State v. King

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                           Appellee,
                               v.
                      PHILLIP MASON KING,
                           Appellant.

                            Opinion
                        No. 20210710-CA
                     Filed October 24, 2024

           Second District Court, Ogden Department
              The Honorable Michael D. DiReda
                        No. 191900996

          Freyja Johnson and Hannah K. Leavitt-Howell,
                     Attorneys for Appellant
              Sean D. Reyes and David A. Simpson,
                     Attorneys for Appellee

    JUDGE RYAN M. HARRIS authored this Opinion, in which
    JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

HARRIS, Judge:

¶1     A jury convicted Phillip Mason King of aggravated assault
and commission of domestic violence in the presence of a child.
King now appeals those convictions, asserting that the trial court
abused its discretion by allowing certain testimony and that his
attorney rendered ineffective assistance. We reject King’s
arguments and affirm his convictions.
                           State v. King


                        BACKGROUND 1

¶2     One morning, a woman—Anna 2—turned up at a local
police station. She was obviously injured: she had “black and
swollen eyes,” red marks on both sides of her throat, two bite
marks on her shoulders, a cut on her left elbow, and bruises and
scrapes in various places on her body. She explained to the
investigating officer (Officer) that, on the previous evening, there
had been an argument between her and her husband, Phillip
King. At some point, the argument turned physical and,
according to Anna’s version of events, King had “shoved” and
“pushed” her into the bathroom, where he began “hitting” and
“smashing” her head into the “cabinet above the sink” to the point
where Anna thought she was “going to die.” In the process, King
also had his hands on Anna’s throat and was strangling her. As
this was going on, Anna could hear her young son “screaming
and crying” in the background. Anna recalled that, at one point,
she momentarily blacked out.

¶3     Anna was eventually able to escape from the bathroom and
go to her son’s room, where she grabbed her phone and attempted
to leave. But King intervened. He came into the room and
“smashed [Anna’s] phone” and “put it in his pocket.” After that,
King proceeded to again hit Anna about the head and to choke
her by the throat. In the process, King bit Anna, “pinned [her] on
the floor,” and strangled her until she blacked out again. Anna
recalled that, during the attack, King was calling her insulting
names, as well as telling her that she “need[ed] to see God and


1. “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,

, 

 (quotation simplified).

2. A pseudonym.


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                            State v. King


answer to him” and that “she deserve[d] to die.” Eventually, King
stopped the attack, and Anna “grabbed whatever [she] could,”
ran out to her car, and eventually made it to the police station.

¶4      After hearing Anna’s account, Officer drove to the couple’s
house to speak with King and to check on the child. King admitted
to Officer that he and Anna had “been in an argument” and that
he had grabbed Anna around the throat in a purposeful attempt
“to get her to pass out.” But King told Officer that his actions were
taken in self-defense, because Anna had started the altercation by
hitting him “on the right shoulder with a closed fist.” As King put
it, he had been trying “to grab [Anna] by the throat and push her
into the bathroom” and had been “trying to get her to pass out to
stop from being assaulted.” King “wasn’t sure” whether Anna
actually passed out, but he “didn’t believe so.” King also admitted
to biting Anna, although he gave no reason why he had done so,
and he told Officer that he “wasn’t sure how she would have
obtained the black eyes” and bruises. Officer did not observe any
apparent injuries on King’s body.

¶5     At that point, after taking statements from Anna and King
and assessing their respective injuries, Officer essentially ended
his investigation. In particular, he did not check the bathroom or
bedroom to see if there was any damage consistent with the
particulars of their accounts. Nor did he check to see if Anna’s
phone was damaged, ask the neighbors if they heard yelling and
screaming, or do more than just ask King if the house’s indoor
security cameras were functioning (King said they weren’t).

¶6     The next day, the State charged King with one count of
aggravated assault and one count of commission of domestic
violence in the presence of a child, and a two-day jury trial was
eventually held. The only witnesses to testify were Anna and
Officer; Anna offered her version of events, as described above,
and Officer testified about—among other things—his interview
with King.



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                           State v. King


¶7     Anna was a loquacious witness who offered long answers
to questions, sometimes providing information that was not
directly sought. At one point, the prosecutor asked Anna to
describe the injuries she had sustained during the incident. In
response, Anna not only described the injuries but also
volunteered that she had been “out of work for about a month- and-a-half to two months” and that even after she was able to
return to work, she “could not work . . . properly or anything”
because she “couldn’t lift” and “couldn’t load or anything,” and
as a consequence her supervisor assigned her to “the section
where it’s lighter work” and that she’d been “there ever since
because of [her] back.” King’s attorney (Counsel) objected to this
testimony as “irrelevant” and as “improper expert testimony.”
The court overruled the objection, but it did ask the State to just
“move on.” No further testimony on this topic was elicited.

