State v. Repsher

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2025 UT App 50
THE UTAH COURT OF APPEALS

                       STATE OF UTAH,
                          Appellee,
                             v.
                     RODD ADAM REPSHER,
                         Appellant.

                             Opinion
                        No. 20220980-CA
                       Filed April 10, 2025

           Eighth District Court, Vernal Department
              The Honorable Clark A. McClellan
                         No. 191800811

           Freyja Johnson and Hannah Leavitt-Howell,
                     Attorneys for Appellant
              Derek E. Brown and Andrew Peterson,
                     Attorneys for Appellee

    JUDGE RYAN M. HARRIS authored this Opinion, in which
  JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1     A jury convicted Rodd Adam Repsher—a high school
teacher—of various sexual crimes related to actions he took
toward a minor student. He appeals his convictions, asserting that
the trial court improperly admitted certain electronic messages
into evidence and that his trial counsel rendered constitutionally
ineffective assistance. We reject Repsher’s arguments and affirm
his convictions.
                          State v. Repsher


                         BACKGROUND 1

¶2      Repsher was the health teacher at Uintah High School in
Vernal, Utah. He was relatively young, for a teacher, and he
developed a reputation for being one of the “cooler teachers.” In
some ways, Repsher was less formal with students than other
teachers were, and this was purposeful—he testified that he was
attempting “to give the misfits of the school a place to be.” For
instance, he allowed students to hang out in his classroom
throughout the day, before and after school, sit on his desk, listen
to music or watch movies, and use swear words. He was also one
of the school staff members involved with a support group known
as the “Hope Squad,” which was designed to offer “suicide and
self-harm prevention” support for struggling students. In this
way, Repsher developed a rapport with many of the students;
some felt they could “go to him with anything” and that they
could “vent” to him or confide in him about personal matters and
family problems. One student described him as “very relaxed,
very approachable, just someone you could talk to.”

¶3     But this behavior raised red flags with the school’s
principal (Principal) and faculty members. After receiving initial
reports about Repsher’s interactions with some of his students,
Principal warned Repsher to set more appropriate boundaries.

¶4     One of Repsher’s students was Lisa, 2 who was a fifteen-
year-old sophomore when the two first met. Lisa and Repsher
became close; she spent considerable time in his classroom, and

1. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and we recite the facts accordingly.” State
v. Popp,
2019 UT App 173, n.1
,
453 P.3d 657
(cleaned up). In so
doing, “we present conflicting evidence only when necessary to
understand issues raised on appeal.”
Id.
(cleaned up).

2. A pseudonym.


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she confided in him about “mental health issues” and problems
she was having both in school and at home. As their relationship
deepened, they communicated often via email, sometimes late at
night. Lisa also frequently visited Repsher at a bike shop where
he sometimes worked as a second job. In their conversations,
Repsher assured Lisa that “he was there for [her], he was going to
take care of [her], and that [she] didn’t have anything to worry
about.” In time, Lisa came to view Repsher as her “savior.”

¶5     Repsher first kissed Lisa on her sixteenth birthday, toward
the end of her sophomore year, at the bike shop. Over the ensuing
months, as Lisa entered her junior year, the relationship grew
more intimate, involving “inappropriate touching” of Lisa’s
breasts and buttocks and, eventually, oral sex. Lisa testified that,
throughout her junior year, Repsher performed oral sex on her
and she performed it on him, on multiple occasions, and that these
events occurred in Repsher’s classroom, in the garage at his
house, and in the bike shop. Repsher discussed with Lisa the
possibility of having sexual intercourse, but they ultimately
decided against it because Lisa “wanted to wait until [she] was
18” and Repsher was concerned about Lisa becoming pregnant.
The two of them also discussed “running away together” and
living in another town where nobody knew their “background.”
During these discussions, Repsher assured Lisa that “age is just a
number and that nobody understood that what [they] had was
real and there wasn’t anything wrong with it.”

¶6     During Lisa’s junior year, reports reached Principal about
“girls draping themselves on” Repsher’s desk. Principal
documented these reports, told Repsher that she was “worried
for” him and about “how it looks,” and asked Repsher to “put an
invisible line around his desk and set some parameters.” At this
point, Repsher created a physical boundary around his desk using
Velcro and told students not to cross the line.

¶7    A few months later, toward the end of Lisa’s junior year,
Repsher was briefly placed on administrative leave while


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additional similar reports were investigated. During the
investigation, a police officer interviewed Lisa and asked her if
Repsher had ever acted inappropriately with her, and Lisa denied
that anything untoward had occurred. Lisa later testified that her
statements to the officer were untruthful and that she had “lied”
to protect Repsher. The investigation yielded no definitive
evidence of inappropriate behavior, and Repsher was allowed to
return to work after a few days.

