during the assault,” which
“create[ed] a circumstance where the jury could reasonably
believe [Raheem] knew [Shannon] was unconscious or unaware
the acts were occurring.” Finally, the court stated that “it is
reasonable for the jury to conclude a person engaging in sexual
activity with another person in a small and cramped space would
not consent to a third person approaching her from behind,
removing her pants, and penetrating her anally with his penis,”
causing “severe” rectal injuries that “were consistent with
nonconsensual sexual acts.”

¶27 On appeal, Raheem argues that “[t]he evidence the district
court relied on in its analysis does not prove that [he] acted with
a criminal mindset about [Shannon’s] nonconsent.” He then raises
several challenges to the court’s analysis:

20200720-CA 11 2024 UT App 29
 State v. Raheem

• He asserts that the act of locking the closet door “does not
support an inference that [he] was aware of and
consciously disregarded a risk that [Shannon] did not
consent” because “[i]t is common to lock a door when
engaging in consensual sexual activity” and because
Shannon did not testify that she took any action that should
have alerted Raheem to the fact that she was trying to exit
the storage closet.

• He takes issue with the court’s suggestion that the jury
could infer that he was reckless as to Shannon’s nonconsent
based on the type and location of sexual activity that
occurred because “[i]ndividuals engage in diverse
consensual sexual activity.”

• He challenges the court’s conclusion that the jury could
infer recklessness from Friend’s testimony that the door
was not opened for five minutes after Friend heard
Shannon call for help from the inside. He contends that,
even crediting Friend’s testimony, any such inference “is
unsupported speculation” because Shannon testified that
the men ceased the sexual intercourse when she started
crying and the fact “[t]hat it took five minutes for the three
to dress and emerge does not support an inference that [he]
continued sex.”

• He argues that the court’s focus on the injuries the
examining nurse documented during the sexual assault
examination was improper because those injuries went
toward consent rather than recklessness. And he asserts
that, in any event, the injuries did not establish nonconsent
because the nurse testified that they could have been
caused by consensual intercourse.

• He argues that the court’s reliance on the examining
nurse’s testimony that Shannon “stated she felt as though
she blacked out during the assault” was inappropriate
because “[w]ithout information about timing, evidence

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that [Shannon] ‘felt as though she blacked out’ at some
unspecified moment does not support an inference that
[he] was aware of and disregarded a risk that she did not
consent during the sexual activity.” He further argues that
the evidence did not support an inference that Shannon
visibly lost consciousness.

¶28 In addition to challenging the court’s reasons for denying
his motion to arrest judgment, Raheem contends that the State
presented insufficient evidence in other respects to prove that he
was at least reckless as to Shannon’s nonconsent. 9 He argues the
following points:

• Shannon told Salazar to stop kissing her on the neck and
that she “didn’t want to be in” the storage closet before
Raheem entered the closet, and the State presented no
evidence that Raheem heard this interaction from the
other side of the door.

• Although Shannon testified that she “was trying to get
out” when Raheem entered the closet, “she did not testify
that she did or said anything at that point” that would
have made him aware of that fact.

• After Raheem entered the closet, Shannon “did not testify
about any verbal or nonverbal cues that could have made

9. Raheem’s arguments are limited to addressing the first part of
the recklessness definition, i.e., whether he was “aware of but
consciously disregard[ed] a substantial and unjustifiable risk
that” Shannon did not consent. Utah Code Ann. § 76-2-103(3)
(LexisNexis 2017). He does not argue that the risk was not “of
such a nature and degree that its disregard constitute[d] a gross
deviation from the standard of care that an ordinary person
would exercise under all the circumstances as viewed from [his]
standpoint.” Id.

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 State v. Raheem

[him] aware that she did not consent” to the sexual activity
that was about to occur.

• Shannon “did not testify to any actions or reactions that
would have made [him] aware of a risk that she did not
consent” either when he bent her over and had vaginal sex
with her or when he had anal sex with her after they were
all on the ground. To the contrary, he points to the fact that
Shannon testified that both men ended the sexual
encounter when she started crying. “Thus,” he argues,
“when [Shannon] did exhibit a nonverbal cue that she did
not consent, the men heeded that cue and stopped.”

¶29 But even taking all the above arguments at face value, the
jury nonetheless heard sufficient evidence from which it could
reasonably infer that Raheem acted recklessly as to Shannon’s
nonconsent. As an initial matter, Friend testified that Raheem was
also present in the hallway when she initially knocked on the
locked door and tried to enter the storage closet. After Friend’s
efforts proved unsuccessful, Raheem knocked, and the door was
opened for him. From this testimony, the jury could reasonably
infer that Raheem was aware that Friend was concerned about
what was transpiring in the storage closet. But Raheem did not
hold the door open for Friend to also enter. Instead, he “slid
through the door” and one of the men locked it behind him.
Shannon testified that as soon as Raheem entered the closet, he
pushed her against Salazar, bent her over, pulled down her pants,
and began having vaginal sex with her, all while Salazar also
inserted his penis into her mouth. This bears none of the usual
hallmarks of consensual sex. There was no evidence presented
that there had been a prior agreement between the three to have
sex in the closet—to the contrary, Shannon testified that before
Raheem entered the closet, she told Salazar that his sexual
advances were unwelcome and that she wanted to leave. Nor did
Raheem ask any questions to ascertain whether Shannon would
consent to sexual intercourse. And even in the absence of any
indication from Shannon that she did not consent to the sexual
activity, there was also no evidence presented that Shannon