¶8     At another point during Anna’s testimony, the State asked
her how she got to the police station the next morning, and she
gave a lengthy answer:

      That morning, I texted my friend at work to tell her
      I was not going to come in, so she’s not wondering
      where I am, or that—because we also work together,
      so she knows that I won’t be around. I texted my
      supervisor and my manager, telling them I’ve been
      through domestic violence, so I will not get to work
      this week. So they don’t think I’m ignoring or just
      calling in (unintelligible). I emailed my lawyer, and
      the picture I sent—I took a picture, and I sent him,
      telling him to help me out. And I wondered where
      to go and what to do. I did not want to go to the
      police station.

Counsel did not lodge any objection to either the State’s question
or to Anna’s answer.




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                            State v. King


¶9     After Anna, Officer testified. He described his encounter
with Anna at the police station and offered his observations of the
severity of her injuries. He testified that Anna had told him that
she and King “had been in an argument” and that King had been
“yelling” at her. He stated that Anna’s trial testimony—which
Officer had just heard—was “fairly consistent with” what she
“relayed” to him at the police station. And he offered his view that
Anna’s injuries, as he observed them, also appeared to be
“consistent with” what Anna had “relayed” to him. Counsel did
not lodge an objection to any of this testimony.

¶10 Instead, Counsel attempted to use some of this testimony
to King’s advantage during his cross-examination of Officer.
Counsel asked Officer various questions designed to test whether
he had done any further investigation regarding the consistency
of Anna’s various accounts of the incident or regarding the
consistency of her statements with her injuries. In response to
Counsel’s questions, Officer acknowledged that he had not
checked the rooms for damage, that he had not interviewed
neighbors to see if they heard yelling, and that he had not
inspected Anna’s phone to see if it was broken. Officer also
acknowledged that he had not investigated the particulars of
certain “prior domestic violence cases where [Anna] had been
arrested” as the aggressor. And when Counsel asked whether
Officer had “just [taken Anna’s] story, went over to interview
[King], and then said, she has bruises, he doesn’t,” Officer
answered, “Correct.” Finally, Officer acknowledged that, after he
arrested King, he commented to King that Anna’s injuries were
also “consistent with [King’s] story.”

¶11 After testimony ended, the court instructed the jury. One
instruction stated that, for the jury to convict King of aggravated
assault, it must find, among other things, either that (1) “King’s
conduct included the use of any act that interfered with the
breathing or the circulation of blood of [Anna] . . . that was likely
to produce a loss of consciousness,” or (2) King used “other means



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                            State v. King


or force likely to produce death or serious bodily injury.” And the
jury was instructed that “[s]erious bodily injury means bodily
injury that creates or causes serious permanent disfigurement,
protracted loss or impairment of the function of any bodily
member or organ, or creates a substantial risk of death.”

¶12 At the conclusion of the trial, the jury found King guilty of
both charges.


            ISSUES AND STANDARDS OF REVIEW

¶13 King now appeals his convictions, and he asks us to
consider two issues. First, he challenges the trial court’s decision
to admit, over his objection, Anna’s testimony about the effects of
her injuries, and specifically that the injuries caused her to be put
on a light-duty work assignment. “We review a court’s decision
to admit evidence for abuse of discretion.” State v. Lovell, 

.

¶14 Second, he makes various assertions that Counsel rendered
constitutionally ineffective assistance. “When an ineffective
assistance claim is raised for the first time on appeal, it presents a
question of law.” State v. Rivera, 

, 

. With regard to some of his ineffective assistance claims, King
seeks a remand, pursuant to rule 23B of the Utah Rules of
Appellate Procedure, to enable him to supplement the record with
evidence to support the claims. “A remand under rule 23B is
available only upon a nonspeculative allegation of facts, not fully
appearing in the record on appeal, which, if true, could support a
determination that counsel was ineffective.” State v. Tuinman,

, 

 (quotation simplified), cert.
denied, 

 (Utah 2023).




