State v. Murphy

¶1 ¶1 Defendant Anthony Charles Murphy appeals his convictions for aggravated sexual assault, aggravated kidnapping, forcible sexual abuse, and aggravated assault of his then-wife (Victim). He argues that the trial court abused its discretion by admitting evidence of other allegations of sexual assault made against him pursuant to rule 404(b) of the Utah Rules of Evidence and by denying his motions for a mistrial. He also alleges that he received ineffective assistance when his trial counsel did not call expert witnesses to corroborate his version of events. 1 We affirm.

¶2 BACKGROUND 2

¶3 ¶2 Defendant and Victim married in August 2008. Soon after, Defendant began to verbally, physically, and sexually abuse Victim, culminating in the events of May 31, 2009, for which he was charged with, and convicted of, various crimes.

¶4 ¶3 The day in question began "as a fun, relaxing, playful day." The couple spent most of the day in their backyard cultivating their garden and target shooting with BB guns. Defendant began drinking around 10 a.m., and Victim had her first drink around noon. All was well until approximately 7:30 p.m. By then, both Victim and Defendant had consumed copious amounts of alcohol. Defendant received a text message from a woman whom Victim had previously caught flirting with him. Defendant's receipt of the text message infuriated Victim, and she began yelling at him. He responded by laughing at her. Exasperated, Victim left Defendant in the backyard and went to bed.

¶5 ¶4 Defendant later entered the bedroom and asked Victim if they could "work this out." Victim returned with Defendant to the backyard, and the two started dancing. After dancing for a short while, Defendant began spinning Victim quickly around until she fell to the ground. Victim asked him to stop because he was hurting her. Defendant ignored her pleas, pulled her up from the ground, and tore off her shirt, bra, shorts, and underpants. Victim screamed for help, and Defendant told her to "shut up" and that "[n]obody was coming to save [her]."

¶6 ¶5 Naked, Victim fled into the house. She ran upstairs to the second floor seeking to dress, retrieve her car keys, and leave the house. Defendant caught up with her when she reached the second floor and pushed her down the staircase. He then dragged her into the family room, repeatedly telling her, "you'll remember me." In the family room, Defendant straddled Victim on the floor with both knees on her chest, constraining her breathing. In this position, he hit her multiple times in the face with his erect penis and repeated, "[S]uck it. Suck it, bitch." Victim initially resisted but eventually gave in. "Off and on" for the next twenty minutes, Defendant forced Victim to perform oral sex on him.

¶7 ¶6 Victim attempted to crawl away, but when she reached the hallway, Defendant lifted her up by the throat, pressed her against the wall, and strangled her. He told her, "I'm going to kill you, bitch," and Victim passed out shortly thereafter. When she regained consciousness, she found herself soaked in her own urine. Defendant then dragged her into the upstairs bathroom, threw her into the bathtub, turned on the cold water, and ordered her to "get cleaned up."

¶8 ¶7 Victim's next memory was that of Defendant pushing her down the stairs for a second time after she attempted to escape through the back door. He then dragged her into the back bedroom, used his knees to pin her down by her shoulders, and again forced his penis into her mouth. Victim choked on his penis and lost consciousness for a second time.

¶9 ¶8 Sometime after midnight, Victim was finally able to escape when Defendant passed out due to his excessive alcohol consumption. Victim put on a robe, grabbed her car keys, and drove to her friends' house. They gave her a mild sedative, and Victim spent the night at their house. She woke the next day feeling like a "punching bag," "[e]verything hurt." Bruises had started forming on her face and on her chest, where Defendant had knelt on her while pinning her down. Her throat was extremely sore. She described that "it felt like the worst case of strep throat [she] had ever had."