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suggested to Raheem in any way that she would consent to such
action, if taken. For example, Shannon did not voluntarily bend
over; instead, Raheem pushed her against Salazar and caused her
to bend over. And Raheem—not Shannon—was the one to
remove her pants in the absence of any indication that this would
meet with Shannon’s approval.

¶30 In sum, the State presented evidence that Raheem entered
the storage closet after observing a concerned Friend
unsuccessfully try to do the same. When the door was opened for
him, he “slid” inside and did not permit Friend to enter. Once in
the closet, both men began engaging in sexual activity with
Shannon—which was initiated without any indication from
Shannon suggesting that she was a willing participant. Based on
the evidence of these circumstances, coupled with “reasonable
human experience,” State v. Aziakanou, 2021 UT 57, ¶ 63, 498 P.3d
391 (quotation simplified), a jury could reasonably infer that
Raheem was, at the very least, “aware of but consciously
disregard[ed] a substantial and unjustifiable risk” that Shannon
did not consent when he pushed her against Salazar, removed her
pants, and began having sexual intercourse with her, Utah Code
Ann. § 76-2-103(3) (LexisNexis 2017).

¶31 For the foregoing reasons, we reject Salazar’s challenge to
his conviction on sufficiency of the evidence grounds.

II. Ineffective Assistance of Counsel

¶32 Raheem argues that Counsel was constitutionally
ineffective for failing to investigate and call Girlfriend to testify in
his defense. He makes two arguments related to this claim of
ineffective assistance. First, he argues the merits of the claim.
Second, he seeks reversal “in the interests of fairness” based on
our recent reversal of his co-defendant Salazar’s conviction on
ineffective assistance grounds. See State v. Salazar, 2022 UT App
38, ¶ 60, 509 P.3d 198, cert. denied, 525 P.3d 1258 (Utah 2022). We
hold that Raheem is not entitled to reversal on either ground.

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A. The Merits

¶33 To prevail on a claim of ineffective assistance of counsel, a
criminal defendant must show both that (1) “counsel’s
performance was deficient” and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). Here, because we hold that Raheem has failed to establish
that counsel performed deficiently, we need not also address
prejudice. See State v. Hatch, 2019 UT App 203, ¶ 29, 455 P.3d 1103
(“A defendant’s inability to establish either element defeats a
claim for ineffective assistance of counsel[.]”) (quotation
simplified), cert. denied, 462 P.3d 801 (Utah 2020).

¶34 To satisfy the deficient performance element, the
defendant must overcome the “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance,” Strickland, 466 U.S. at 689, and show that defense
counsel’s actions “fell below an objective standard of
reasonableness,” id. at 688. Under this standard, it is insufficient
to merely show that counsel erred. See State v. Ray, 2020 UT 12,
¶ 34, 469 P.3d 871. Rather, “the ultimate question is always
whether, considering all the circumstances, counsel’s acts or
omissions were objectively unreasonable.” State v. Scott, 2020 UT
13, ¶ 36, 462 P.3d 350.

¶35 “An attorney has a duty to conduct a reasonable
investigation into the facts of his client’s case and to make
reasonable decisions regarding the proper scope of that
investigation.” Honie v. State, 2014 UT 19, ¶ 36, 342 P.3d 182. “If
counsel does not adequately investigate the underlying facts of a
case, including the availability of prospective defense witnesses,
counsel’s performance cannot fall within the wide range of
reasonable professional assistance.” State v. Hill, 2018 UT App 140,
¶ 11, 427 P.3d 1247 (quotation simplified). Defense counsel’s
“decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments.” Strickland, 466 U.S.
at 691. “In evaluating the reasonableness of counsel’s

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 State v. Raheem

investigation, we consider not only the quantum of evidence
already known to counsel, but also whether the known evidence
would lead a reasonable attorney to investigate further.” Honie,
2014 UT 19, ¶ 37 (quotation simplified). To that end, “inquiry into
counsel’s conversations with the defendant may be critical to a
proper assessment of counsel’s investigation decisions.”
Strickland, 466 U.S. at 691. See id. (“Counsel’s actions are usually
based, quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant. In
particular, what investigation decisions are reasonable depends
critically on such information.”).

¶36 Raheem first raised his claim that Counsel was ineffective
for not investigating or calling Girlfriend to testify in his motion
for a new trial. The motion was accompanied by affidavits from
himself and Girlfriend.