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                            State v. King


                            ANALYSIS

                       I. Evidentiary Ruling

¶15 King first asserts that the trial court abused its discretion
by overruling his objection to Anna’s testimony about the effects
of her injuries, including specifically her testimony that the
injuries caused her to be placed on a light-duty work assignment.
King’s objection to this testimony was twofold: first, he asserted
that the testimony was not relevant, and second, he asserted that
it constituted impermissible expert testimony. We address these
issues, in turn, and conclude that the trial court did not abuse its
discretion by overruling King’s objection.

¶16 According to our rules, evidence is relevant, and therefore
presumptively admissible, if (1) “it has any tendency to make a
fact more or less probable than it would be without the evidence,”
and (2) “the fact is of consequence in determining the action.”
Utah R. Evid. 401; see also State v. Ashby, 

,

 (“Relevant evidence is presumptively admissible;
irrelevant evidence is not.” (quotation simplified)). These
principles set “a very low bar” to admissibility “that deems even
evidence with the slightest probative value relevant and
presumptively admissible.” State v. Richardson, 

,

 (quotation simplified).

¶17 To prove that King committed the crime of aggravated
assault, the State needed to prove both an assaultive act and a
qualifying aggravating circumstance. See Utah Code § 76-5-103(1)
(2018). 3 And to prove the aggravating circumstance, the State


3. The aggravated assault statute was amended in 2022 and 2024,
but because the acts in question here occurred in April 2019, we
apply the law in effect at that time. See State v. Clark, 

, 

 (“[W]e apply the law as it exists at the time of
                                                       (continued…)


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                            State v. King


could take one of two available avenues. First, it could
demonstrate that King “impede[d] the breathing or the circulation
of blood of [Anna] by [King’s] use of unlawful force or violence
that is likely to produce a loss of consciousness.” 

 § 76-5-
103(1)(b)(ii). Alternatively, it could demonstrate that King used
“other means or force likely to produce death or serious bodily
injury.” Id. § 76-5-103(1)(b)(iii) (emphasis added). And “serious
bodily injury” was statutorily defined as, among other things,
“bodily injury that creates . . . protracted loss or impairment of the
function of any bodily member or organ.” Id. § 76-1-601(11). The
instructions provided to the jury in this case—which are not
challenged on appeal—included both of these avenues for
proving the aggravating circumstance, as well as the definition of
“serious bodily injury.”

¶18 Given the statutory definition of the crime with which King
was charged, the extent of Anna’s injuries and the extent to which
those injuries created “protracted loss or impairment” of her
bodily functions was directly relevant information. King protests
that, during closing argument, the State focused largely on the
first avenue for demonstrating the aggravating circumstance—the
strangulation—and not so much on the second avenue—serious
bodily injury. But the jury was instructed on both avenues.
Moreover, at the time King lodged his objection to Anna’s
testimony, it was not yet clear that the State would emphasize the
strangulation avenue. Under these circumstances, Anna’s
testimony about the extent of her injuries and the manner in
which those injuries had affected her ability to function was
directly relevant, and it easily surmounts the “very low bar”




the event regulated by the law in question.”). Neither party asks
us to do otherwise, and neither party suggests that the outcome
of this case turns on which version of the aggravated assault
statute we apply.


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                            State v. King


imposed by our relevance rules. See Richardson, 

(quotation simplified).

¶19 The other focus of King’s objection was his assertion that
Anna’s testimony about her injuries and her ability to function at
work was impermissible expert testimony. But here, Anna’s
description of her own injuries was permissible lay testimony.
Lay witnesses are permitted to offer opinions that are
(1) “rationally based on the witness’s perception”; (2) “helpful to
clearly understanding the witness’s testimony or to determining
a fact in issue”; and (3) “not based on scientific, technical, or other
specialized knowledge.” Utah R. Evid. 701. Anna’s testimony
meets all of these criteria.

¶20 The first two criteria are easily met here. First, Anna’s
testimony was based on her own perception of her injuries and
their effects. She was testifying about things she personally
observed and experienced. Second, the testimony was helpful (as
noted above) to determining whether Anna had sustained a
serious bodily injury.

