State v. Newberry

                          2025 UT App 176



                THE UTAH COURT OF APPEALS

                         STATE OF UTAH,
                            Appellee,
                               v.
                    ROBERT GILHAM NEWBERRY,
                           Appellant.

                             Opinion
                         No. 20230121-CA
                     Filed November 28, 2025

           Third District Court, Salt Lake Department
               The Honorable Amber M. Mettler
                          No. 211901783

       Freyja Johnson, Rachel Phillips Ainscough, and Anna
                 Grigsby, Attorneys for Appellant
              Derek E. Brown and David A. Simpson,
                      Attorneys for Appellee

     JUDGE JOHN D. LUTHY authored this Opinion, in which
    JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1     Robert Gilham Newberry was convicted of unlawful
sexual activity with a minor, Becca. 1 He now asks us to reverse his
conviction, asserting that (1) the district court abused its
discretion by admitting evidence in violation of rule 404(b) of the
Utah Rules of Evidence and (2) his trial counsel (Counsel)
rendered ineffective assistance by (a) failing to object to additional
evidence Newberry argues was inadmissible under rule 404(b)
and (b) eliciting certain testimony from Becca during cross-




1. A pseudonym.
                        State v. Newberry


examination. We disagree with Newberry’s assertions and affirm
his conviction.


                        BACKGROUND 2

                   Becca’s Adoption and Family

¶2     Becca was adopted by her grandparents when she was
seven years old. She was biologically related to her grandmother
(Grandmother) but not her grandfather (Grandfather). 3
Grandfather was Newberry’s biological grandfather. When Becca
first moved in with her grandparents at the time of her adoption,
Newberry lived with them for a time. After he moved out, he kept
in touch primarily with Grandfather and did not see Becca for
several years.

             The Family’s Move from Kansas to Arizona

¶3     In May 2020, Becca, her siblings, and her grandparents
moved from Kansas to Arizona. Becca’s biological father and
Newberry went to Kansas to help with the move. Becca was
fourteen at the time, and Newberry was thirty-four.

¶4    The family used multiple vehicles to make the move to
Arizona—“two small cars, two trucks, and a U-Haul.” Initially,
Newberry drove one of the trucks, and early in the drive, Becca



2. “In an appeal from a jury trial, we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly, and we present conflicting evidence only as
necessary to understand issues raised on appeal.” State v. Kufrin,
2024 UT App 86, n.1, 551 P.3d 416 (cleaned up).

3. Becca’s biological mother was Grandmother’s biological
daughter.


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                         State v. Newberry


began to ride alone with him. She “wanted to catch up with him”
and “tell him about [her] life.” As they drove, Newberry told
Becca that she was the prettiest of her siblings and that she “had
a nice body.”

¶5     At the family’s first overnight stop, in Amarillo, Texas,
Becca slept in the truck she had been riding in because the motel
room was “full.” Newberry joined her in the truck. Before they
went to sleep, Newberry told Becca that she “had nice breasts,”
and he suggested that Becca “should Facetime [her] boyfriend
while [Newberry went] down on [her].” Becca understood this to
mean that Newberry wanted to “perform oral sex on [her],” and
she “laughed [the comment] off because [she] thought he was
joking.” But Newberry kept asking, and Becca eventually
“pretended that [she] was sleeping so that he would stop asking.”

¶6     When Becca awoke the next morning, Newberry told her
that he had “jerked off while [she] was sleeping.” He then said
that he “wouldn’t have cared” if she had been awake. Becca
“didn’t say anything” in response.

¶7     Later that day, as the family continued to their next stop,
Becca and Newberry were again riding alone, this time in the
U-Haul. Becca began to feel ill, and Newberry told her that she
could put her head on his lap. She did, and while she rested,
Newberry moved his hand onto her waist, then her stomach, then
her breasts. “He then slid his hand into [her] shorts” and
penetrated her vagina with his fingers. Becca “just laid there,” not
knowing what to do, until about ten minutes later, when the
family stopped at a gas station and they “all went to use the
restroom.” After they got back on the road, Newberry again
touched Becca’s vagina until she “told him to stop because it
hurt.”

¶8   When the family stopped again for the night—this time
somewhere between Albuquerque, New Mexico, and Flagstaff,



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                        State v. Newberry


Arizona—Newberry and Becca stayed in the U-Haul. Before they
fell asleep, Newberry kissed Becca, afterward telling her, “Wow.
You are a good kisser.” He then “tried to do sexual things again,”
but Becca told him to stop, concerned they were “going to get
caught.”

¶9     The next day, the family continued driving and eventually
arrived at the home in Arizona.

                         The Trip to Utah

¶10 By the time the family arrived at the home in Arizona,
Newberry had missed the flight he had planned to take back to
Utah, where he lived. Grandfather suggested that Becca and her
seventeen-year-old sister (Sister) drive with Newberry to Utah so
they could meet Newberry’s wife and children. Newberry, Becca,
and Sister left for Utah the following day.

¶11 After arriving in Utah, Becca and Sister stayed with
Newberry and his family in their apartment for four or five days.
During that time, Newberry and Becca went on two or three walks
alone at night. On one of those walks, they saw some Monster
energy drink cans on a sidewalk, and Newberry began counting
them, saying, “One Monster, two Monster”; “then he grabbed
[Becca’s] butt and said, ‘Three Monster.’” Becca “just laughed.”