¶10 ¶9 Fearing the loss of her job, Victim insisted on going to work that day despite her injuries. One of her friends accompanied her back to her house so that she could get ready. At the house, they found Defendant passed out on a couch. Victim quickly showered, dressed, and applied heavy makeup to cover the bruises on her face. Despite these efforts, her coworkers immediately noticed that her face was red, swollen, and covered in bruises. One coworker described Victim's face as "grotesquely swollen." Victim, who usually had a gregarious personality, was also "unnaturally subdued," "not talkative," and attempted to hide her face from her coworkers. After much coaxing, Victim admitted to a coworker that she had been physically assaulted. Against Victim's wishes, her coworkers then contacted the authorities.

¶11 ¶10 The officer who responded to the call testified that Victim's face "was very battered" and that she was "probably one of the worst victims [he] had seen." Her eye sockets and cheeks were swollen, her lip was cut, and there was redness around her neck, which appeared to be consistent with strangulation. The officer interviewed Victim and photographed her injuries. The next day, Victim visited a doctor. The doctor noted that her rib cage was "very tender" and that pain prevented her from being able to fully open her jaw. He also noted bruising on her upper chest, right leg, and lip.

¶12 ¶11 A few days later, two police officers accompanied Victim on a walkthrough of her house to collect evidence. The police observed a handprint on the wall against which Defendant had strangled Victim. Directly underneath the handprint, where Victim had urinated, the officers noted that the carpet was discolored from an attempted cleaning. And in the laundry room, they found bedding with blood stains and torn clothing that matched Victim's description of what she had worn on the day of the assault.

¶13 ¶12 The State charged Defendant with aggravated sexual assault and aggravated kidnapping, first-degree felonies; forcible sexual abuse, a second-degree felony; and aggravated assault, a third-degree felony. He was tried in 2016. 3 A jury found him guilty of all charges. He was sentenced to two consecutive fifteen-years-to-life sentences for his aggravated sexual assault and aggravated kidnapping convictions, and concurrent sentences of one-to-fifteen years and zero-to-five years for his forcible sexual abuse and aggravated assault convictions, respectively.

¶14 ISSUES AND STANDARDS OF REVIEW

¶15 ¶13 Defendant raises six claims on appeal, three of which we do not address on the merits. First, he argues that the trial court erred in its application of rules 404(b) and 403 of the Utah Rules of Evidence when it admitted evidence of additional allegations of sexual assault made against him by other women. Due to a trial court's advantaged position over that of appellate courts "to assess the avowed basis for evidence of prior misconduct-and to judge its likely effect in prejudicing or confusing the jury"-we review a trial court's decision to admit evidence under rules 404(b) and 403 for abuse of discretion. See State v. Thornton , 2017 UT 9 , ¶ 56, 391 P.3d 1016 .

¶16 ¶14 Second, Defendant contends that the State committed prosecutorial misconduct when it made inappropriate comments during the rebuttal portion of its closing arguments. Generally, "insofar as this issue was preserved, we will review the trial court's rulings on prosecutorial misconduct claims for an abuse of discretion." State v. Fairbourn , 2017 UT App 158 , ¶ 13, 405 P.3d 789 (quotation simplified). Otherwise, we typically review unpreserved issues only when a valid exception to the preservation rule applies. See State v. Johnson , 2017 UT 76 , ¶ 15, 416 P.3d 443 . Here, Defendant's counsel did not object to the allegedly inappropriate comments made by the State on the ground that they amounted to prosecutorial misconduct. 4

¶17 And because Defendant has not argued that an exception to the preservation rule applies, we have no occasion to address the merits of this issue on appeal. See Oseguera v. State , 2014 UT 31 , ¶ 15, 332 P.3d 963 ("When a party seeks review of an unpreserved objection, we require that the party articulate an appropriate justification for appellate review in the party's opening brief.") (quotation simplified).

¶18 ¶15 Third, Defendant asserts that the trial court erred in denying his motions for a mistrial. We review a trial court's ruling on a motion for a mistrial for abuse of discretion and reverse only if the court's decision "is plainly wrong in that the incident so likely influenced the jury that the defendant cannot be said to have had a fair trial." State v. Allen , 2005 UT 11 , ¶ 39, 108 P.3d 730 (quotation simplified).