¶21 The third criterion—whether Anna’s testimony was
“based on scientific, technical, or other specialized knowledge”—
perhaps presents a closer question, because Anna’s testimony
included her opinion that the injuries she sustained at King’s
hands were what caused her to be placed on a light-duty
assignment at work. King asserts that this testimony constitutes a
“medical causation” opinion that may only be offered by a
medical expert. But even here, we see no abuse of discretion in the
trial court’s decision to allow Anna to offer her view that these
injuries resulted in the light-duty assignment. After all, Anna had
been able to perform heavy-duty assignments before these
injuries, she was not able to perform them after the injuries, and
there had apparently been no other intervening cause that might
explain the change. Cf. Sheppard v. Geneva Rock, 

,

 (stating that where “the treatment continues virtually



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                             State v. King


uninterrupted and there is no intervening cause that might
suggest another reason for the treatment, it is in the jury’s
common knowledge that back injuries can cause pain that persists
and requires continued treatment”). This sort of “causal
connection is readily apparent using only common knowledge.”
Id. ¶ 31 (quotation simplified). Certainly, Anna’s testimony might
not have been sufficient to prove causation, see id., but her
testimony about her own perception of her injuries and of the
injuries’ apparent impact on her ability to perform her job
duties is, under the circumstances, admissible lay testimony on
the topic.

¶22 Accordingly, we discern no abuse of the trial court’s
discretion in its decision to overrule King’s objection to Anna’s
testimony about the extent of her injuries.

                II. Ineffective Assistance of Counsel

¶23 Next, King asserts that Counsel rendered constitutionally
ineffective assistance in several particulars. To succeed on a claim
of ineffective assistance of counsel, King 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, 

, 687–88, 694
(1984); accord State v. Scott, 

, 

; State v.
Ray, 

, 

. 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, 

. Thus, “if either is lacking, the claim fails
and this court need not address the other.” State v. Kufrin, 

, 

 (quotation simplified).




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                            State v. King


¶24 To show that Counsel performed deficiently, King must
demonstrate that Counsel’s performance “fell below an objective
standard of reasonableness.” Scott, 

 (quotation
simplified). In evaluating the reasonableness of an attorney’s
actions, courts will often look to whether the actions the attorney
took were motivated by trial strategy. See id. ¶ 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, 

.

¶25 Some of King’s ineffective assistance arguments rest on
evidence already in the record, while others depend on evidence
not yet in the record and for which King asks us to remand the
matter to the trial court. We assess each of King’s arguments, in
turn, and find each of them unpersuasive, because—for the
reasons discussed below—King has not demonstrated that
Counsel’s performance was deficient in any way.

              A. Claims Based on Record Evidence

¶26 King makes two ineffective assistance claims that are
grounded in evidence already in the record. First, he asserts that
Counsel should have objected to statements Officer made about
the “consistency” of Anna’s trial testimony. And second, he
asserts that Counsel should have raised hearsay-based objections
to two pieces of testimony, one offered by Anna and one by
Officer. We conclude, however, that Counsel did not perform
deficiently by electing not to lodge the objections that King now
asserts Counsel should have made.




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                           State v. King


1.     “Consistency” Statements

¶27 During trial, Officer testified that Anna’s trial testimony
was “fairly consistent with” what Anna had earlier “relayed” to
him at the police station. In addition, he offered his view that
Anna’s injuries, as he observed them, also appeared to be
“consistent with” what Anna had told him at the police station.

¶28 Even if we assume, for purposes of the discussion, that
Counsel could have successfully objected to these statements, it
does not follow that Counsel rendered ineffective assistance by
electing not to do so. See State v. Hart, 

, 

 (“[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.”). As already noted, if Counsel’s actions are explained
by a reasonable strategy, then Counsel has not performed
deficiently. See Ray, 

. We agree with the State’s
assertion that the record here persuasively indicates that Counsel
made a reasonable strategic decision to forgo any objection to this
testimony and instead attempt to use it to King’s advantage.

¶29 By allowing Officer’s “consistency” statements to come in,
and then attempting to point out that those statements were
actually incorrect and unsupported by certain other evidence in
the record, Counsel was attempting to argue—at the same time
and using the same lines of questioning—both (a) that Officer’s
investigation was deficient and (b) that Officer’s credibility was
suspect. On cross-examination, Counsel asked Officer a number
of questions designed to engender doubt about whether Officer
had been sufficiently thorough in attempting to determine
whether Anna’s statements and injuries were consistent. In
response to questioning, Officer acknowledged that he had not
checked various household items for damage, that he had not
interviewed neighbors to see if they heard yelling, and that he had
not inspected Anna’s phone to see if it was broken. Officer also



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                           State v. King


acknowledged that he had not investigated the particulars of
certain “prior domestic violence cases where [Anna] had been
arrested” as the aggressor. And when Counsel asked whether
Officer had “just [taken Anna’s] story, went over to interview
[King], and then said, she has bruises, he doesn’t,” Officer
answered, “Correct.” Finally, Officer acknowledged that, after he
arrested King, he commented to King that Anna’s injuries were
also “consistent with [King’s] story.”