¶12 On a subsequent walk, Newberry and Becca “were about
to head back up to the apartment” when he asked her if she
wanted to go for a drive. She agreed. But when they got in
Newberry’s car, rather than start the car, Newberry began kissing
Becca. They then engaged in sexual intercourse. Their intercourse
was interrupted when a truck pulled into a parking stall a couple
of spots away from them, causing them to stop having sex. As
they walked back to the apartment, Newberry told Becca “that he
had slept with thirty-five women and [she] was the best.”




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                         State v. Newberry


¶13 Once they were in the apartment and Becca had gone to the
living room where she and Sister slept, Newberry messaged Becca
and asked whether she had “finished.” When she responded that
she had not, Newberry went to the living room, knelt in front of
the recliner Becca was in and, as Sister slept on a nearby couch,
attempted to pull Becca’s pants down. Although Becca “told him
no,” “he kept trying.” But “eventually he stopped.”

¶14 A day or two later, Becca and Sister drove back to Arizona.
During that drive, Becca told Sister about what had happened in
Newberry’s car. Sister told Grandfather, who told Grandmother,
and Grandmother called the police.

     The Charges and the State’s Notice of Rule 404(b) Evidence

¶15 Newberry was charged with one count of unlawful sexual
activity with a minor based on the sexual intercourse that
occurred in Utah in Newberry’s car. The case proceeded to a jury
trial.

¶16 Prior to trial, the State provided notice to Newberry that it
planned to introduce evidence that might fall under rule 404(b) of
the Utah Rules of Evidence. 4 Specifically, the notice alleged that
before the charged offense, Newberry and Becca had “spent
several days together” “outside of this jurisdiction” and that,
“[d]uring this time, other sex acts [had] occurred” that were “not
charged here.” The notice then indicated that the State “intend[ed]


4. Rule 404(b) provides that “[e]vidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in
conformity with the character.” Utah R. Evid. 404(b)(1). It also
provides, however, that such evidence “may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Id. R. 404(b)(2).


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                         State v. Newberry


to introduce evidence of [this] other conduct between” Newberry
and Becca.

 The Parties’ Arguments Regarding the State’s Rule 404(b) Evidence

¶17 On the day of jury selection, Counsel brought the State’s
rule 404(b) notice to the court’s attention. The prosecutor clarified
that the other incidents the State planned to introduce were of
Newberry telling Becca the morning after they slept in the truck
that he had “jerked off” next to her while she slept (the
masturbation incident) and of Newberry inserting his fingers into
Becca’s vagina the next day as she laid her head on his lap in the
U-Haul (the touching incident). The prosecutor said the State
planned to introduce these incidents not to prove Newberry’s
“character or propensity to engage in sexual behavior with
underaged females” but rather to show Newberry’s “motive,”
“mindset,” and “intent.” The court was initially “a little bit
skeptical” of whether evidence of the masturbation incident and
of the touching incident was admissible under rule 404(b), saying
that it found “sort of preposterous” the “suggestion that [the
charged incident] was an accident.”

¶18 The prosecutor persisted, however, arguing that “the fact
that there was some history between [Newberry and Becca], some
comments that were made by [Newberry] before, some attempts
at initiating sexual contact before, [spoke] very highly to the fact
that it happened once he had an opportunity with [Becca] here in
Utah.” The prosecutor asserted that without evidence of the
masturbation incident and of the touching incident, the charged
incident would “look[] very isolated” and “strange in the eyes of
the jury.” The prosecutor continued,

       It’s not propensity [evidence.] . . . I would call this
       the same criminal episode, actually. I think this is
       [Newberry] engaging in repeated sort of flirting or
       coming on to the alleged victim. It’s not propensity



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                        State v. Newberry


      because it doesn’t speak to any other victims. It
      doesn’t say that he has a propensity to try to engage
      in sex with minors, it just shows his interest, his
      sexual interest in the alleged victim on this occasion
      while they’re conducting this family move.

¶19 Counsel countered by arguing that the masturbation
incident and the touching incident did go to propensity and
occurred at a time too attenuated from the charged incident to
constitute the same criminal episode. Counsel also argued that
evidence of these other incidents was “substantially more
prejudicial than probative” and was therefore inadmissible under
rule 403 of the Utah Rules of Evidence.

¶20 The court reserved ruling on the admissibility of evidence
regarding the masturbation incident and the touching incident
until the following day.

      The Court’s Ruling on the State’s Rule 404(b) Evidence

¶21 The next day, before opening statements and preliminary
jury instructions, the court ruled that evidence of the
masturbation incident and of the touching incident would be
admissible. It explained:

      [T]he [c]ourt is persuaded that the evidence of the
      other two incidents [is] being offered for the proper
      non-character purpose of demonstrating an
      ongoing behavior pattern, which includes
      [Newberry’s] abuse or pursuit of [Becca]. . . . [I]t’s
      legitimately part of a narrative the State intends to
      show[,] including [Newberry’s] access to and sexual
      pursuit of [Becca] . . . .

             The evidence is relevant to establishing that
      non-character purpose [and] . . . puts in context the
      victim’s allegations and goes to her credibility. And


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                         State v. Newberry


      while the evidence is prejudicial, the [c]ourt finds
      that the probative value of the evidence is not
      substantially outweighed by the danger of any
      unfair prejudice, as it seems to the [c]ourt that the
      question really is the jury’s credibility
      determinations . . . [.] [T]he jurors will either believe
      or disbelieve the testimony based on the victim’s
      credibility and not [on] whether she says it
      happen[ed] one time, or three times, or six times.