¶37 In her affidavit, Girlfriend averred that she dated Raheem
“on and off” from 2012 to 2013 and that she “spent a lot of time
helping [Raheem] run” the hookah lounge as well as a different
lounge he later ran. She stated that on the night of the assault,
Shannon came up to her and told her that she had given Raheem
“head,” which Girlfriend understood to mean that Shannon “had
performed oral sex on” Raheem. Girlfriend further averred that
Shannon “did not seem upset,” nor did she tell Girlfriend that
Raheem “forced her to perform any sex act.” Girlfriend stated
that, to the contrary, Shannon’s “tone of voice and expression
seemed bragging” as if she intended to make Girlfriend jealous.
Girlfriend later confronted Raheem about Shannon’s claim,
resulting in an argument.

¶38 Girlfriend stated that after that night, Shannon continued
to frequent the hookah lounge and “act friendly with” Raheem.
Girlfriend stated that on another night, she observed on the
security cameras Raheem and Shannon have a conversation and
hug. Girlfriend said she confronted Raheem about the hug and
another argument ensued. Girlfriend stated that Counsel never
contacted her but that if he had called her to testify at trial, she

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 State v. Raheem

would have testified as recounted above. She stated that when she
heard that Raheem “went to jail,” she contacted his brother, who
put her in touch with Raheem’s appellate counsel.

¶39 In his affidavit, Raheem averred that he told Counsel that
following the night in question, Shannon not only continued to
visit the hookah lounge, as well as the other lounge he later ran,
but that she also “continued to be friendly and flirtatious with”
him and “apologized . . . multiple times for ‘the drama’ and asked
if [they] could still be friends.” At the end of one of these
conversations, the two hugged. He also stated that shortly after
the episode giving rise to the charge in this case, Girlfriend
confronted him, saying that Shannon told her that Shannon “had
given [him] head.” Raheem stated that Counsel did not ask
whether anyone could corroborate these assertions, and he
claimed that if Counsel had asked, “I would have told him that”
Girlfriend “could confirm these things.” 10

¶40 Counsel’s investigation did, however, uncover pictures
taken in 2013—a few months after the sexual assault—of Shannon
at the hookah lounge with friends and a video taken at the 2016
party at which Shannon was within eight feet of Raheem. Counsel
intended to introduce the pictures and stills from the video at trial.
The State objected to the admission of the proposed exhibits
“based on relevancy, and also being more prejudicial than
probative.” Counsel responded that he would not use the stills if
Shannon acknowledged that she was at the 2016 party and that
she felt sufficiently comfortable to come within eight feet of
Raheem. But he did intend to introduce the stills if Shannon
denied being at the party or testified that she was “off in a corner
scared.” He also intended to introduce the 2013 pictures if
Shannon denied returning to the hookah lounge with friends and
having “a good time.” The court sustained the State’s objection
“for now,” stating, “We’ll see how she testifies.” This issue was

10. Raheem does not explain why he did not just volunteer this
information considering how important he apparently thought it
was.

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 State v. Raheem

not revisited later at trial because Shannon did, in fact,
acknowledge visiting the hookah lounge with friends in 2013 and
approaching within eight feet of Raheem at the 2016 party.

¶41 Raheem argues that Counsel’s investigation was deficient
because he did not follow up when Raheem told him of Shannon’s
behavior toward him after the night of the assault. Raheem asserts
that if Counsel had done so, he “would have discovered that there
was in fact a witness who could corroborate [his] story that
Shannon had bragged about her sexual encounter with [him] to a
third party.” He argues that if Counsel had “investigated and
presented [Girlfriend’s] testimony, he would have been able to
further cast doubt on [Shannon’s] credibility and refute
statements she made about her post-incident conduct.”

¶42 We first emphasize the scope of our inquiry. Without
question, the best practice would have been for Counsel to follow
up by asking whether anyone could corroborate Raheem’s
assertions. But, as stated above, under a claim of ineffective
assistance of counsel, “the ultimate question is always whether,
considering all the circumstances, counsel’s acts or omissions
were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36,
462 P.3d 350. See Strickland v. Washington, 466 U.S. 668, 687 (1984)
(stating that the deficient performance element “requires showing
that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment”); State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d 871 (“Even
if an omission is inadvertent and not due to a purposeful strategy,
relief is not automatic.”) (quotation simplified). Under this
standard, we hold that Counsel’s omission was not objectively
unreasonable under the circumstances of this case.

¶43 As discussed above, Counsel’s investigation into
Shannon’s post-assault behavior produced photographic
evidence both that Shannon returned to the hookah lounge a
few months after the assault and that she felt comfortable
enough to approach within eight feet of Raheem at a party
some years later. Although Shannon acknowledged at trial

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 State v. Raheem

that she did these things, thus obviating the need for Counsel to
seek admission of the photographic evidence, Counsel
nonetheless argued during closing argument that this
post-assault conduct conflicted with her claim that she had
been sexually assaulted that night. Additionally, Counsel
called Raheem’s brother and friend to counter Shannon’s
testimony, as well as that of other State witnesses, regarding her
behavior at the hookah lounge immediately after she exited the
storage closet.