¶30 It is perhaps true that not every attorney would have
chosen this strategy. See Strickland, 

 (stating that
“[t]here are countless ways to provide effective assistance” and
that “[e]ven the best criminal defense attorneys would not defend
a particular client in the same way”). But Counsel did, and by
doing so he was able to raise an inference that Officer shortcircuited his investigation after interviewing the two principal
witnesses, and he was also able to gain Officer’s grudging
concession that Anna’s injuries could also have been consistent
with King’s version of events. In our view, this strategy was not
unreasonable and is therefore not indicative of constitutionally
deficient performance.

2.    Hearsay Statements

¶31 Next, King asserts that Counsel rendered ineffective
assistance by electing not to object to two “hearsay” statements,
one offered by Anna and one offered by Officer.

¶32 While Anna was on the witness stand, the State asked her
how she got to the police station the next morning, and she gave
a lengthy and largely non-responsive answer, which included her
statement that she had texted her supervisor that she wouldn’t be
at work “this week” because she had “been through domestic
violence.” Counsel lodged no objection to the State’s question,
perhaps because that question was entirely innocuous and nonobjectionable and asked simply for information about how Anna



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                            State v. King


had transported herself to the police station on the morning after
the incident. Indeed, King makes no argument, here on appeal,
that Counsel should have objected to the State’s question. And—
presumably because Anna’s statement about domestic violence
was unsolicited and entirely unanticipated—King makes no
argument that Counsel could have done anything ahead of time
to prevent the statement from being uttered.

¶33 Instead, King asserts that Counsel should have objected
to—or moved to strike—Anna’s statement after it came in. But
deciding whether to move to strike a statement after it has already
come in is also an inherently strategic business. Cf. Hart, 

. There isn’t much point in moving to strike a
statement unless the motion also asks for a curative instruction
telling the jury to disregard the statement. And such instructions
invoke the pink-elephant paradox: by being told not to think
about a thing, jurors may actually be more likely to think about
that thing. See State v. Popp, 

, 

(“Indeed, 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 view of this reality, we 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. See, e.g., State v. Garrido, 

, 

 (“Choosing to forgo a limiting instruction can be a
reasonable decision to avoid drawing attention to unfavorable
testimony.”). And this is especially true here, where the impact of
the testimony—Anna describing her own belief that she had been
subjected to domestic violence—was likely to be slight: the jury
was already well aware, due to the fact that Anna drove herself to
the police station to report the incident and that King was on trial
for domestic violence, that Anna believed she was the victim of
domestic violence. In this situation, we are simply not prepared
to categorize the lack of an objection as unreasonable.




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                            State v. King


¶34 The second “hearsay” statement King identifies was
offered by Officer. During his trial testimony, Officer testified that
Anna had told him, at the police station, that she and King “had
been in an argument” and that King had been “yelling” at her. But
Counsel could reasonably have decided not to bother with an
objection to this testimony, because it was undisputed that Anna
and King had been in an argument and that the argument
involved yelling. Anna had already testified to that effect. And
Officer later testified that, during his interview of King on the day
after the incident, King admitted that he and Anna had “been in
an argument.” Thus, there was little, if anything, to be gained by
objecting to this testimony, and Counsel could reasonably have
decided not to bother. See State v. Hummel, 

, 

 (“[T]he law recognizes the prerogative of opposing
counsel to swallow their tongue instead of making an objection
that might have the risk of highlighting problematic evidence or
even just annoying the jury.”).

¶35 Accordingly, we reject all of King’s on-the-record claims of
ineffective assistance, because we are unable to ascertain any
deficient performance by Counsel regarding the issues raised.

                        B. Rule 23B Remand

¶36 In addition to the on-the-record ineffective assistance
claims King raises, he makes three other claims of ineffective
assistance that are dependent upon evidence that is not already in
the record. For these claims, King asks us to remand the case to
the trial court for further proceedings in which he would be
allowed the opportunity to supplement the record. See Utah R.
App. P. 23B. We deny King’s request for a remand, again on the
basis that—even assuming that the evidence to which King points
were in the record—King cannot demonstrate that Counsel
performed deficiently.




 20210710-CA                     15               

                            State v. King


¶37 Under rule 23B of the Utah Rules of Appellate Procedure,
a defendant “may move the court to remand the case to the trial
court for entry of findings of fact, necessary for the appellate
court’s determination of a claim of ineffective assistance of
counsel.” 