                       The Evidence at Trial

¶22 During its case in chief, the State called Becca, Sister,
Grandmother, and a detective (Detective) to testify. Becca
recounted the masturbation incident, the touching incident, and
the charged incident of sexual intercourse in Newberry’s car. She
also recounted the other incidents of sexual conduct by Newberry
outlined above, namely (1) Newberry encouraging her to allow
him to perform oral sex on her while she Facetimed her boyfriend;
(2) Newberry kissing her on the last night of the move;
(3) Newberry grabbing her buttocks while counting Monster
energy drink cans; (4) Newberry commenting that “he had slept
with thirty-five women and [she] was the best”; and
(5) Newberry—after engaging in sexual intercourse with her in
his car—entering the room where Becca was staying and trying to
remove her pants. Counsel did not object to Becca testifying about
these additional incidents.

¶23 The prosecutor also asked Becca about her texting with
Newberry during the move. Becca testified that she had used the
messaging app Snapchat to communicate with Newberry. She
stated that one reason for using Snapchat was because “things
disappear on there.” Becca acknowledged that messages
exchanged on Snapchat stay on the user’s phone no more than
twenty-four hours unless the user “affirmatively save[s] them.”
She also testified that pictures and videos shared via Snapchat



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                        State v. Newberry


similarly “disappear” and become unrecoverable unless the user
takes screenshots of them.

¶24 On cross-examination, Counsel asked Becca whether her
phone had been “in service” during the trip. When she said it had
not, Counsel asked how she had been able to use Snapchat. Becca
said she had accessed the app via Wi-Fi and by using hotspots
from other people’s phones. Counsel then asked Becca whether
she and Newberry had exchanged pictures via Snapchat. Becca
said they had. When Counsel then asked Becca “what photos”
they had exchanged, Becca said they were “inappropriate ones”
and described them as “[n]ude pictures.” Becca said that the
pictures she sent Newberry included both photos taken before the
move and photos taken during the move.

¶25 On redirect examination, Becca testified that she first
showed Newberry some nude pictures of her while they were in
the truck and that she then logged into her Snapchat account on
Newberry’s phone and gave him the password to the “my eyes
only” part of her account, “[w]here you can hide pictures with a
password.” Becca then testified that she later “saw pictures of
[her] saved on [Newberry’s] phone” that had come from the “my
eyes only” part of her account. On recross-examination, Becca
testified that the photos she showed Newberry from before the
move were “photos for [her] boyfriend.”

¶26 Sister then testified, recounting facts regarding the family’s
move, the trip she and Becca took with Newberry to Utah, her
observations of Newberry and Becca, and Becca’s demeanor when
she disclosed the sexual intercourse with Newberry.
Grandmother likewise testified about the move and her
observations of Newberry and Becca during the move.

¶27 Detective testified that the contents of Becca’s and
Newberry’s phones had been forensically extracted and that she
had reviewed those extractions and found nothing of evidentiary



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                         State v. Newberry


value. She further testified that she sent a warrant to Snapchat for
the contents of Becca’s and Newberry’s Snapchat accounts and
received a report back saying the contents of any communications
between Newberry and Becca were unavailable. On cross-
examination, Detective explained that if a user takes a screenshot
of a picture received via Snapchat, the photo can be saved to the
phone, which would make it viewable in an extraction, “even if
Snapchat had deleted the picture.” Detective also agreed that
Snapchat data on a phone “doesn’t always delete.”

¶28 During the defense’s case in chief, Newberry and his wife
testified. Newberry’s wife talked about their car, their child car
seats, and the size and configuration of those seats in the car. She
also testified that Newberry suffered from post-traumatic stress
disorder (PTSD) “from his seven years in the military.” She
explained that he would occasionally experience “PTSD
episodes” lasting an hour and a half or longer that were
“debilitating” and during which he would “duck for cover” and
“shelter in place.” She stated that on the night of the charged
incident, she heard fireworks outside, became concerned that
Newberry was having a PTSD episode, called his phone, and got
no answer, which was not unusual because he often kept his
phone on silent. She testified that when Newberry and Becca
returned home a few minutes later, Newberry was “having an
episode.”

¶29 Newberry testified that Becca had fabricated not just the
charged incident but also the other alleged sexual conduct from
before and after the charged incident. He stated that during his
and Becca’s walk on the evening of the charged incident, there
were holiday fireworks that caused him to have PTSD symptoms
and need to “put [his] back to the [nearby] apartments and kind
of get down on [his] haunches” for about ten minutes to “calm
[him]self down.”




 20230121-CA                    10              2025 UT App 176
                         State v. Newberry


                   Counsel’s Closing Argument

¶30 During closing arguments, Counsel said that even the
prosecutor had “talked about how there [was] not a lot of
evidence to prove [that the charged incident] happened.” Counsel
then acknowledged that “there [was] also just not a lot of evidence
to prove it didn’t happen.” Thus, she implicitly cast the case as a
referendum on Becca’s credibility, asserting that there was a lack
of corroboration for Becca’s account of the charged incident and
the other incidents of sexual contact. Then Counsel contended
that there were “a lot of unknowns . . . when it came to the cell
phone.” She argued,

      [J]ust because the State[] or I tell you something[, it]
      doesn’t mean you use that just to fill in all of your
      blanks. If you look at exactly what was said here
      today, . . . [t]here [were] allegations that there was a
      cell phone extraction.