¶44 Having uncovered the photographic evidence and the
two defense witnesses, coupled with Raheem’s silence during the
conversation as to Girlfriend’s ability to corroborate his account of
his post-assault interactions with Shannon, it was not
unreasonable for Counsel to believe that he had
sufficiently investigated Shannon’s post-assault conduct. Indeed,
Counsel’s investigation was sufficient to prompt Raheem to
discuss Shannon’s continued “friendly and flirtatious” behavior,
as well as the hug after a conversation in which Shannon
apologized for “the drama.” And the follow-up question that
Raheem faults Counsel for not asking only sought additional
information that a person could reasonably be expected to
volunteer without further prompting. Thus, after Raheem
divulged the information to which Girlfriend would have
testified, it was not unreasonable for Counsel to presume that
Raheem would also mention that a witness to such events existed,
if one did. 11

¶45 For these reasons, under the circumstances of this case, we
cannot say that Counsel’s failure to ask the follow-up question

11. Although we cannot be sure on this record whether Raheem
was the one to direct Counsel’s attention to his brother and friend
as witnesses to Shannon’s conduct immediately after exiting the
storage closet, we note that if he was, it would be yet another
reason that Counsel’s not asking a follow-up question regarding
Shannon’s alleged later conduct was not unreasonable.

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 State v. Raheem

about other potential witnesses was objectively unreasonable.
Raheem’s claim of ineffective assistance therefore fails. 12

B. Interests of Fairness

¶46 Alternatively, Raheem argues that in light of our recent
reversal of co-defendant Salazar’s conviction on ineffective
assistance grounds, see State v. Salazar, 2022 UT App 38, ¶ 60, 509
P.3d 198, cert. denied, 525 P.3d 1258 (Utah 2022), we should
likewise reverse his conviction and grant him a new trial “in the
interests of fairness.” 13 But because Raheem does not ground this
claim on any constitutional provision, statute, rule, or caselaw, we
have no basis for reversal and this argument necessarily fails.

¶47 In the other appeal, Salazar argued, in relevant part, that
his trial counsel was ineffective for failing to introduce at trial
certain Voxer 14 messages Shannon sent Salazar following the

12. Because we reject Raheem’s claim that Counsel was ineffective
for failing to further investigate, we need not address his
argument that Counsel was also ineffective for failing to call
Girlfriend to testify at trial. Because Counsel was unaware of
Girlfriend’s existence at the time of trial, he could not have been
expected to call her to testify.

13. Because we reversed Salazar’s conviction after Raheem
submitted his principal brief, Raheem first raised this issue in his
reply brief, and we subsequently authorized surreply briefing on
this question.

14. “Voxer is an app that allows users to exchange voice, text,
photo, and video messages. Its primary service is to deliver voice
live—so it can be listened to immediately while also
simultaneously recording the message—so it can be listened to
later.” State v. Salazar, 2022 UT App 38, ¶ 21 n.6, 509 P.3d 198
(quotation simplified), cert. denied, 525 P.3d 1258 (Utah 2022).

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 State v. Raheem

assault. 15 See id. ¶¶ 22, 31, 35. At the preliminary hearing, apart
from “a few messages” she received “from Salazar in the days
immediately after the incident,” Shannon “testified that she did
not ‘hang out with him after the assault’ and ‘never had any direct
contact with Mr. Salazar.’” Id. ¶ 12 (quotation simplified). At trial,
Shannon “stated that she did not recall having contact or
socializing with Salazar after the incident but that she ‘was told
that I reported something before to the cops, but I don’t
remember.’” Id. ¶ 18. She also stated that “it was ‘correct’ that ‘at
the preliminary hearing under oath she said that she would never
have had contact with Salazar after the fact.’” Id. (quotation
simplified). Salazar’s trial counsel did not present the Voxer
messages at trial to undermine Shannon’s credibility.

¶48 Salazar argued that his trial counsel was ineffective
because the Voxer “messages would have showed that Shannon
lied when she repeatedly and unequivocally testified at the
preliminary hearing that she never again contacted Salazar.” Id.

15. Salazar also argued that his trial counsel was ineffective for
failing to investigate the Voxer messages. See id. ¶ 35 n.15. We
declined to address this issue, stating that even if the State was
correct that we should presume that Salazar’s counsel
investigated the Voxer messages, “it does not change our
conclusion that [Salazar’s counsel] was ineffective for not using
them at trial.” Id. We also noted that based on the trial court’s
statement that evidence existed that Salazar’s counsel possessed
the messages at the time of trial but elected not to use them, “we
do not conclude that [Salazar’s counsel] failed to investigate the
existence of the messages, because he actually had the messages,
even though it is suggested by Salazar that [his counsel] did not
have the technical expertise to access and review them.” Id. Our
analysis thus focused on counsel’s decision not to use the
messages at trial. See id.
Here, conversely, Girlfriend’s affidavit stated that when she
did come forward, Raheem’s brother put her in contact with
appellate counsel—thus indicating that Raheem had already been
convicted at that point.