¶19 ¶16 Fourth, Defendant claims that his aggravated kidnapping and aggravated sexual assault convictions should merge under the common-law merger test of State v. Finlayson , 2000 UT 10 , 994 P.2d 1243 , overruled by State v. Wilder , 2018 UT 17 , 420 P.3d 1064 . 5 Defendant recognizes that this claim was not fully preserved below 6 and urges us to "review this issue under [the] plain error and ineffective assistance of counsel" exceptions to the preservation rule. But he focuses his argument on the merits of the claim and does not address this unpreserved issue through the lens of either of these exceptions. Accordingly, we decline to reach the merits of this claim. See True v. Utah Dep't of Transp. , 2018 UT App 86 , ¶ 30, 427 P.3d 338 ("If a party fails to argue and establish the applicability of a preservation exception, the appellate court will not reach the unpreserved issue."). See also State v. Ring , 2018 UT 19 , ¶ 35, 424 P.3d 845 (stating that in order to prevail on a claim of ineffective assistance of counsel, a defendant must show (i) "that his trial counsel's performance was deficient" and (ii) "that the deficient performance prejudiced the defense") (quotation simplified); Johnson , 2017 UT 76 , ¶ 20, 416 P.3d 443 (stating that "plain error is not established" unless the defendant shows that "(i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful") (quotation simplified).

¶20 ¶17 Fifth, Defendant claims to have received constitutionally ineffective assistance from his trial counsel. "A claim of ineffective assistance of counsel raised for the first time on appeal presents a question of law which we consider de novo." State v. Courtney , 2017 UT App 172 , ¶ 20, 424 P.3d 198 (quotation simplified).

¶21 ¶18 Lastly, Defendant argues that the evidence presented at trial was insufficient to support the jury's verdict. However, as with his second and fourth claims, this issue is not preserved and we do not reach it. 7

¶22 ANALYSIS

¶23 I. 404(b) Evidence

¶24 ¶19 In 2010, the State initially sought to admit 404(b) evidence that Defendant had similarly assaulted his then estranged-now ex-wife (GM). The State sought to have the evidence admitted for the non-character purpose of showing Defendant's intent and the absence of mistake. The trial court denied this motion. Defendant contends that the trial court erroneously granted the State's subsequent motion to admit evidence under rule 404(b) of the Utah Rules of Evidence. Specifically, he argues that it failed to sufficiently analyze the evidence under rule 403 before granting the motion.

¶25 ¶20 The State filed its second motion to admit evidence under rule 404(b) in 2014. This time, in addition to the assault involving GM, the State sought to admit evidence of three other allegations of sexual assault made against Defendant by other women. The motion sought to have evidence concerning all four incidents admitted under the doctrine of chances to refute Defendant's claim that he acted in self-defense and that Victim had fabricated her account. 8

¶26 ¶21 Concluding that the State sought to introduce the evidence for a proper non-character purpose, that the evidence was relevant, and that it would not unfairly prejudice Defendant, the trial court granted the State's motion to introduce evidence of the four instances of alleged misconduct. The allegations of sexual assault were made by four women in three different states over the span of sixteen years. In addition to GM, these witnesses were MM, AK, and AM.

¶27 ¶22 MM accused Defendant of assaulting her while he was out on bond for attacking Victim. In 2013, MM met Defendant at a hotel in West Valley City, Utah, to give him a sensual massage that concluded with a "hand job." Defendant had consumed alcohol that night, and while MM performed the latter portion of their arrangement, Defendant began pulling on her underwear. MM repeatedly told him "no" and pushed his hand away until Defendant, having become enraged, wrestled her to the floor. Defendant reacted to MM's screams by placing his hands around her neck with his thumbs in her mouth and strangling her. MM did not lose consciousness, but her vision "went black," she saw "stars," and she became "dizzy." Defendant eventually let go of MM's throat and climbed off her, but he did not allow MM to get her phone. She was able to escape when the hotel's front desk attendant, responding to a noise complaint, interceded. Defendant was subsequently arrested and charged. Prior to trial in the instant case, but after the hearing on the State's second 404(b) motion, Defendant was convicted of assault and patronizing a prostitute in the case involving MM.