¶8       Lisa didn’t tell anyone about her relationship with Repsher
until the summer after her junior year. One evening that summer,
Lisa met two of her friends—Alana and Stacie 3—at a park and
disclosed to them that she and Repsher were in a “relationship”
and that they had done “physical stuff” together, including oral
sex. Later that same night, Lisa, Alana, and Stacie continued this
conversation via group chat on Facebook’s messaging app. In
those messages, Lisa said that she had been “in a lot of pain over
this,” in part because she “had to go through all of this alone” and
without anyone else knowing. Alana told Lisa, “You at least need
to tell him that we know.” The next day, Lisa messaged Stacie and
Alana in the group chat: “He knows that you guys know. He isn’t
very angry but really scared? He’s worried about trusting you
guys with knowing.” Stacie asked, “Why? Does he think we’re
going to tell someone?,” and Lisa responded, “No he’s . . .
concerned and worried. He wanted me to emphasize how
important it is to not tell anyone, like it’s not just about losing his
job but he’d be taken to jail for at least seven years.” Lisa
continued, “He told me that he’s serious about us. He plans on
breaking up with [his adult girlfriend] after this last year of
teaching and then he wants to move to Seattle or Oregon and he
said that if I wanted to that he’d take me with him.”

¶9     Alana, who considered Repsher a friend, called Repsher to
see if what Lisa had told them was true. Repsher asked to meet
Alana in person, and at the meeting he confirmed that what Lisa

3. Pseudonyms.


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said was true; Repsher told Alana that he would tell others about
the relationship after Lisa graduated and that he wanted to wait
until then because it was “obviously . . . very dangerous.” Later
that night, Lisa and Alana walked to Repsher’s house, where
Repsher said, “Well, now that everything is out in the open,
there’s something I want to say,” and he then proceeded to kiss
Lisa in front of Alana.

¶10 A few months later, during October of Lisa’s senior year,
two of Repsher’s colleagues noticed behavior between Lisa and
Repsher that they considered unusual. One Friday evening,
several hours after school had ended, another teacher (English
Teacher) was walking the halls of the school when she saw
Repsher open his classroom door from the inside, look down the
hall, and then motion with his hand for someone to exit the
classroom. English Teacher then saw Lisa exit the classroom; Lisa
wasn’t wearing shoes. English Teacher had a “bad feeling” about
the incident and reported it to Principal.

¶11 Just a few days later, Repsher’s close friend and fellow
faculty member (Spanish Teacher) saw Repsher and Lisa together
in Repsher’s classroom. This incident also occurred in the late
afternoon, more than an hour after school had ended for the day.
Spanish Teacher went to Repsher’s classroom to share something
with him, and he saw Lisa sitting on top of a counter and Repsher
“pressed up” against her. Lisa’s “legs were basically around”
Repsher, and he had “his arms around her.” Spanish Teacher
could not see their faces, so he could not tell if they were kissing,
but he stated that “they could have been.” Spanish Teacher also
could not see their hands, so he could not tell what, if any,
touching was occurring. But he observed that “they were
extremely close,” and he knew that “there was no reason that [a
teacher] should ever be that close to a student.” It was “obvious”
to Spanish Teacher that he had “seen something bad” and that
Repsher was “doing something extremely inappropriate.”
Indeed, Lisa later testified that she and Repsher were kissing and
that her “hand was in Repsher’s pants, on his penis.”


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¶12 Spanish Teacher was “startled” by what he saw, and he
“turned and walked out of the classroom.” But Repsher called
after Spanish Teacher, eager to discuss the matter and “to try to
calm the situation down.” The two friends made “extremely
awkward small talk” for a few minutes before Spanish Teacher
“left and went home.” About ten minutes later, Repsher showed
up at Spanish Teacher’s house to discuss the situation further.
Over the course of an hour-long conversation, Repsher explained
to Spanish Teacher that “he was in a true relationship with” Lisa,
that he no longer had feelings for his current adult girlfriend, and
that he planned to leave town with Lisa after she graduated. In an
effort to persuade Spanish Teacher not to report the incident to
Principal, Repsher told Spanish Teacher that he had “real
feelings” for Lisa, that “love is love,” and that “age doesn’t
matter.” Spanish Teacher told Repsher that he was obligated to
report the incident, and Repsher responded by stating that he
would simply “lie” to investigators.