              But . . . [Detective] did not tell you . . . how
      . . . extractions work. And because she didn’t
      explain, there is nothing in evidence to tell you that
      if something is extracted [from] a cell phone[,] [the
      extraction includes] everything in the cell phone.
      That’s not in evidence.

             Also there was this testimony about how
      there was a Snapchat extraction; right? What . . . we
      know is that [Becca] had other pictures in her
      Snapchat that she had saved. Otherwise, why
      would it still be there[,] because she had photos
      from before in her Snapchat[?] The only way it’s
      there is if she saved it.

            At some point those photos were also gone
      because [Detective] said there was nothing in the




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                         State v. Newberry


      Snapchat history . . . between the two of them. I
      don’t know if that means they were never there or
      she deleted them at some point.

¶31 Later, Counsel returned to the topic of Becca’s phone,
saying,

      I talked a little about the cell phone dump . . . .

             ....

             . . . [Detective] said there was nothing of
      evidentiary value in the cell phone or the Snapchat
      dump that she saw. But what does that mean? . . .
      [D]oes that mean there is no evidence that
      [Newberry] and [Becca] communicated period? I
      don’t know if they were even friends on Snapchat.

              And that’s kind of what I’d like to say is there
      [are] just a lot of unknowns with the phone. And I’m
      not going to sit here and try to tell you this is what
      it means because it’s not in evidence. And when you
      go back to deliberate, you can’t consider all of the
      things that . . . [were not] in testimony.

¶32 The jury convicted Newberry of engaging in unlawful
sexual activity with a minor, and Newberry filed a timely appeal.


           ISSUES AND STANDARDS OF REVIEW

¶33 On appeal, Newberry contends that the district court erred
in admitting Becca’s testimony about the masturbation incident
and the touching incident under rule 404(b) of the Utah Rules of
Evidence. “Generally, we review a trial court’s decision to admit
evidence under rule 404(b) for an abuse of discretion.” State v.
Courtney, 2017 UT App 172, ¶ 19, 424 P.3d 198. But “the district



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                         State v. Newberry


court’s interpretation of the Utah Rules of Evidence . . . presents a
question of law that we review for correctness.” State v. Biel, 2021
UT 8, ¶ 21, 484 P.3d 1172.

¶34 Newberry also asserts two claims of ineffective assistance
of counsel: one based on Counsel’s failure to object to Becca’s
direct-examination testimony about additional sexual conduct by
Newberry toward Becca and one based on Counsel eliciting
Becca’s testimony about her and Newberry exchanging nude
photos via Snapchat. “When a claim of ineffective assistance of
counsel is raised for the first time on appeal, there is no lower
court ruling to review and we must decide whether the defendant
was deprived of the effective assistance of counsel as a matter of
law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587
(cleaned up). 5


                            ANALYSIS

                     I. Evidentiary Challenge

¶35 Newberry asserts that the district court should have
excluded Becca’s testimony about the masturbation incident and



5. Newberry also argues that we should reverse his conviction
based on the cumulative error doctrine. “We have held elsewhere
that the cumulative error doctrine does not apply when there is
no other error with which to cumulate trial counsel’s non-
prejudicial presumed errors.” State v. Smith, 2025 UT App 35, ¶ 84,
566 P.3d 811 (cleaned up), cert. denied, 570 P.3d 660 (Utah 2025). In
our analysis, we identify only one presumed error, and we
determine that it did not prejudice Newberry. See infra note 6.
Because there are no additional errors to accumulate with that
presumed but individually non-prejudicial error, the cumulative
error doctrine does not apply. See Smith, 2025 UT App 35, ¶ 84.


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                         State v. Newberry


the touching incident under rules 404(b) and 403 of the Utah Rules
of Evidence. For the reasons set forth below, we disagree.

¶36 As noted above, under rule 404(b), “[e]vidence of a crime,
wrong, or other act is not admissible to prove a person’s character
in order to show that on a particular occasion the person acted in
conformity with the character.” Utah R. Evid. 404(b)(1). However,
the rule provides that such evidence “may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Id. R. 404(b)(2).

¶37 In State v. Reed, 2000 UT 68, 8 P.3d 1025, our supreme court
applied rule 404(b) in a case involving evidence of sexual contacts
with a child in addition to the charged conduct. There, the
defendant, while in his late twenties, befriended a ten-year-old
boy and visited him when his mother was not at home, taking him
to various places and activities. See id. ¶¶ 2‒3. “From very early in
the relationship, [the defendant] began having sexual contact with
the victim,” and “[t]he sex acts, some twenty to thirty incidents,
. . . continued over three and one-half years.” Id. ¶ 6. Eventually,
the defendant was charged with and convicted of, among other
things, one count of aggravated sexual abuse of a child. See id. ¶ 1.