¶28 ¶23 AK accused Defendant of sexually assaulting her in Kentucky in 2003. She and Defendant were friends and, on the night in question, the two went for a drive. AK drank whiskey and passed out during the drive. She did not remember whether Defendant also consumed alcohol. When she woke up, she found that her pants and underwear had been removed. Defendant then began insisting that she had promised "to suck his penis" and demanded that she make good on that promise. When AK refused, he hit her in the face with a folder and shoved her head down toward his penis, forcing it into her mouth. AK cried and begged him to let her go home. Defendant repeatedly hit her and, knowing she had a phobia of water, threatened to drown her in a nearby creek if she did not stop crying. He forced her to sign a document stating that she consented to sex with him. He then laid her down in the front seat of the vehicle and vaginally raped her after unsuccessfully attempting to penetrate her anus. Following the rape, he drove AK to her mother's house. Defendant was not charged in connection with this incident.

¶29 ¶24 AM accused Defendant of sexually assaulting her in Kentucky in 2001, when she was fifteen years old. She was the daughter of one of Defendant's friends. On the day of the assault, her father and Defendant returned from a bar "pretty intoxicated" and continued drinking in her house. Defendant attempted to dance with AM but, feeling uncomfortable, she refused. She later went to bed and was awakened by Defendant climbing on top of her. He inhibited her breathing by pressing his hand down hard against her face, fondled her breasts under her shirt, kissed her neck, and touched her genitals. AM eventually succeeded in freeing her mouth by biting Defendant's hand, and she screamed to her father for help. Her father ran into the room and pulled Defendant off her. She ran into another bedroom, but Defendant pursued, tackled, and touched her again. AM's father once more managed to pull him away from her. AM then ran to a neighbor's house. Defendant again pursued AM, attempted to break into the neighbor's house, and assaulted the neighbor's husband. Defendant was charged with sexual abuse of AM and with assault of the neighbor's husband. A jury convicted Defendant on the assault charge, but it could not reach a verdict on the sexual abuse charge.

¶30 ¶25 GM accused Defendant of assaulting her in Florida in 1997. 9 She and Defendant were married but separated at the time of the alleged assault. One early morning in June, Defendant broke into her house. He smelled of alcohol and wanted to talk. When she refused, he grabbed her by the arm, said "okay, no more talk," and dragged her into an unoccupied bedroom. During the hours-long sexual assault that ensued, Defendant twice vaginally raped GM, attempted anal penetration, and sat on her chest and forced his penis into her mouth. Defendant was arrested and charged with aggravated kidnapping and sexual assault. Two months later, while out on bond, Defendant again broke into GM's house. This time, GM pulled a gun from underneath her pillow and shot him five times. The State of Florida entered into a plea deal with Defendant in which Defendant pled guilty to one count of second-degree burglary in exchange for the dismissal of the aggravated kidnapping and sexual assault charges. This generous deal-or so the Utah prosecutor suggested in the case before us-was the product of the five bullet holes that Defendant sustained in the course of the second intrusion into GM's home.

¶31 ¶26 In conjunction with the testimonies of MM, AK, and AM, the State called a statistician as an expert witness. The statistician testified that there is a 0.0004% chance of a person being arrested for rape or attempted rape in Utah. The probability of being twice accused of or arrested for rape or attempted rape was one in four million; thrice was one in eight billion; four times was one in sixteen trillion; and five times was one in thirty-two quadrillion. The odds of being falsely accused of rape or attempted rape on five separate occasions were further increased, according to the expert, when similar claims of alcohol consumption or strangulation were factored into the analysis.