¶13 The next day, Spanish Teacher reported the incident to
Principal, as well as what Repsher had told him afterward. But
Repsher told Principal a different story: he claimed that Lisa had
been having a bad day and had asked for a hug of comfort, and
that he had given her one. He indicated that Spanish Teacher had
simply happened to walk in at an inopportune time and had
“gotten the wrong impression.” Principal initiated an
investigation, and she placed Repsher on administrative leave.
Lisa was interviewed again, and again she denied that
anything inappropriate had occurred with Repsher. Lisa later
testified that her statements in this interview were also untruthful
and that she had lied, again, to “protect [Repsher] and [their]
relationship.”

¶14 About two weeks later, while still on administrative
leave, Repsher resigned from his teaching position. Lisa remained
in a relationship with Repsher for another few months, until the
end of her senior year; she ended the relationship after she
graduated.


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¶15 Some two years later, Alana—who had remained in
contact with Repsher—learned that Repsher planned to apply for
another teaching position. Alana believed that Repsher should not
be permitted to teach again, and she contacted police and reported
Repsher’s previous conduct. Around the same time, Alana also
contacted Lisa and asked whether she wanted to be involved in
the investigation. Lisa agreed.

¶16 The State eventually charged Repsher with ten felony
counts: six counts of forcible sodomy, two counts of object rape,
and two counts of forcible sexual abuse. The case proceeded to a
jury trial. In his opening statement, Repsher’s trial attorney
(Counsel) began laying the framework for Repsher’s defense
theory that Lisa, Alana, and Stacie had fabricated the allegations
against Repsher, and that they had done so years after they
finished high school. In particular, Counsel told the jury that it
would be shown “some text messages between one of [Lisa’s]
friends and [Lisa],” sent several years after they graduated from
high school, “that say, hey, I’d like you to . . . help me get
[Repsher] taken care of, or something to that effect.” Counsel
argued that, at that point, Lisa “change[d] her story.” And later in
the opening statement, Counsel discussed Lisa’s credibility
directly, asserting that part of “the difficulty” presented in the
case was that each time Lisa was interviewed by officers during
high school, “she talks about different things happening at
different times, contradicting everything,” and Counsel posited
that jurors may “hear [Lisa] say that she initially lied” but Counsel
didn’t “know how [Lisa was] going to explain the inconsistencies
in each statement and in the internal inconsistencies.”

¶17 In support of its case, the State called as witnesses Lisa,
Alana, Stacie, Principal, Spanish Teacher, and English Teacher,
among others, who testified as to the events described above.

¶18 During her testimony, Lisa stated that she had experienced
some memory loss that she believed was attributable to the
trauma she had suffered from her interactions with Repsher. On


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direct examination, the State asked Lisa if she remembered
“anything about [her] senior year,” and Lisa responded, “Not
much honestly.” When asked why, Lisa testified, “Trauma likes
to do that to people.” The State then attempted to clarify, “Why
do you say trauma?” Lisa responded, “Because what I went
through was traumatic.”

¶19 On cross-examination, Counsel tried to impeach Lisa by
challenging the truthfulness of her allegations, pointing out that,
in some important respects, her trial testimony was different from
some of the statements she had made during high school,
including her repeated denials to investigators that anything
untoward had occurred between her and Repsher. For instance,
Counsel asked Lisa whether her memory of salient events might
have been better “three years ago,” and Lisa responded, “I
actually disagree with that. Not only do I have [post-traumatic
stress disorder (PTSD)], not only does PTSD affect memory,
because it controls what you remember or don’t depending on
how traumatic it is.” Lisa went on to state that she had received
electroconvulsive therapy, which she described as “a treatment
for people who are resistant to medication and regular therapy for
depression,” and she asserted that “one of the side effects is
memory loss.” When Counsel pressed her on some additional
discrepancies between her testimony and prior statements she
had made, Lisa stated, “That’s how I remembered it. Trauma is a
funny thing. Sometimes it skips out on the details.” Counsel
pressed again, asking, “Each time you’ve given an interview in
this case and you’ve sworn to tell the truth and each time it has
been different, you believe that to be completely normal, it doesn’t
feel wrong at all?” Lisa responded, “Do you remember talking
about my mental health? Do I have to explain it again?”

¶20 During Alana’s testimony, she described the Facebook
group chat that had taken place among Lisa, Stacie, and herself
the night Lisa had told them about her relationship with Repsher.
In connection with this testimony, the State attempted to
introduce into evidence an exhibit containing those messages (the


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Facebook Messages), but Counsel objected on both authentication
and hearsay grounds. As to authentication, Counsel argued that
the Facebook Messages were not properly authenticated
because Alana had “testified that . . . all these messages, if not
fabricated, can be modified and deleted,” and that the
screenshots of the Facebook Messages were “taken on her phone
sometime long after the fact.” The court rejected Counsel’s
argument and concluded that the messages had been sufficiently
authenticated, explaining that Alana “was a participant in the
communication. She’s the one that [took a] screenshot [of] them,
sent them to the police. She can identify what they are and how
they were given.”

