State v. Collier
State v. Collier, 2020 UT App 165 (Mortensen, J.)
Collier groped Co-worker in two incidents. Both incidents were caught on video tape, but both tapes fail to clearly show the sexual contact. Partner was present at one of the incidents. Partner was never called to testify that she did not witness the sexual contact. Collier was convicted of sexual battery arising from both incidents. He appeals, arguing ineffective assistance of counsel and for remand under rule 23B of the Utah Rules of Appellate Procedure. The Utah Court of Appeals affirmed, holding:
- Trial counsel did not provide ineffective assistance when he did not cross-examine co-worker using her preliminary hearing statements. Co-worker’s statements were not inconsistent, because that testimony did not contradict or conflict with her trial testimony. At trial, she merely provided additional testimony.
- Trial counsel did not provide ineffective assistance when he did not call Partner to testify at trial. Had Partner been called, the State could have introduced a sexually charged text message, bearing on her credibility. Counsel’s decision not to call Partner to keep the text message out of evidence was reasonably based on the text’s potential to rebut Partner’s testimony. Remand to admit Partner’s potential trial testimony under rule 23B is denied.