¶32 ¶27 Rule 404(b) of the Utah Rules of Evidence generally permits evidence of a defendant's other crimes, wrongs, or bad acts so long as the evidence has a "probative value other than to show an evil propensity or criminal temperament." State v. Fedorowicz , 2002 UT 67 , ¶ 27, 52 P.3d 1194 (quotation simplified). The doctrine of chances is applied in the context of rule 404(b). State v. Lowther , 2017 UT 34 , ¶ 31, 398 P.3d 1032 . It is "a theory of logical relevance, which a proponent may use to argue that, using probability reasoning, a factfinder may infer that a disputed fact is more likely or less likely to be true due to the recurrence of some improbable event." State v. Labrum , 2014 UT App 5 , ¶ 26 n.9, 318 P.3d 1151 (quotation simplified). In other words, "the claim is based on the disparity between the expected and actual values: How many incidents would we expect the average person to be involved in, and how many incidents was the defendant involved in?" Edward J. Imwinkelried, An Evidentiary Paradox: Defending the Character Evidence Prohibition by Upholding a Non-Character Theory of Logical Relevance, The Doctrine of Chances , 40 U. Rich. L. Rev. 419 , 448 (2006). See State v. Lopez , 2018 UT 5 , ¶ 50, 417 P.3d 116 . Thus far, Utah appellate courts have upheld the application of the doctrine of chances for the purposes of showing intent; establishing lack of mistake, coincidence, or accident; rebutting a charge of fabrication; and in cases involving rape, showing the defendant's requisite mens rea or the victim's lack of consent. 10 Id. ¶ 49. See State v. Lomu , 2014 UT App 41 , ¶ 25, 321 P.3d 243 .

¶33 ¶28 As with other 404(b) evidence, courts must undertake a three-step analysis before admitting evidence under the doctrine of chances. See State v. Killpack , 2008 UT 49 , ¶ 45, 191 P.3d 17 ("Such evidence is admissible if it (1) is relevant to, (2) a proper, non-character purpose, and (3) does not pose a danger for unfair prejudice that substantially outweighs its probative value.") (quotation simplified). The first and second steps, governed by Utah Rules of Evidence 402 and 404(b), respectively, require trial courts to ensure that the evidence is being offered for, and is relevant to, a proper non-character purpose. See Lowther , 2017 UT 34 , ¶ 32, 398 P.3d 1032 . Under the doctrine of chances, this determination requires a four-part analysis of "(1) materiality, (2) similarity, (3) independence, and (4) frequency." 11 Id.

¶34 Defendant does not challenge the trial court's analysis with respect to these factors, instead concentrating his attack on step three.

¶35 ¶29 The third step requires the court to conduct a rule 403 balancing test, see id. , which generally focuses on whether the "probative value [of the evidence] is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence," Utah R. Evid. 403. Under the doctrine of chances, the focus of the rule 403 analysis is primarily "on the risk that the jury may draw an improper character inference from the evidence or that it may be confused about the purpose of the evidence." State v. Lowther , 2015 UT App 180 , ¶ 22, 356 P.3d 173 (quotation simplified), aff'd on other grounds , 2017 UT 34 , 398 P.3d 1032 . Trial courts "are not bound to any particular set of factors or elements when conducting a rule 403 balancing test," and "may consider any relevant fact" in doing so, including some of the elements of the doctrine of chances' four-part test-materiality, similarity, independence, and frequency. State v. Lowther , 2017 UT 34 , ¶¶ 29, 41, 398 P.3d 1032 .

¶36 ¶30 On appeal, Defendant does not find fault with the trial court's determinations under the first and second analytic steps, but he argues that the trial court failed to conduct a proper analysis under rule 403 before admitting evidence of the aforementioned allegations made against him under the doctrine of chances. He contends that the other misconduct evidence confused the jury and unfairly prejudiced his defense.