¶38 Under the statutory scheme at the time, to establish
aggravated sexual abuse of a child, the State was required to
prove, in conjunction with the charged incident of abuse, that
more than five separate acts occurred that if committed in Utah
would constitute one of several identified crimes against a child.
See id. ¶ 21. In light of that scheme, the supreme court had
previously held that when a defendant was charged with
aggravated sexual abuse of a child, the defendant’s guilt on the
primary charge of sexual abuse was to be determined first by the
trier of fact before evidence of the aggravating acts was adduced.
See id. ¶ 22. Then, if the jury convicted on the primary charge,
evidence of the additional acts could be presented “and a second



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                          State v. Newberry


verdict returned determining whether the defendant [was] guilty
of aggravated sexual abuse or simple sexual abuse.” Id. (cleaned
up).

¶39 However, the Reed defendant’s attorney had not requested
a bifurcated trial, and the trial court had not ordered one. See id.
¶¶ 1, 20. On appeal, the defendant claimed that these failures
constituted ineffective assistance of counsel and plain error,
respectively. See id. ¶ 20. In response, our supreme court
explained that the basis for the bifurcated procedure called for in
the caselaw was “the principle that evidence of bad character or
unrelated prior crimes is prejudicial because of the tendency of a
fact finder to convict the accused because of bad character rather
than because he or she is shown to be guilty of the offenses
charged.” Id. ¶ 23 (cleaned up). But the supreme court also
observed that “notwithstanding the law’s concern with bad
character evidence, there are times when evidence of uncharged,
related criminal acts is admissible, so long as it is not introduced
for an improper purpose.” Id. ¶ 24 (cleaned up). “Evidence of
other crimes, wrongs, or acts may be admitted,” the court
explained, “if it has a special relevance to a controverted issue and
is introduced for a purpose other than to show the defendant’s
predisposition to criminality.” Id. (cleaned up). The court noted
that these principles are “formalized in rule 404(b) of the Utah
Rules of Evidence” and that rule 404(b)’s analysis had “direct
application to the question of evidence of aggravating acts in the
guilt phase” of that case. Id. ¶ 25. Specifically, the court explained
that to avoid the requirement of bifurcation, it had to first be
shown that “the evidence of the aggravating factors [was] offered
for a noncharacter purpose under rule 404(b).” Id.

¶40 Turning to an analysis of whether evidence of the
aggravating incidents of abuse was admissible in a trial of the
primary charge under rule 404(b), the court then stated,




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                        State v. Newberry


      In cases of child abuse, including child sexual abuse,
      evidence of specific instances of the defendant’s
      treatment of the child is relevant to establish not
      merely a general disposition for violence or ill-will
      towards all children, but to establish a specific
      pattern of behavior by the defendant toward one
      particular child, the victim. Likewise, the evidence
      of multiple instances of sexual contact with the
      victim in this case does not merely demonstrate [the
      defendant’s] general character or disposition, but
      instead demonstrates an ongoing behavior pattern
      which included [the defendant’s] abuse of the
      victim. Specifically, the evidence demonstrated the
      manner in which [the defendant] intensely pursued
      the victim over a three-and-a-half-year period in
      order to gain opportunity to commit the unlawful
      sexual acts. This pattern also revealed the extensive
      preparation and planning in which [the defendant]
      engaged to create opportunities for sexual contact
      with the victim.

Id. ¶ 26 (cleaned up). In short, the Reed court indicated that
evidence of a defendant’s “multiple instances of sexual contact”
with a single child victim may be admissible under rule 404(b) to
show “preparation,” “planning,” or “a specific pattern of
behavior by the defendant toward one particular child.” Id.

¶41 In State v. Verde, 2012 UT 60, 296 P.3d 673, abrogated in part
on other grounds by State v. Green, 2023 UT 10, 532 P.3d 930, the
supreme court expanded on the same general principle when it
explained that under rule 404(b), the prosecution has “the right to
present evidence with broad narrative value beyond the
establishment of particular elements of a crime.” Id. ¶ 28 (cleaned
up). This is so, the court explained, because “people who hear a
story interrupted by gaps of abstraction may be puzzled at the
missing chapters in the prosecution’s case” and “evidence may



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                          State v. Newberry


thus be appropriately aimed at completing the missing chapters
in the prosecution’s case” and allowing it “to tell a complete
story.” Id. (cleaned up). Then we relied on Verde in State v. Labrum,
2014 UT App 5, 318 P.3d 1151, to conclude that “other acts
evidence may be admissible under rule 404(b) to show context” as
long as the other acts evidence is “carefully limited to narrative
evidence offered in support of the elements of the crime at issue.”
Id. ¶ 22.

¶42 Shortly after our opinion in Labrum, the supreme court in
State v. Lucero, 2014 UT 15, 328 P.3d 841, abrogated in part on other
grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016, again
endorsed the idea that evidence of child abuse involving the same
victim and the same defendant that occurred prior to the charged
act of child abuse may be admissible. See id. ¶ 14 n.7. But this time,
the court’s explanation shifted; specifically, the court no longer
classified evidence of prior abuse against the same victim as
“other” acts to which rule 404(b) applied yet provided an
exception. See id. Instead, the court appears to have embraced the
notion that a prior incident of child abuse against the same victim
may be deemed to be “part of [a] continuing narrative rather than
an independent act.” Id. (emphasis added). The court explained,

       Since rule 404(b) applies only to evidence that is
       extrinsic to the crime charged, [classifying prior
       incidents of abuse involving the same victim as
       being part of a continuing narrative] would
       preclude applicability of the rule altogether. This is
       because rule 404(b) applies only to “other” acts—if
       the evidence of prior acts is inextricably intertwined
       with the crime that is charged, . . . then rule 404(b)
       would not apply. Rather, the act would be
       considered part of the case narrative and have
       important probative value that bears directly on the
       crime charged.