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 State v. Raheem

¶ 35 (quotation simplified). We held that Salazar’s trial counsel
performed deficiently in not using the messages at trial because
“with Shannon as the State’s lead and most critical witness, any
reasonable counsel would have presented the Voxer messages to
undermine her credibility.” Id. ¶ 40. See id. ¶ 45 (stating that it was
“unreasonable for [Salazar’s counsel] not to use the Voxer
messages to undercut Shannon’s already problematic
credibility”). We further held that Salazar was prejudiced, stating
that based on “Shannon’s problematic testimony and the lack of
necessarily inculpatory physical evidence, the Voxer messages
would have affected the overall evidentiary picture, and the jury
may well have found Shannon less credible.” Id. ¶ 59 (quotation
simplified). See infra note 19. Accordingly, we reversed Salazar’s
conviction for aggravated sexual assault on ineffective assistance
of counsel grounds and remanded his case for a new trial. See
Salazar, 2022 UT App 38, ¶ 60.

¶49 Raheem argues, “[T]his Court should recognize that any
change in Mr. Salazar’s trial would have resulted in a different
outcome for [him]. The two men were charged with the same
crime and had a single trial. If Mr. Salazar did not receive a fair
trial, [Raheem] was also impacted by that lack.” 16 But Raheem’s
argument in briefing is limited to citing a handful of Utah cases
referencing “principles of fairness” in other contexts that provide
no basis for reversal in this case.

¶50 During oral argument, Raheem pointed to our Supreme
Court’s recent decision in In re J.A.L, 2022 UT 12, 506 P.3d 606, in

16. Raheem primarily argued that reversal was warranted under
the law of the case doctrine, contending that “[t]his Court’s
reasoning in Salazar explicitly demonstrates that [Counsel] acted
deficiently when he failed to introduce evidence which undercut
Shannon’s credibility and that [he] was prejudiced by [Counsel’s]
deficiencies.” But Raheem conceded during oral argument that
because “different evidence [is] involved” here than was at issue
in that appeal, Salazar has more of a persuasive effect on the
current case “than strict law of the case.”

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 State v. Raheem

which the Court held, as a matter of first impression, that a mother
whose parental rights were terminated could participate in a
remand the father had secured on appeal. See id. ¶ 34. In that case,
each parent raised separate claims of error in the joint appeal, see
id. ¶ 8, but only the father’s claims of error proved successful, see
id. ¶ 27. Although the mother had not made the same winning
arguments, see id. ¶ 29, the Court held that “[t]he rights and
interests of the parents and the children are not only substantial
but intertwined” in the parental termination proceeding, and the
juvenile court’s missteps that the father had identified on appeal
“may bear significant consequences not just for the parents but for
their children,” id. ¶ 33. Accordingly, the Court held “that the
mother’s briefing decisions should not foreclose her from
participating in the case on remand” and that “[b]oth parents’
legal rights should be on the table.” Id. ¶ 34.

¶51 In re J.A.L.’s narrow holding is inapplicable to the current
case. As the Court’s analysis makes clear, the unique context of
parental rights termination in which the primary focus is the best
interest of the child played a crucial role in that case. Here, no such
third-party interest is at stake. Additionally, it was not the error
of the court that warranted reversal in Salazar but the ineffective
assistance of Salazar’s trial counsel—and not Raheem’s. 17 For

17. To be sure, if the trial court, the State, or some other actor had
made an error affecting the rights of both co-defendants and
resulting in an unfair trial, Raheem may potentially have been
entitled to raise that claim of error in his own appeal. In such a
situation, the law of the case doctrine may well apply to ensure
the same result in both appeals. See State v. Ellis, 969 P.2d 1053,
1054 (Utah Ct. App. 1998) (holding that because the appellant’s
co-defendant received reversal on the “identical facts and legal
question” the appellant raised, the law of the case doctrine
applied, likewise entitling the appellant to a reversal). But here, as
Raheem acknowledged during oral argument, see supra note 16,
although there are some similarities, the underlying facts and
claim of ineffective assistance he raises are distinct from the facts
and claim of ineffective assistance that merited reversal in Salazar.

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 State v. Raheem

these reasons, In re J.A.L. does not mandate reversal of Raheem’s
conviction.

¶52 In sum, because Raheem’s fairness argument has no basis
in law, it necessarily fails. The reversal of Salazar’s conviction in a
prior appeal has no binding effect on Raheem’s case.

III. Improper Statements and Hearsay

¶53 Raheem argues that the trial court erred in denying his
motion for a new trial in which he claimed that improper
statements by the prosecutors and inadmissible hearsay
statements by the State’s witnesses deprived him of a fair trial. We
first recount each of the challenged statements and then proceed
to address the merits of Raheem’s argument.