¶21 As for the hearsay objection, the trial court first offered its
view that because Alana was testifying, her statements in the
Facebook Messages could come in without a hearsay problem.
The court then addressed Lisa’s and Stacie’s statements, asking
the State, “Is there any . . . exception to the hearsay rule with
respect to [Stacie] and [Lisa]?” The State first argued that their
statements were not being offered for their truth but, instead, to
“give[] context to the conversation” and to prove “that the
conversation happened.” The court then shifted the focus of the
inquiry regarding Lisa’s statements, asking whether they could be
“prior consistent statement[s]” that were not included in the
definition of “hearsay.” A discussion then ensued about whether
Lisa’s statements qualified as prior consistent statements, and at
the conclusion of this discussion the court expressly ruled that
Lisa’s statements in the Facebook Messages were admissible as
prior consistent statements.

¶22 After the State presented its case, Repsher took the stand to
testify in his defense. He denied ever having inappropriate
contact with Lisa, and he even indicated that he did not
remember her all that well because she was an “[a]verage
student.” While Repsher recalled an occasion where Alana and
others showed up at his house in the summer after Lisa’s junior
year, he testified that he did not remember whether Lisa was


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among them. In response to Spanish Teacher’s testimony, Repsher
testified that Lisa was having “an emotional breakdown” and had
asked him for a hug. Repsher testified that Spanish Teacher
happened to walk in at the “very end” of the hug, just as the two
were about to separate.

¶23 During closing argument, Counsel offered a summary of
the defense theory that had been discussed during opening
statement and supported during witness examinations: that Lisa,
Alana, and Stacie had made up the allegations against Repsher
years later, “[a]fter all the evidence was gone,” and that they were
motivated to do so by “high school pettiness.” Counsel argued
that the State presented “no physical evidence” and that “back
when [there] would have been actual physical proof, these girls
told a different story . . . [b]ut years later something changed.”

¶24 After deliberation, the jury acquitted Repsher on two
counts of forcible sodomy—the counts aimed at events that
allegedly occurred at the bike shop. But the jury convicted
Repsher on the other eight counts: four counts of forcible sodomy,
two counts of object rape, and two counts of forcible sexual abuse.
Later, the trial court sentenced Repsher to prison.


            ISSUES AND STANDARDS OF REVIEW

¶25 Repsher now appeals, and he asks us to consider two
issues. First, he challenges the trial court’s decision to admit the
Facebook Messages. “We review a court’s decision to admit
evidence for abuse of discretion.” State v. King,
2024 UT App 151,
¶ 13
,
559 P.3d 96
(cleaned up).

¶26 Second, he argues that Counsel rendered constitutionally
ineffective assistance by failing to object to parts of Lisa’s
testimony. “When an ineffective assistance claim is raised for the
first time on appeal, it presents a question of law.” State v. Rivera,
2022 UT App 44, ¶ 21
,
509 P.3d 257
.



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State v. Repsher


                            ANALYSIS

                    I. The Facebook Messages

¶27 Repsher’s first challenge concerns the trial court’s ruling
admitting the Facebook Messages into evidence. This challenge
has two components. First, he asserts that the Facebook Messages
were not properly authenticated. Second, he argues that Lisa’s
statements in the Facebook Messages were inadmissible hearsay.
We discuss these arguments, in turn, and reject them both.

                                 A

¶28 Repsher first contends that the State did not lay adequate
foundation to authenticate the Facebook Messages. Our
evidentiary rules require that an item of evidence be properly
authenticated, a process that requires the proponent of admission
of the item to “produce evidence sufficient to support a finding
that the item is what the proponent claims it is.” Utah R. Evid.
901(a). “Proper authentication does not require conclusive proof,
and the proponent has to make only a prima facie showing of
authenticity.” State v. Welsh,
2022 UT App 112, ¶ 36
,
519 P.3d 572
(cleaned up). The “process of authentication must be
distinguished from a finding of authenticity.” State v. Jacques,
924
P.2d 898, 901
(Utah Ct. App. 1996). “The district court is
responsible for the process of authentication, whereby it assesses
whether there is evidence sufficient to support a jury finding of
authenticity.” Welsh,
2022 UT App 112, ¶ 37
(cleaned up). But “the
jury is ultimately responsible for determining whether the
evidence is in fact authentic once the evidence is admitted.”
Jacques,
924 P.2d at 901
.