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                        State v. Newberry


Id. (cleaned up). Although the court concluded that “[t]he prior
instance of abuse” in Lucero was “disconnected from” the charged
incident of abuse in that case and, thus, did not apply the
foregoing principle regarding intrinsic evidence, id., its
articulation of the principle was phrased as an endorsement.

¶43 Indeed, in State v. Main, 2021 UT App 81, 494 P.3d 1056, we
relied on the principle set forth in Lucero. In Main, the defendant
was charged with murder and eleven other crimes. See id. ¶¶ 9‒
10. “The defense successfully moved to bifurcate the [other]
eleven charges from the murder charge.” Id. ¶ 10. But at the trial
on the murder charge, the district court “realized that the
evidence related to the bifurcated charges was inextricably
intertwined with the facts presented in the murder case,” and it
admitted evidence related to the bifurcated charges in the murder
trial. Id. ¶¶ 10, 19. The defendant was convicted of murder and
appealed, challenging the admission of evidence related to the
bifurcated charges under rule 404(b). Id. ¶¶ 14, 18. Relying on
Lucero, we rejected his challenge, explaining that because the
other charges were “part of the case narrative and ha[d] important
probative value that [bore] directly on the crime charged,” rule
404(b) did “not apply.” Id. ¶¶ 18, 21 (quoting Lucero, 2014 UT 15,
¶ 14 n.7).

¶44 In sum, since at least as early as Reed, our caselaw has
allowed in child sexual abuse cases evidence of the defendant’s
uncharged acts of abuse against the same victim “to establish a
specific pattern of behavior by the defendant toward one
particular child.” State v. Reed, 2000 UT 68, ¶ 26, 8 P.3d 1025
(cleaned up). Evidence of that character has since been described
as evidence offered “to show context,” Labrum, 2014 UT App 5,
¶ 22, and “evidence with broad narrative value,” Verde, 2012 UT
60, ¶ 28. And it is now most properly denominated intrinsic
evidence, to which rule 404(b) simply does not apply, so long as
the uncharged acts are “inextricably intertwined with the crime
that is charged, or if both the charged crime and the prior act are


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                         State v. Newberry


considered part of a single criminal episode.” Lucero, 2014 UT 15,
¶ 14 n.7 (cleaned up); accord Main, 2021 UT App 81, ¶ 18.

¶45 This sort of intrinsic evidence is often crucial in child sexual
abuse cases. If a jury hears nothing more than “the bare facts of
the sexual encounter charged,” it will often be left with
“unanswered questions”—such as why the victim would have
agreed “to go along with the act” or how the defendant was able
to carry it out without being caught. State v. Truman, 249 P.3d
1169, 1177 (Idaho Ct. App. 2010). And if those questions are
unanswered, then the “break in the natural sequence of narrative
evidence” will artificially render the State’s case less “convincing”
and increase the chances of an unjust acquittal. Old Chief v. United
States, 519 U.S. 172, 189 (1997).

¶46 “Many sexual predators ‘groom’ their child victims over a
period of days, months, and even years” by attempting “to
develop a bond between the victim and offender and, ultimately,
make the victim more receptive to sexual activity with the
offender.” 7 Clifford S. Fishman & Anne Toomey McKenna, Jones
on Evidence § 57:70 (7th ed., Dec. 2024 update) [hereinafter Jones on
Evidence]. This often includes “conduct designed to gradually
acclimate the child to sexual topics and conduct.” Id. And in many
cases, the offender will begin with “less intrusive and less highly
sexualized forms of sexual touching” to “desensitiz[e] the victim
to future sexual contact” before later moving on to more
aggressive sexual acts. State v. Williams, 2018 UT App 96, ¶ 20 n.8,
427 P.3d 434 (cleaned up). Thus, “where a defendant charged with
abuse or molestation denies committing those acts, explicit sexual
‘grooming’ is highly relevant as evidence of preparation or steps
toward the ultimate goal.” Jones on Evidence at § 57:70.
Accordingly, we reaffirm that evidence of uncharged but
inextricably intertwined sexual conduct against the same child
victim is admissible—as intrinsic evidence—because showing
how the perpetrator groomed the victim bears directly on the
charged sexual offense.


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                          State v. Newberry


¶47 Moreover, our current approach—which deems such
evidence to be intrinsic to the crime charged and, thus, evidence
to which rule 404(b) does not apply—is sound. It is widely
embraced by other jurisdictions. See, e.g., United States v. Betts, 911
F.3d 523, 529‒30 (8th Cir. 2018) (classifying evidence of sexual
grooming as intrinsic evidence to which federal rule 404(b) does
not apply); State v. Ard, 361 So. 3d 473, 484 (La. Ct. App. 2022)
(holding that because the defendant’s “statements to [the victim]
provided narrative completeness to a continuous chain of events
that began with defendant ‘grooming’ the victim for rape years
before the offenses,” the statements were “part of ‘this crime,’
rather than being ‘other crimes’ evidence”); Chaparro v. State, 630
S.E.2d 645, 648 (Ga. Ct. App. 2006) (“That [the defendant]
provided cigarettes and alcohol to [his victim] was admissible . . .
since his actions in doing so were relevant to show the manner in
which [he] ‘groomed’ the child for victimization.”). But see, e.g.,
State v. Dinkins, 868 S.E.2d 181, 188 (S.C. Ct. App. 2021) (holding
that evidence of “a pattern of grooming” was admissible under
rule 404(b) as “evidence of [the defendant’s] motive and intent”).
And it has historical roots in our own caselaw. See State v. Hayes,
46 P. 752, 754 (Utah 1896) (“The surrounding circumstances . . .
may always be shown to the jury along with the principal facts.”).