A. Additional Facts

¶54 First, during jury selection, the two prosecutors in the case
introduced themselves to the potential jurors as members of a
“special victims team” and a “special victims unit.” Shortly
afterwards, during a sidebar conversation, the defense objected to
the prosecutors’ use of the word “victim” and asked the trial court
to either “[c]raft some sort of limiting instruction, or grant . . . a
mistrial.” The court told the jury that the prosecutors’ “use of the
word victim is not proper” because “[i]t is inconsistent with the
presumption of innocence” and instructed the jury “not to
consider the use of that word.”

¶55 Second, during opening statements, one of the prosecutors
told the jury that Raheem ran the hookah lounge “and it had
teenage girls, 18-years-old, who would work there without pay,
but would receive hookah or tobacco instead of being paid.” The
defense objected to this statement, arguing that the defense had
no prior notice of this “other acts” evidence. See Utah R. Evid.
404(b)(2). The trial court then instructed the jury “to disregard
references to any sort of issue about whether there were
individuals smoking underage in this establishment, or whether

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 State v. Raheem

there were any sort of labor violations with respect to individuals
working in this establishment without pay.”

¶56 Third, at the beginning of Coworker’s testimony, the State
asked, “What’s your understanding of why you’re here to
testify?” Coworker responded, “I’m here to testify as a witness
against two individuals that had raped [Shannon].” The defense
objected and moved for a mistrial, arguing the comment
impermissibly bolstered Shannon’s credibility and was
prejudicial. The court asked whether Coworker’s expected
testimony regarding Shannon’s excited utterances after she exited
the storage closet would mitigate the prejudice. See id. R. 803(2)
(exempting from the rule against hearsay “[a] statement relating
to a startling event or condition, made while the declarant was
under the stress of excitement that it caused”). The defense
recognized that the testimony may “correct the mistake” but
argued that the cumulative effect of the comment and the
prosecutors’ prior statements that they were members of a
“special victims team” warranted a mistrial. The court took the
motion for mistrial under advisement, but in the interim, it
instructed the jury to disregard the comment because “the
question of whether or not rape occurred in this case is the
ultimate issue in the case that you have to decide as the jury” and
Coworker’s “comment on it is not proper for you to consider.”
The court then asked whether the members of the jury understood
the instruction and whether they believed they could follow it.
The jurors indicated in the affirmative. The court then asked any
jurors who “doubt[] their ability to follow that instruction and
disregard” Coworker’s opinion on the matter to raise a hand.
None of the jurors raised their hand.

¶57 Fourth, the detective who convinced Shannon to go to the
hospital testified that he had been dispatched “for a possible
rape.” The defense lodged an objection, which the court sustained
and instructed the jury to disregard the statement “for the same
reason that I gave you the instruction before.” Namely, “[i]t’s the
ultimate issue in the case about whether or not a rape occurred.
That’s for you to decide, not for this witness or any other specific

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 State v. Raheem

witness to say.” The court again asked the jurors whether they
could “all follow that instruction to disregard [the detective’s]
answer.” All the jurors again indicated in the affirmative. A little
later, the detective testified that when he arrived at the hospital,
the examining nurse and a “victims advocate” were already there.
The defense did not object to the use of the word “victim” at this
time.

¶58 Fifth, during cross-examination of Raheem’s friend, in the
context of asking about who had subpoenaed him, the State
asked, “But who [are] you testifying for?” The defense objected.
The court sustained the objection and told the jury, “The witness
was subpoenaed to testify. He’s not testifying for anyone or
against anyone. He’s just providing his testimony. Does
everybody understand that?” The jurors again responded in the
affirmative.

¶59 During a recess, the court heard further argument on the
mistrial motion. 18 By that point, both Coworker and Friend had
testified as to Shannon’s excited utterance when she exited the
storage closet that she had just been raped. See supra ¶¶ 8–9. The
defense nonetheless argued that Coworker’s comment and the
testimony about Shannon’s excited utterances “are two different
things” because “[i]n the one case she’s offering it and asserting it
as a fact, in the other she’s talking about things . . . that were told
to her.” The defense also argued that the detective’s mention of a
“victims advocate,” the State’s use of the word “victim” during
introductions, and Coworker’s “rape” comment all “cumulatively
add[] up to a mistrial.”

¶60 In response, the State asserted that “no one has called
[Shannon] a victim,” rather the prosecutors’ and the detective’s
use of the word “victim” was in reference to job titles and
descriptions. Indeed, the State pointed out that even Counsel at

18. At this point, because Raheem’s friend had not yet been called
to the stand, the objected-to interaction in which the State asked
him who he was testifying for was not discussed.

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 State v. Raheem

one point referenced a “victim advocate” during a
cross-examination. Concerning Coworker’s statement, the State
argued that it was not solicited and that any potential prejudice
was “cured” by admissible testimony of Shannon’s excited
utterance when she exited the storage closet that she had just been
raped and by the court’s curative instruction. Additionally, the
State argued that the detective did not indicate that a rape had
occurred because he said “possible rape.”