¶29 In this case, the State made a prima facie showing that the
Facebook Messages were authentic. First, Alana and Stacie
testified as to the contents of the Facebook Messages, specifically,
that the conversation in the group chat was a continuation of an
in-person conversation from earlier in the day in which Lisa told



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Alana and Stacie about her relationship with Repsher. Next,
Alana identified herself, Lisa, and Stacie as the three contributors
to the Facebook Messages. Alana also testified that she was the
one who had taken screenshots of the Facebook Messages and
provided them to law enforcement. She further testified that she,
Lisa, and Stacie referred to themselves as the “Three Musketeers,”
which was the name of their group chat. From this testimony, a
jury could reasonably find that the Facebook Messages were what
the State purported them to be—a conversation among Lisa,
Alana, and Stacie about Lisa’s relationship with Repsher. Thus,
the State carried its burden of making a prima facie showing of
authenticity. See United States v. Barber,
937 F.3d 965, 970
(7th Cir.
2019) (explaining that to “authenticate Facebook records and
messages, the government needed only ‘to produce evidence
sufficient to support a finding’ that the account belonged to [the
defendant] and the linked messages were actually sent and
received by him” (quoting Fed. R. Evid. 901(a))).

¶30 Repsher argues that this was not enough. Specifically, he
contends that such messages can be too easily fabricated, that
there was no verification that Lisa’s purported Facebook account
actually belonged to her, that no one observed any of the
declarant witnesses write or send the messages, and that Lisa’s
Facebook account had been deleted by the time Alana provided
law enforcement the screenshots of the Facebook Messages.
Repsher also points out that, although Lisa testified as a witness
at trial, the State did not question her about the Facebook
Messages to help lay foundation for their authentication.

¶31 But the State was not required to provide conclusive proof
that the Facebook Messages were authentic; indeed, it simply
needed to produce “evidence sufficient to support a jury finding of
authenticity.” Welsh,
2022 UT App 112, ¶ 37
(emphasis added)
(cleaned up). Repsher was free to make all of the arguments above
to the jury in an effort to discredit the authenticity of the Facebook
Messages. See Jacques,
924 P.2d at 901
(“[T]he jury is ultimately
responsible for determining whether the evidence is in fact


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authentic once the evidence is admitted.”). But whether the State
provided enough evidence to support a jury finding of
authenticity is a separate question, and the State satisfied its
burden of making a prima facie showing of authenticity. To be
sure, the State could have taken additional steps to demonstrate
authenticity—for instance, it could have asked Lisa about the
messages and asked her to authenticate them as well. However,
the State was not necessarily required to pursue that pathway to
authenticate the Facebook Messages; the pathway it selected was,
on this record, sufficient.

¶32 For these reasons, the trial court did not abuse its discretion
by concluding that the Facebook Messages were authenticated.

                                 B

¶33 Repsher also challenges the trial court’s ruling admitting
Lisa’s statements in the Facebook Messages as “prior consistent
statements” not included within the definition of “hearsay.” The
State takes issue with this argument on the merits but, as an initial
matter, it asserts that Repsher failed to preserve this challenge for
our review on appeal. We first address—and reject—the State’s
assertion that Repsher’s challenge is unpreserved. On the merits,
however, the State has the better of the argument.

                                 1

¶34 “Under our preservation rule, any issue brought on appeal
must be sufficiently raised to a level of consciousness before the
trial court such that the court has an opportunity to rule on it.”
State v. Centeno,
2023 UT 22, ¶ 54
,
537 P.3d 232
(cleaned up). “Our
preservation jurisprudence draws a distinction between issues
(which must be preserved) and arguments (which consist merely
of authority in support of a party’s position on an issue, and do
not need to be specifically made at the trial level in order to be
included in a brief on appeal).” Ocean 18 LLC v. Overage Refund
Specialists LLC (In re Excess Proceeds from Foreclosure of 1107



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Snowberry St.),
2020 UT App 54
, ¶ 17 n.1,
474 P.3d 481
(cleaned
up); see also Gressman v. State,
2013 UT 63, ¶ 45
,
323 P.3d 998
(“Issues must be preserved, not arguments for or against a
particular ruling on an issue raised below.”).

¶35 In situations “[w]here a district court itself raises and then
resolves an issue sua sponte,” that court “obviously had an
opportunity to rule on the issue,” and therefore “the basic
purpose[s] of the preservation rule” are satisfied. Helf v. Chevron
U.S.A., Inc.,
2015 UT 81, ¶ 42
,
361 P.3d 63
; see also Kell v. State,
2012
UT 25, ¶ 11
,
285 P.3d 1133
(holding that an issue was preserved
when “the district court not only had an opportunity to rule on
the issue . . . [but] it did rule on it”); State v. Cowlishaw,
2017 UT
App 181, ¶ 21
,
405 P.3d 885
(holding that an issue was preserved
when “the [district] court addressed the issue sua sponte”).