¶48 Newberry resists a conclusion that the masturbation
incident and the touching incident were admissible under the
principle espoused in Reed because there is a procedural
incongruity between this case and Reed. Newberry is correct that
in Reed the defendant raised rule 404(b) while making an
ineffective assistance of counsel claim and a plain error claim, see
2000 UT 68, ¶ 20, while Newberry presents a preserved claim of
ordinary error in the district court’s evidentiary ruling. But as we
have demonstrated, the principle from Reed regarding grooming
evidence—namely, that it is admissible (albeit now as intrinsic
evidence) “to establish a specific pattern of behavior by the




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                         State v. Newberry


defendant toward one particular child,” id. ¶ 26 (cleaned up)—is
valid regardless of a case’s procedural posture.

¶49 Newberry also attempts to distinguish Reed on the facts. He
notes that Reed involved evidence of over twenty sex act incidents
as well as evidence of scores of other interactions showing that the
defendant “intensely pursued the victim over a three-and-a-half-
year period.” Id. ¶¶ 6, 26. He then contrasts those facts with the
circumstances of this case, where, in his words, “the State
provided two prior incidents, which occurred over one month.”
He further contrasts the circumstances of this case on the basis
that his “contact with Becca came about because of requests from
family members rather than any ‘extensive preparation and
planning’” on his part. (Quoting id. ¶ 26.) However, grooming is
grooming, whether it occurs over the course of a few days, a week,
a month, or years. And it is grooming whether it is accomplished
solely by the defendant’s own efforts or by the defendant taking
advantage of access to the child that is provided by others.

¶50 Finally, Newberry asserts that the district court abused its
discretion by not excluding evidence of the masturbation incident
and of the touching incident under rule 403 of the Utah Rules of
Evidence. Under rule 403, relevant evidence may be excluded “if
its probative value is substantially outweighed by a danger of . . .
unfair prejudice.” In his principal brief, Newberry explains rule
403 and notes the two cases cited by the district court when it
made its rule 403 determination. But he does not meaningfully
explain why evidence of the masturbation incident and touching
incident posed a danger of unfair prejudice that substantially
outweighed its probative value in showing a pattern of grooming
by Newberry toward Becca. Accordingly, we are unpersuaded
that the district court abused its discretion under rule 403.

¶51 For the foregoing reasons, we reject Newberry’s claim that
the district court abused its discretion by admitting evidence of
the masturbation incident and of the touching incident.



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                           State v. Newberry


                II. Ineffective Assistance of Counsel

¶52 Newberry also makes two claims of ineffective assistance
of counsel. First, he contends that Counsel rendered ineffective
assistance by failing to object to Becca’s testimony concerning
Newberry’s additional uncharged sexual conduct toward Becca.
Second, he asserts that Counsel rendered ineffective assistance by
eliciting testimony from Becca regarding her and Newberry’s
exchange of nude photos.

¶53 To establish a valid claim of ineffective assistance of
counsel, Newberry “must show that counsel’s performance was
deficient” and “that the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Failure to establish either prong of the test is fatal to an
ineffective assistance of counsel claim . . . .” State v. Hararah, 2023
UT App 77, ¶ 28, 534 P.3d 1129 (cleaned up), cert. denied, 540 P.3d
79 (Utah 2023). Here, we resolve each of Newberry’s claims under
the deficient performance prong, concluding that in each instance
he has failed to demonstrate deficient performance.

A.     Failure to Object

¶54 Newberry asserts that Counsel’s failure to object to Becca’s
testimony regarding incidents of sexual conduct between her and
Newberry other than the masturbation incident and the touching
incident constituted deficient performance. However, the district
court had already ruled that evidence of the masturbation
incident and of the touching incident was admissible to
“demonstrat[e] an ongoing behavior pattern, which include[d]
[Newberry’s] abuse or pursuit of” Becca because it was
“legitimately part of a narrative the State intend[ed] to show”
regarding Newberry’s “access to and sexual pursuit of” Becca.
And because evidence of Newberry’s additional sexual conduct
toward Becca would have been admissible under the same
rationale, Counsel could have reasonably decided that an



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                          State v. Newberry


objection to this additional evidence would have been futile. This
is especially so given our decision that the district court’s
evidentiary ruling was consistent with a proper application of
Utah law. “Where counsel could have reasonably believed that an
objection was futile, counsel has not performed deficiently” in
electing not to make such an objection. State v. Soto, 2022 UT App
107, ¶ 31, 518 P.3d 157 (cleaned up). Thus, Newberry’s first
ineffective assistance claim fails on this basis. 6