¶37 ¶31 Having concluded that the four other allegations of sexual misconduct made against Defendant satisfied the four foundational requirements of the doctrine of chances, the trial court used the reasoning behind the doctrine to conclude that the "information will be more helpful to a jury than harmful in eliciting truth." It reasoned, quoting Verde , that "when two (or more) persons tell similar stories, the chances are reduced that both are lying or that one is telling the truth and the other is coincidentally telling a similar false story." State v. Verde , 2012 UT 60 , ¶ 48, 296 P.3d 673 (quotation simplified), abrogated on other grounds by State v. Thornton , 2017 UT 9 , 391 P.3d 1016 . We see no abuse of discretion in the trial court's analysis. 12 See Thornton , 2017 UT 9 , ¶ 56, 391 P.3d 1016 ("[T]he question for us is not whether we would have admitted this evidence.

¶38 It is whether the district judge abused his broad discretion in doing so.").

¶39 ¶32 Defendant's contention that the jury was likely to be confused as to the purpose of the 404(b) evidence is likewise unavailing. The trial court twice instructed the jury as to the purpose of the 404(b) evidence and the limited nature in which the jurors were to consider such evidence. "We generally presume that a jury will follow the instructions given it," and Defendant has not provided evidence to suggest that the jury in the present case did otherwise. State v. Beckering , 2015 UT App 53 , ¶ 24, 346 P.3d 672 (quotation simplified).

¶40 ¶33 For these reasons, we conclude that the trial court did not abuse its discretion by concluding that the 404(b) evidence need not be excluded under rule 403.

¶41 II. Mistrial Motions

¶42 ¶34 Defendant next appeals the trial court's denial of his motions for a mistrial. He contends that unfairly prejudicial information was presented to the jury, the trial court's curative measures were ineffective, and the court therefore abused its discretion in denying his motions. Defendant's trial counsel first moved for a mistrial after Victim testified that GM shot Defendant five times-evidence the trial court had previously ruled inadmissible unless Defendant first opened the door to it. The testimony in question was given on the second day of trial and was elicited in the following manner:

[The State]: At the time that you reported this assault to the Smithfield Police Department were you aware of any general allegation that [GM] had made against this defendant?

[Victim]: That they had filed for divorce.

[The State]: Well, I'm talking about like a criminal accusation. Were you aware that she had accused him of any crimes?

[Victim]: I understand she shot him five times.

¶43 ¶35 Following this exchange, Defendant's counsel moved for a mistrial. The court ruled that although the State had not intentionally elicited Victim's improper response, the reference to GM having shot Defendant five times unfairly prejudiced his defense. Nevertheless, the trial court determined that the prejudice could be cured. As a remedial measure, the court precluded the State from presenting GM's testimony against Defendant, thereby reducing the number of prior assaults the jury would hear about from four to three. The court also struck from the record all questions and answers between the State and Victim regarding GM and instructed the jury to disregard the stricken exchange.

¶44 ¶36 At the conclusion of that day of trial, one juror asked for the name of Defendant's ex-wife. After the court stated that it already provided the name in its curative instruction, the juror responded, "We can remember her name. We just can't remember anything else." The court responded, "No. You don't even need to remember her name. You don't even need to consider anything about [GM]." Defendant's trial counsel subsequently renewed his motion for a mistrial asserting that, despite the court's curative instruction, the jury was still considering Victim's testimony regarding GM. The trial court denied the renewed motion, stating that the jury was "trying to understand and follow [the court's] instruction." "Really," according to the court, "the question was 'do we forget her name?,' " and the question "didn't go to anything else."

¶45 ¶37 Appellate courts accord great deference to a trial court's ruling on a motion for a mistrial given "the advantaged position of the trial judge to determine the impact of events occurring in the courtroom on the total proceedings." State v. Butterfield , 2001 UT 59 , ¶ 46, 27 P.3d 1133 (quotation simplified). Accordingly, absent a showing on the record that "the trial court's decision is plainly wrong in that the incident so likely influenced the jury that the defendant cannot be said to have had a fair trial," we will not conclude there was an abuse of discretion. Id. (quotation simplified). Defendant thus bears the burden of showing "that the challenged incident substantially influenced the verdict." State v. Maama , 2015 UT App 235 , ¶ 19, 359 P.3d 1272 (emphasis in original) (quotation simplified). Furthermore, a trial court need not declare a mistrial "where an improper statement is not intentionally elicited, is made in passing, and is relatively innocuous in light of all the testimony presented." State v. Allen , 2005 UT 11 , ¶ 40, 108 P.3d 730 .