¶36 In this case, the issue of whether Lisa’s statements within
the Facebook Messages are “prior consistent statements” that fall
outside the definition of “hearsay” is adequately preserved for
our review, because the trial court addressed that issue and
squarely ruled on it. And given this, it does not matter that
Counsel was not the one who raised the question of whether
Lisa’s statements qualified as “prior consistent statements.”
Because the trial court raised that issue itself, invited discussion
on it, and then made a ruling on it, the propriety of the court’s
decision on that issue is preserved for our review on appeal.

                                   2

¶37 We now turn to the merits of the trial court’s ruling. Under
our evidentiary rules, hearsay evidence is generally not
admissible unless a rule of evidence or other law provides
otherwise. See Utah R. Evid. 802. The term “hearsay” is defined in
our rules as “a statement that . . . the declarant does not make
while testifying at the current trial or hearing” and that has been
offered into evidence “to prove the truth of the matter asserted in
the statement.”
Id.
R. 801(c). “In other words, hearsay is a



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statement that the declarant originally made outside of the
current trial or hearing and is now being used to prove the truth
of what was said.” State v. Green,
2023 UT 10, ¶ 83
,
532 P.3d 930
.

¶38 But the operative definition of hearsay excludes certain
statements from its ambit, including statements sometimes
referred to as “prior consistent statement[s].” See id. ¶ 84 (referring
to the “prior consistent statement exemption to the hearsay rule”).
The applicable rule of evidence states that, if the “declarant
testifies and is subject to cross-examination about a prior
statement,” that prior statement is “not hearsay” if it “is consistent
with the declarant’s testimony and is offered to rebut an express
or implied charge that the declarant recently fabricated it or acted
from a recent improper influence or motive in so testifying.” Utah
R. Evid. 801(d)(1)(B). Our supreme court has distilled these
provisions into a four-part test, stating that a statement can be
admitted into evidence “where the declarant (1) testifies, (2) is
subject to cross-examination, (3) the statement is consistent with
the declarant’s testimony, and (4) the testimony is offered to rebut
an express or implied charge that the declarant recently fabricated
it or acted from a recent improper influence or motive in so
testifying.” Green,
2023 UT 10, ¶ 84
(cleaned up). The court
clarified that this “exemption” from the hearsay ban “applies only
to premotive, consistent, out-of-court statements.”
Id.
(cleaned
up). “Its purpose is to admit statements that rebut a charge of
recent fabrication or improper influence or motive, not to bolster
the believability of a statement already uttered at trial.”
Id.
(cleaned up). Finally, and importantly for present purposes, “[t]he
rule does not require that the statement rebut every possible
motive to fabricate.” Id. ¶ 99.

¶39 In this case, the trial court did not abuse its discretion by
admitting Lisa’s statements as prior consistent statements. The
first three requirements for admission are clearly met here, and
Repsher does not contend otherwise: Lisa testified, was subject to
cross-examination, and her statements in the Facebook Messages
were consistent with her trial testimony. But Repsher contends


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that the fourth requirement is not met: he asserts that Lisa’s
statements in the Facebook Messages were not offered to rebut a
charge of recent fabrication.

¶40 The State disagrees, and it argues in response that Lisa’s
statements in the Facebook Messages were offered, at least in part,
to rebut Repsher’s specific argument that Lisa had fabricated her
allegations relatively recently, after finishing high school. As
noted, Counsel first advanced this theory during his opening
statement, arguing that Lisa had “change[d] her story” years later
after conspiring with Alana to “get [Repsher] taken care of.”
Counsel continued to press this theory during witness
examinations, specifically questioning Lisa’s credibility because
she was telling a different story at trial than she had told
investigators during high school. 4 The State acknowledges that
Counsel’s “precise theory of a motive to fabricate” is perhaps
somewhat “unclear from the record,” but it nevertheless observes
that Counsel did raise the post-hoc-fabrication theory in
Repsher’s defense. As the State sees it, this is enough to sustain
admission of Lisa’s Facebook statements as prior consistent
statements, because those statements were made during high
school and before any asserted post-graduation motive to “get
[Repsher] taken care of.”

¶41 In making its argument, the State relies on Green, where
our supreme court held that a prior consistent statement need not

4. Although we do not consider, as part of our analysis, any
statements made by Counsel during closing argument—after all,
statements made at that point in the trial cannot serve to open the
door to admission of things already placed in front of the jury—
we acknowledge the State’s point that, during closing argument,
Counsel summarized this theory by reiterating that Lisa (and
Alana and Stacie) had made up the allegations about Repsher’s
sexual activity with Lisa and that they had specifically waited to
do so until “[a]fter all the evidence was gone and it was their word
against” Repsher’s.