 R. 23B(a). “We apply a four-part test to evaluate rule
23B motions.” State v. Samora, 

, 

(quotation simplified), aff’d, 

 (Utah 2023). First, the
motion must allege facts not already in the record. See State v.
Griffin, 

, 

. Second, those factual
allegations must not be speculative. Id. ¶ 19. Third, the allegations
must demonstrate that counsel performed deficiently, and fourth,
they must show that counsel’s deficient performance prejudiced
the defendant. See Samora, 

.

¶38 King’s first rule 23B argument is that Counsel was
ineffective for electing not to introduce more specific evidence of
the earlier altercations between King and Anna. During cross-examination of Officer, Counsel did bring up the earlier
encounters, and he even got Officer to acknowledge that he had
not investigated certain earlier “domestic violence cases where
[Anna] had been arrested” as the aggressor. But Counsel did not
introduce any additional detail about these incidents, a decision
that King now claims was deficient. After examining the
additional evidence King asserts Counsel should have
introduced, we conclude that Counsel had solid strategic reasons
for not attempting to introduce it.

¶39 To be sure, the evidence of the encounters includes some
details helpful to King, such as the fact that Anna had physically
struck King and, on two of the several occasions, police arrested
Anna as the aggressor. But as already noted, Counsel had already
brought to the jury’s attention the fact that Anna had been
deemed the aggressor on some of the earlier occasions. The
remaining details were, at best, a plus/minus for King, because
they included allegations that King had, on previous occasions,
admitted to not only physically assaulting Anna, but also to



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                            State v. King


calling her incredibly offensive names that we elect not to repeat
in this opinion. In short, our review of the proffered detail from
the earlier encounters is that reasonable counsel could very well
have determined not to put that evidence in front of the jury.

¶40 King’s second rule 23B argument is that Counsel should
have called King’s health-care provider to testify that King has “a
severe lung condition” that has resulted in him having “half the
lung function he should for his current age,” and that he “would
not be able to tolerate a prolonged period of vigorous activity.”
King asserts that his reduced lung function is relevant here
because his condition rendered it “impossible for [him] to have
been physically capable of completing the actions” that Anna
claimed he completed, including beating her to the point of
causing severe bruising. But King admitted to many of the
assaultive acts: he told Officer that he twice grabbed Anna around
the throat in a purposeful effort “to get her to pass out” and to
“push her into the bathroom.” He also admitted to biting Anna.
Moreover, it was undisputed that Anna had extensive injuries,
and King offered no alternative explanation as to how she might
have obtained the black eyes and the bruises. Thus, King’s
primary defense at trial wasn’t that he couldn’t have committed
the actions but, instead, that he had taken the actions in self-defense. Even after reading King’s briefing on the point, we are
unclear how the health-care provider’s testimony about King’s
reduced lung function would have helped further King’s defenses
at trial. We therefore conclude that Counsel could reasonably
have determined not to call the health-care provider.

¶41 Finally, King argues that Counsel should have introduced
into evidence part of Officer’s body camera video footage. This
video clip shows a conversation between two police officers that
took place after they interviewed King and decided to arrest him.
One of the officers says either “end of video” or “end the video.”
The officer then comments, to the other officer, as follows: “I think
you probably could have turned that right around on him.” King



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                            State v. King


interprets this video as exhibiting “police bias against” him in the
form of a “desire to turn things around on” him. The State
espouses an entirely different—and much more benign—
interpretation of the video clip: in the State’s view, the statements
in the clip simply represent one officer giving post-event
constructive criticism to another officer about his interview
technique. We have watched the video clip ourselves, and it
appears to us that the State’s interpretation is the better one. At a
minimum, we conclude that Counsel could reasonably have
decided not to use this particular video clip to mount a police-bias
argument against Officer.

¶42 Accordingly, we deny King’s request for a rule 23B remand
because—even assuming that the proffered evidence were part of
the record—King has not demonstrated that Counsel performed
deficiently. 4


                          CONCLUSION

¶43 The trial court did not abuse its discretion in overruling
King’s objection to Anna’s testimony about the extent of her
injuries. And King has not demonstrated that Counsel performed
deficiently on any of his claims of ineffective assistance.
Accordingly, we deny King’s rule 23B request for a remand and
affirm King’s convictions.




4. King also raises a cumulative error argument. But because we
have not identified any errors, King cannot succeed in making a
cumulative error argument. See State v. Modes, 

,
¶ 12 n.5, 

 (“Because we conclude that there are no
errors to accumulate here, the cumulative error doctrine is
inapplicable in this case.” (quotation simplified)).


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