¶61 The trial court denied the motion for mistrial, largely
agreeing with the State’s arguments. The court stated that it held
off on ruling on the motion when first lodged at the onset of
Coworker’s testimony because it wanted “to see how the
testimony unfolded.” The court acknowledged that the State’s
question that prompted Coworker’s objectionable comment “was
probably not the best question for the prosecution to ask of a lay
witness” and that the comment was “potentially inflammatory.”
But the court pointed out that the jury heard admissible evidence
of Shannon’s excited utterance that she had been raped.
Additionally, the jury received a curative instruction, and the
court “carefully observed the jurors” while giving the instruction
and was convinced that they understood the instruction. It
therefore held that any prejudice from Coworker’s comment was
mitigated. The court further held that the detective’s reference to
a “potential rape” was not prejudicial because it was no secret that
the case was “about an alleged rape.” And, in any event, the court
stated that it “gave careful curative instructions that” it
“believe[d] the jury understood.”

¶62 Concerning the use of the word “victim,” the court first
noted that although the State was correct that no one had called
Shannon a victim and that the term was used in the context of
discussing job titles, this was nonetheless “problematic when
they’re injected into a proceeding.” See State v. Juarez, 2021 UT
App 53, ¶ 35, 489 P.3d 231 (“[U]se of the term ‘victim’ usually will
be inappropriate when the defendant defends the case on grounds
that no crime was committed and, concomitantly, that there is no
victim in the case at all.”). Cf. State v. Vallejo, 2019 UT 38, ¶ 102,

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 State v. Raheem

449 P.3d 39 (“We . . . recognize the gravity of referring to witnesses
as victims during a trial.”). But the court held that in light of the
curative instruction it gave during jury selection, which it
believed the jury understood, the use of the word “victim” was
not prejudicial. See Juarez, 2021 UT App 53, ¶ 39 (stating that
curative instructions are “a tool that can sometimes, depending
upon the context in which the statements were made, mitigate any
prejudice caused by the use of the term ‘victim’”) (quotation
simplified). And although the defense did not object immediately
after the detective referenced a “victims advocate,” the court
stated it believed that the jury understood the prior curative
instruction likewise applied to that statement.

¶63 Raheem renewed this argument in his motion for a new
trial, in which, in addition to the improper statements he raised in
his motion for mistrial, he argued that a new trial was warranted
due to the State’s discussion of “other acts” evidence during
opening statements and due to the State’s improper question to
Raheem’s friend during cross-examination. The court denied the
motion. Concerning the prosecutors’ reference to a “special
victims team” and a “special victims unit” during jury selection
and to other acts evidence during opening statements, the court
explained, “The court gave curative jury instructions for each of
these statements, and [it] found the jury was sophisticated,
understood the court’s instructions, and indicated a willingness
to abide by the instructions. Therefore, any error was cured at
trial.” Similarly, regarding the State’s improper question to
Raheem’s friend, the court stated that it “gave a curative
instruction with regard to the State’s implication [the friend] was
testifying for a particular party, and any error with regard to him
was rectified” and “was not prejudicial.” Lastly, the court stated
that “with regard to references to ‘victim’ and ‘rape,’ throughout
the trial, there were very few and the court gave curative
instructions to the jury instructing it to disregard the references.
The jury understood the instructions and agreed to disregard the
statements.”

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 State v. Raheem

B. The Merits

¶64 Raheem argues that “the cumulative effect of the improper
testimony should undermine the court’s confidence in the
outcome” because “the curative instructions were not adequate to
mitigate the cumulative prejudice of the many errors.”
Referencing Shannon’s “credibility issues,” 19 he asserts that “the
jury was left with much it was instructed to disregard and little it
could legitimately rely on to convict.” He also contends that “the
inadmissible evidence served to unjustifiably bolster the State’s
case and credibility of [Shannon’s] accusation.”

¶65 “Because of the advantaged position of the trial judge to
determine the impact of events occurring in the courtroom on the
total proceedings, an appellate court will find an abuse of
discretion only when the trial court is plainly wrong in that the
incident so likely influenced the jury that the defendant cannot be
said to have had a fair trial.” State v. Maestas, 2012 UT 46, ¶ 325,
299 P.3d 892 (quotation simplified). Here, we cannot say that the
trial court abused its discretion in denying the motion for a new
trial.

¶66 As Raheem points out, in holding that the errors were not
prejudicial, the court relied heavily on the curative instructions it
issued following each objection to the improper statements. “We
normally presume that a jury will follow an instruction to
disregard inadmissible evidence inadvertently presented to it,
unless there is an overwhelming probability that the jury will be

19. In State v. Salazar, 2022 UT App 38, 509 P.3d 198, cert. denied,
525 P.3d 1258 (Utah 2022), we held that “the State’s prospects for
a conviction primarily rested on [Shannon’s] testimony,” id. ¶ 58,
and that her credibility was “problematic” due to “her inability to
remember most of the specifics of the assault without the
prosecutor’s direction and her changing story about the soda,” id.
¶ 45. See id. ¶ 44 (detailing Shannon’s memory issues and
inconsistent accounts regarding the allegedly spiked soda she
said she consumed).