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“rebut every possible motive to fabricate.”
Id.
There, the court
observed that the defendant had “postulate[d] various
hypothetical motives for fabrication,” including wanting money
and notoriety, but the “main theory . . . in support of his claim that
the women fabricated their allegations [was] that they had been
influenced by” the publication of certain news articles.
Id.
¶¶ 88–
90. The defendant failed to “clearly articulate what about the
[news articles] motivated the women to accuse him,” but he
argued that “five of the six [complaining witnesses] did not report
being raped to the police until after at least one of the [news
articles] had been published.” Id. ¶ 89. Even though the
defendant’s fabrication argument lacked specificity and rested on
various theories, the court held that most of the complaining
witnesses’ statements were admissible because “the statements
that [the defendant] challenges were made long before [the date
of publication] and were offered to rebut his express charge of
fabrication.” Id. ¶ 90.

¶42 So too here. Even though Repsher’s fabrication argument
might be a touch unclear, that argument—first articulated during
opening statement—nevertheless opened the door for the State to
offer Lisa’s statements in rebuttal because Lisa’s statements in the
Facebook Messages were consistent with Lisa’s trial testimony
and appear to predate the fabrication theory Repsher was
attempting to set forth. Our conclusion in this regard is bolstered
by the fact that, in his reply brief, Repsher provides no opposition
to the State’s argument on this point.

¶43 Under these circumstances, we conclude that the trial court
did not abuse its discretion in admitting Lisa’s statements in the
Facebook Messages into evidence as prior consistent statements.

                   II. Lisa’s Trauma Testimony

¶44 Finally, Repsher asserts that Counsel rendered
constitutionally ineffective assistance by failing to object to Lisa’s
testimony regarding her trauma-related memory loss. Repsher



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argues that Lisa’s statements on this topic constituted expert
testimony that did not meet the requirements of rule 702 of the
Utah Rules of Evidence, and he contends that competent counsel
would have objected to this testimony. But on the record before
us, there were strategic reasons why Counsel may have decided
to forgo an objection. Thus, we cannot conclude that Counsel’s
performance was deficient.

¶45 To succeed on a claim of ineffective assistance of counsel,
Repsher must make a two-part showing: (1) that Counsel’s
performance was deficient in that it “fell below an objective
standard of reasonableness” and (2) that this deficient
performance “prejudiced the defense” such that “there is a
reasonable probability that, but for [C]ounsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington,
466 U.S. 668
, 687–88, 694 (1984); accord
State v. Scott,
2020 UT 13, ¶ 28
,
462 P.3d 350
; State v. Ray,
2020 UT
12, ¶ 24
,
469 P.3d 871
. Failure to prove either component is fatal;
“[u]nless a defendant makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the adversary
process that renders the result unreliable.” Strickland,
466 U.S. at
687
. Thus, “if either is lacking, the claim fails and this court need
not address the other.” State v. Kufrin,
2024 UT App 86, ¶ 55
,
551
P.3d 416
(cleaned up).

¶46 In evaluating the reasonableness of an attorney’s
performance, courts will often look to whether the attorney’s
actions were motivated by trial strategy. See Scott,
2020 UT 13, ¶ 35
(“To be sure, the performance inquiry will often include an
analysis of whether there could have been a sound strategic
reason for counsel’s actions.”). And while “the ultimate question
is not whether there was a possible strategic reason for counsel’s
conduct, but instead whether that conduct was objectively
reasonable,” see
id.,
“[i]f it appears counsel’s actions could have
been intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance,” Ray,
2020
UT 12, ¶ 34
; see also Strickland,
466 U.S. at 689
(“There are countless


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ways to provide effective assistance in any given case. Even the
best criminal defense attorneys would not defend a particular
client in the same way.”).

¶47 Lisa testified repeatedly that her sexual relationship with
Repsher traumatized her, and she offered her view that this
trauma affected her ability to recall some of the details of the
sexual encounters. We acknowledge Repsher’s point that at least
some of this testimony may have constituted expert testimony, 5
and we even assume, for purposes of our analysis, that Counsel
could have successfully argued that some of this testimony
should have been excluded or stricken. Even so, it does not follow
that Counsel rendered ineffective assistance by electing not to
object. See State v. Hart,
2020 UT App 25, ¶ 29
,
460 P.3d 604
(“[J]ust
because counsel can make an objection does not mean counsel
must make an objection to avoid rendering ineffective assistance.
Legal objections are an inherently strategic business.”). “And the
law recognizes the prerogative of opposing counsel to swallow


5. Testimony regarding the effects of trauma on memory retention
may involve a variety of specialized fields of medicine. And here,
Lisa not only testified to having a medical condition (PTSD) but
went on to offer her view that “PTSD affect[s] memory, because it
controls what you remember or don’t depending on how
traumatic it is.” And further, Lisa described her medical treatment
and its side effects—that electroconvulsive therapy is “a treatment
for people who are resistant to medication and regular therapy for
depression” and that “one of the side effects is memory loss.”
Under our rules of evidence, “if testimony, opinion or otherwise,
is based on scientific, technical, or other specialized knowledge, it
. . . may not be admitted as lay fact testimony.” State v.
Rothlisberger,
2006 UT 49, ¶ 20
,
147 P.3d 1176
(cleaned up); see also
Utah R. Evid. 701 (“If a witness is not testifying as an expert,
testimony in the form of an opinion is limited to one that is . . . not
based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.”).