6. Newberry makes a separate argument regarding one of the
additional incidents of sexual contact. Specifically, he notes that
“the State elicited testimony that after [the charged incident], once
Becca and [Newberry] were back in the apartment, [Newberry]
attempted to pull Becca’s pants down and initiate sexual activity
while [Sister] was sleeping on the couch next to [Becca].”
Newberry implies that Counsel should have objected to the
evidence of this incident because this incident was not part of the
grooming that led up to the charged incident. But even if we
assume, without deciding, that Counsel performed deficiently by
failing to object to this incident, that deficient performance did not
prejudice Newberry’s case. Newberry has not explained how if
only this evidence—and not the evidence of the acts leading up to
the charged conduct—had been omitted, he would likely have
obtained a better result at trial. See generally State v. Hards, 2015 UT
App 42, ¶ 18, 345 P.3d 769 (“A defendant suffers prejudice when,
absent the deficiencies of counsel’s performance, there is a
reasonable likelihood that the defendant would have received a
more favorable result at trial.”). And we are not persuaded he
would have obtained a better result. Becca’s account of what
happened after the two returned to the apartment did not offer
additional support for her description of the sexual intercourse
that occurred in Newberry’s car because, as with Becca’s
testimony regarding the conduct in the car, there was no
                                                           (continued…)


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                         State v. Newberry


B.     Eliciting Testimony Regarding Nude Photos

¶55 Finally, Newberry contends that Counsel rendered
deficient performance by eliciting testimony from Becca about the
nude photos she and Newberry exchanged via Snapchat. We
determine that Counsel’s conduct in this regard was the product
of deliberate and reasonable trial strategy and, thus, did not
amount to deficient performance.

¶56 “When determining whether counsel rendered objectively
deficient performance, we consider all the circumstances and
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” State v.
Miles, 2020 UT App 120, ¶ 38, 472 P.3d 978 (cleaned up).
“Furthermore, we give wide latitude to trial counsel to make
tactical decisions and will not question such decisions unless there
is no reasonable basis supporting them.” Id. (cleaned up).

¶57 Here, it is apparent that Counsel’s eliciting of testimony
from Becca about exchanging nude photos with Newberry was a
deliberate tactical decision. During her closing argument, Counsel
suggested that there was not a lot of evidence tending to prove
the charged incident happened, and she acknowledged that
“there [was] also just not a lot of evidence to prove it didn’t
happen.” Thus, she implicitly cast the case as a referendum on
Becca’s credibility. In order to attack Becca’s credibility, Counsel
had quite clearly decided to try to demonstrate that there were
credibility problems with Becca’s testimony regarding her
Snapchat communications with Newberry and to thereby imply



corroborating evidence that anyone else witnessed Newberry
kneel in front of Becca in the apartment and attempt to persuade
her to continue engaging in sexual acts. Thus, we are not
convinced that the jury relied on the apartment evidence such that
exclusion of that evidence would have impacted the verdict.


 20230121-CA                    24              2025 UT App 176
                          State v. Newberry


that there must also be credibility problems with Becca’s
testimony regarding Newberry’s sexual conduct.

¶58 Apparently to this end, Counsel questioned Becca about
her Snapchat communications, eliciting testimony that Becca had
saved nude photos of herself in the “my eyes only” portion of her
Snapchat account, that she had allowed Newberry to access those
photos on his phone, and that she had seen at least one of those
photos saved on Newberry’s phone. From Detective, Counsel
then elicited testimony that the report of the forensic extractions
of Becca’s and Newberry’s phones did not produce anything of
evidentiary value. While the evidence of Newberry and Becca
exchanging nude photos was potentially damaging to Newberry,
it also allowed Counsel to call Becca’s credibility into question
based on the apparent lack of evidence of such photos in the
forensic phone extractions despite Becca saying that nude photos
of her had been saved to both her phone and Newberry’s phone.

¶59 Moreover, Becca’s testimony about exchanging nude
photos opened the door to Counsel being able to elicit an
acknowledgement from Becca that she showed Newberry nude
photos of herself as they rode together in the truck; that the nude
photos of her that were already on her phone were originally
intended for her boyfriend; and that Becca took additional nude
photos of herself during the trip for Newberry, thus perhaps
painting Becca in a negative light as well.

¶60 We have previously determined that eliciting evidence that
“paint[s] [a] victim[] . . . in a negative light” and makes the victim
“appear to be unsympathetic” is a reasonable defense tactic. State
v. Whitchurch, 2024 UT App 108, ¶¶ 57‒58, 554 P.3d 1166, cert.
denied, 564 P.3d 960 (Utah 2025). And we have also previously said
that “deciding between the pros and cons of allowing the jury to
hear evidence that has the potential to cut both for and against a
defendant’s case is a quintessentially tactical decision, which we
will not question unless there is no reasonable basis supporting



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                        State v. Newberry


it.” Id. ¶ 58 (cleaned up). Therefore, because we cannot say that
Counsel’s decision to elicit Becca’s testimony regarding the
exchange of nude photos constituted an unreasonable strategy, it
did not amount to deficient performance, and on that basis
Newberry’s second claim of ineffective assistance of counsel fails.


                         CONCLUSION

¶61 The district court did not err in admitting Becca’s
testimony regarding the masturbation incident and the touching
incident. Counsel did not render ineffective assistance by not
objecting to testimony regarding other incidents of inappropriate
comments and contact between Becca and Newberry. Nor did
Counsel render ineffective assistance by eliciting Becca’s
testimony regarding her exchange of nude photos with
Newberry. We therefore affirm Newberry’s conviction.




 20230121-CA                    26              2025 UT App 176