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 State v. Raheem

unable to follow the court’s instructions, and a strong likelihood
that the effect of the evidence would be devastating to the
defendant.” State v. Harmon, 956 P.2d 262, 273 (Utah 1998)
(quotation simplified). See State v. Curtis, 2013 UT App 287, ¶ 25,
317 P.3d 968 (“Curative instructions are ordinarily presumed on
appeal to be effective, absent a substantial and prejudicial
underlying error or irregularity.”) (quotation simplified), cert.
denied, 343 P.3d 708 (Utah 2015). But see Harmon, 956 P.2d at 273
(“This is not to say that curative instructions are a ‘cure-all.’ Some
errors may be too prejudicial for curative instructions to mitigate
their effect, and a new trial may be the only proper remedy.”).

¶67 With the exception of the detective’s single mention of the
“victims advocate,” the court “gave a forceful curative instruction
at the time [each] error occurred.” See Harmon, 956 P.2d at 273. The
court not only gave the instruction, it explained why the
instruction was being given and asked the jurors to indicate
whether they understood the instruction and were able to abide
by it. Concerning the “victims advocate” reference, the jury had
already received the relevant curative instruction only a few
minutes earlier when the same detective stated “potential rape,”
as well as when the State referenced a “special victims team”
during jury selection. There was also “nothing to indicate that the
jury was unable to follow the court’s instruction to disregard the
inadmissible evidence that had been inadvertently presented to
it.” See id. To the contrary, the court “found the jury was
sophisticated, understood the court’s instructions, and indicated
a willingness to abide by the instructions.” See Maestas, 2012 UT
46, ¶ 325 (acknowledging “the advantaged position of the trial
judge to determine the impact of events occurring in the
courtroom on the total proceedings”) (quotation simplified).

¶68 Furthermore, we are not convinced that the cumulative
effect of the improper statements was so “substantial and
prejudicial” as to undermine the effectiveness of the curative
instructions. Curtis, 2013 UT App 287, ¶ 25 (quotation simplified).
As the trial court noted, the potential prejudice of most of the
statements was significantly decreased by other factors. Most

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 State v. Raheem

notably, the prejudice of Coworker’s improper statement was
significantly decreased when she and two other witnesses
provided admissible testimony regarding Shannon’s allegations
of rape immediately after she exited the storage closet.
Additionally, the prejudicial impact of the detective’s reference to
a “potential rape” is questionable, given the use of the qualifying
word “potential” and the jury’s general understanding that it was
tasked with determining whether Raheem and Salazar sexually
assaulted Shannon in the storage closet. Such an understanding
likewise minimized the prejudicial impact of the State’s and the
detective’s references to “victim,” as they never directly called
Shannon a “victim” but rather were using the word when
providing titles and descriptions of their jobs.

¶69 Additionally, the State’s improper comment during
opening statement about the potential underage smoking and
labor violations at the hookah lounge was rather mild in
comparison to the graphic allegations the jury later heard. See
State v. Murphy, 2019 UT App 64, ¶ 39, 441 P.3d 787 (stating that
the victim’s improper statement that the “defendant was shot
might have stood out more prominently in other trials” but “in
the current case the highly graphic and disturbing nature of the
evidence presented to the jury over the course of six days . . .
overshadowed” the improper statement), cert. denied, 466 P.3d
1074 (Utah 2020). Thus, even considered cumulatively and in light
of issues with Shannon’s credibility, we cannot say that the
prejudicial effect of the errors was so great as to rebut the
presumption that the jury followed the trial court’s curative
instructions.

¶70 For these reasons, the trial court did not abuse its discretion
when it denied the motion for a new trial.

CONCLUSION

¶71 The State presented sufficient evidence at trial to prove that
Raheem acted, at the very least, recklessly as to Shannon’s

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 State v. Raheem

nonconsent. Under the circumstances of this case, Counsel was
not ineffective for not asking a follow-up question regarding
whether anyone could corroborate Raheem’s account of
Shannon’s post-assault behavior toward him. Lastly, the trial
court did not abuse its discretion when it denied the motion for a
new trial. 20

¶72 Affirmed.

20. Raheem also argues that the cumulative effect of the three
errors he raises on appeal was prejudicial. “A reviewing court will
reverse a jury verdict under the cumulative error doctrine only if
the cumulative effect of the several errors undermines confidence
that a fair trial was had.” State v. Killpack, 2008 UT 49, ¶ 56, 191
P.3d 17 (quotation simplified). Because there are no errors to
accumulate here, this argument necessarily fails. See State v.
Martinez-Castellanos, 2018 UT 46, ¶ 40, 428 P.3d 1038 (stating that
the cumulative error “doctrine will not be applied when claims
are found on appeal to not constitute error, or the errors are found
to be so minor as to result in no harm”) (quotation simplified);
State v. Modes, 2020 UT App 136, ¶ 12 n.5, 475 P.3d 153 (“Because
we conclude that there are no errors to accumulate here, the
cumulative error doctrine is inapplicable in this case.”) (quotation
simplified).

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