¶46 ¶38 To show that the improper statement influenced the jury's decision, Defendant points to the exchange between the juror and the trial court at the conclusion of the second day of trial. 13 We recognize that the exchange suggests that the improper testimony may have been on the minds of the jurors during the second day of trial, but we nonetheless remain unconvinced that, without the testimony, "there is a substantial likelihood that the jury would have found [Defendant] not guilty," Butterfield , 2001 UT 59 , ¶ 47, 27 P.3d 1133 , for the reasons that the statement was relatively innocuous, it was made in passing, and the evidence of Defendant's guilt was overwhelming, see Allen , 2005 UT 11 , ¶ 40, 108 P.3d 730 .

¶47 ¶39 Although the fact that a defendant was shot might have stood out more prominently in other trials, in the current case the highly graphic and disturbing nature of the evidence presented to the jury over the course of six days-including the testimony of Victim, MM, AM, and AK-overshadowed the fact that GM shot Defendant, rendering the statement relatively innocuous. 14 Victim's improper testimony was also made in passing, and it consisted of a single sentence in a trial transcript that exceeds 1,000 pages. Accordingly, the trial court did not abuse its discretion in denying Defendant's motions for mistrial.

¶48 III. Ineffective Assistance of Counsel

¶49 ¶40 Defendant argues that he received ineffective assistance when his trial counsel did not call expert witnesses to rebut the testimonies of the four expert witnesses called by the State. 15 In particular, Defendant points to his trial counsel's decision not to call an expert witness to corroborate Defendant's account that the cuts and bruises on his chest were obtained defensively rather than offensively and to rebut the State's expert who testified that the injuries to Defendant's chest could not have been sustained in the manner claimed by Defendant. Defendant also directs our attention to his trial counsel's failure to find a substitute choking and strangulation expert after the expert he had retained passed away. Although his trial counsel was able to submit the deceased expert's report into evidence and use the report to question the State's expert, Defendant argues that this was not as persuasive as a substitute expert's live testimony would have been.

¶50 ¶41 To succeed on a claim of ineffective assistance of counsel, a criminal defendant must show that (1) "counsel's performance was deficient" and (2) "the deficient performance prejudiced the defense." Strickland v. Washington , 466 U.S. 668 , 687, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). "A defendant's inability to establish either element defeats a claim for ineffective assistance of counsel." State v. Reid , 2018 UT App 146 , ¶ 19, 427 P.3d 1261 .

¶51 ¶42 Without deciding whether his trial counsel's performance was deficient, we conclude that Defendant's claim fails because he has not established prejudice. To prove prejudice, Defendant bore the burden of "present[ing] sufficient evidence to support a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Archuleta v. Galetka , 2011 UT 73 , ¶ 40, 267 P.3d 232 (quotation simplified). Defendant has presented no such evidence. Instead, his prejudice argument is limited to the reiteration of the legal standard of the prejudice prong, stating that had his trial counsel called corroborating expert witnesses, "there was a reasonable likelihood of a different outcome." This does not satisfy the prejudice prong of Strickland . See id. ¶ 52 ("Merely repeating the legal prejudice standard is insufficient."). Accordingly, Defendant's ineffective assistance of counsel claim fails.

¶52 CONCLUSION

¶53 ¶43 We conclude that the trial court did not abuse its discretion in ruling that the 404(b) evidence of other allegations of sexual assault against Defendant was not barred under rule 403. It likewise did not exceed its discretion when it denied Defendant's motions for a mistrial because the challenged testimony was made in passing and was relatively innocuous in the context of this case, and because the trial court took sufficient action to cure any potential unfair prejudice that Victim's improper testimony might have produced. Finally, because Defendant did not establish prejudice, his ineffective assistance of counsel claim fails.

¶54 ¶44 Affirmed.