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their tongue instead of making an objection that might have the
risk of highlighting problematic evidence or even just annoying
the jury.” State v. Hummel,
2017 UT 19, ¶ 110
,
393 P.3d 314
.

¶48 In this case, there were strategic reasons why Counsel may
have chosen to forgo an objection to Lisa’s trauma testimony. For
instance, a reasonable attorney might have thought the jury
would find Lisa’s armchair medical testimony off-putting or
unconvincing, thus rendering her other testimony less credible.
Rather than object, Counsel might have strategically chosen to let
Lisa try to fill in the gaps of missing details in her testimony with
an explanation of trauma symptoms, on the theory that jurors
might be unlikely to believe that Lisa was sufficiently versed in
the relevant specialized medical fields to opine accordingly. And
Counsel may have believed that such testimony would have come
across to the jury as annoying or presumptuous, thus making Lisa
less credible. In addition, a reasonable attorney might have
believed that it was to his client’s benefit to allow the State’s main
witness to discuss the reasons why her memory appeared to be
faulty, because such discussion draws additional attention to the
fact that the witness’s memory is in fact faulty. At a minimum, we
cannot say it is objectively unreasonable for an attorney to opt not
to object when a State’s witness appears to be calling her own
memory into question.

¶49 Moreover, even if Counsel had objected, he could only
have moved to strike the testimony and obtained a curative
instruction. That is because Lisa’s trauma testimony was largely
unresponsive to the questions put to her, providing Counsel no
opportunity to object before the testimony was heard by the jury.
For example, when the State asked Lisa if she remembered
anything about her junior year, Lisa responded that she
remembered little because “[t]rauma likes to do that to people.”
And on cross, when Counsel asked whether Lisa might have
remembered the details of her sixteenth birthday better when she
was interviewed by a detective years earlier, Lisa replied, “I
actually disagree with that. Not only do I have PTSD, not only


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does PTSD affect memory, because it controls what you
remember or don’t depending on how traumatic it is.” Lisa went
on to state, without prompting, that she had received
electroconvulsive therapy, which she described as “a treatment
for people who are resistant to medication and regular therapy
for depression,” and that “one of the side effects is memory
loss.” At no point did the State or Counsel ask Lisa to opine on
her diagnosis of PTSD (real or perceived) or the effects of trauma
(or her medical treatment) on her memory retention. Thus,
Counsel had no opportunity to object before the testimony
was heard, and as a result, the only remedy Counsel could
have sought—even if Counsel believed that Lisa’s trauma-
related testimony was unhelpful—was to have the testimony
stricken from the record and a curative instruction provided to the
jury.

¶50 “[W]e have often held that decisions regarding whether
to move to strike and seek a curative instruction are highly
strategic ones that courts are loathe to second-guess.” State v. King,
2024 UT App 151, ¶ 33
,
559 P.3d 96
; see also State v. Popp,
2019
UT App 173, ¶ 50
,
453 P.3d 657
(“[A] curative instruction may
actually serve to draw the jury’s attention toward the subject
matter of the instruction and further emphasize the issue the
instruction is attempting to cure.”). In this case, a reasonable
attorney could have strategically decided not to reemphasize the
testimony relating to Lisa’s purported trauma with a curative
instruction. See State v. Garrido,
2013 UT App 245, ¶ 26
,
314 P.3d
1014
(“Choosing to forgo a limiting instruction can be a
reasonable decision to avoid drawing attention to unfavorable
testimony.”).

¶51 We therefore conclude that Counsel did not perform
deficiently when he opted not to object to Lisa’s testimony about
her purported trauma-related memory loss. On this basis, we
reject Repsher’s claim that Counsel rendered ineffective
assistance by opting not to lodge such an objection.




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                       CONCLUSION

¶52 The trial court did not abuse its discretion by admitting
Lisa’s statements in the Facebook Messages. And Repsher has not
carried his burden of demonstrating that Counsel rendered
ineffective assistance by failing to object to Lisa’s testimony
regarding trauma-related memory loss.

¶53   Affirmed.




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