State v. Arce

                THE UTAH COURT OF APPEALS

                          STATE OF UTAH,
                             Appellee,
                                 v.
                         JOSE FELIPE ARCE,
                            Appellant.

                             Opinion
                        No. 20220006-CA
                       Filed March 28, 2024

             First District Court, Logan Department
              The Honorable Brandon J. Maynard
                           No. 191100762

               Freyja Johnson, Emily Adams, and
                     Hannah Leavitt-Howell,
         Attorneys for Appellant, assisted by law student
                        Ryder Seamons 1
                Sean D. Reyes and Marian Decker,
          Attorneys for Appellee, assisted by law student
                         Rebecca Barker

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

MORTENSEN, Judge:

¶1     A domestic dispute ensued on an emotional evening after
Jose Felipe Arce had returned home from attending the birth of a
child he believed he fathered as a result of an affair. Arce does not
dispute that an argument occurred. He denies, however, that he
hit or choked his spouse (Wife). This appeal centers on Wife’s
statements near the time of the event and her complete

1. See Utah R. Jud. Admin. 14-807 (governing law student practice
in the courts of Utah).
                             State v. Arce


recantation at trial. Arce claims numerous errors, including that
the trial court should not have allowed the State to compel Wife
to invoke her Fifth Amendment right 47 times in front of the jury,
a deputy should not have been allowed to vouch for a particular
version of Wife’s testimony, the State and a witness should not
have used the word “victim” 29 times, and these errors
cumulatively prejudiced him. Although we do not endorse the
approach taken by the trial court or the parties, we affirm the
convictions.


                          BACKGROUND

¶2     The State charged Arce with, and the jury convicted him
on, one count of aggravated assault (domestic violence) and five
counts of domestic violence in the presence of a child. At the
center of this appeal are the different versions of events as related
by Wife. We recite the facts in a light most favorable to the jury’s
verdict. See State v. Holgate, 

, 

.

 Alleged Assault and Wife’s Statements in the Subsequent Hours and
                                Days

¶3     In July 2019, Arce visited the hospital for the birth of a child
whom both Arce and Wife believed he may have fathered with
another woman. Wife described the day as an emotional one filled
with tears. When Arce returned from the hospital, the couple
decided to take their kids swimming at a hot springs resort. The
couple talked about the difficult situation on the drive there, with
more crying from Wife. On the drive home, their conversation
escalated into an argument while the children slept in the back
seat. After Arce asked for forgiveness, Wife said she had forgiven
him for “many things” but “this was just too much.” Arce pulled
the car over, and Wife said that the two “couldn’t be together
anymore.” Wife later told police and neighbors that after pulling
over, Arce hit and choked her.




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                           State v. Arce


¶4     Arce then drove the family home, and he told the children
to go inside. Wife later told police and neighbors that, as they
continued arguing, Arce hit her, threw her to the ground, kicked
her, pulled her hair, tried to choke her, and threatened to hit her
with a beer bottle.

¶5     At this point, Wife ran to her neighbor’s (Neighbor) home.
Neighbor could hear Arce yelling as she opened the door to find
Wife out of breath, shaking, and crying. Wife was in a t-shirt with
no pants. Neighbor and her husband (Neighbor’s Husband)
believed Wife was seeking safety. Wife told them Arce was trying
to hurt her. She also told the couple she wanted Arce out of the
house. She then recounted the earlier fight that had happened
during the drive home, including that after arriving home Arce
had hit and kicked her and tried to choke her. Neighbor did not
see any injuries on Wife. Neighbor’s Husband said that he saw “a
red mark kind of on her collarbone on her left side.”

¶6     Neighbor’s Husband, a deputy sheriff, called police, who
arrived fewer than ten minutes later. The responding officer
(Deputy) interviewed Wife at Neighbor’s home that evening.
Deputy testified that Wife appeared “extremely distraught,”
“frantic,” and “emotionally distressed” and that she continuously
wiped her eyes and nose from crying. During the interview, Wife
told Deputy that Arce both struck and choked her. She also
recounted that after returning home, Arce dragged her out of the
car by her hair, threatened to hit her with a beer bottle, choked
her, and slapped her. Deputy observed that the area under Wife’s
right eye was “somewhat swollen” and that she had “some sort of
reddish mark” on her collarbone that looked like it was beginning
to bruise.

¶7     By that time, Arce had left the scene. Wife signed a request
for a no-contact order and, with her children, went to emergency
housing that the Deputy arranged. Wife also completed a lethality
assessment. In the assessment, Wife indicated that she thought



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                           State v. Arce


Arce might try to kill her. In an additional comment section, Wife
noted that “having [Arce] at the home was a concern of safety for
her.”

¶8      The following day, a police officer (Detective) interviewed
Wife at her work. Wife again recounted the events, including Arce
choking her, slapping her, grabbing her hair, throwing her to the
ground, and threatening to hit her with a bottle. Wife also filled
out a written statement during the interview with Detective
recounting these same allegations. The top of the statement gave
the following warning, “You are notified that the statements you
are about to make may be presented to a magistrate or a judge in
lieu of your sworn testimony at a preliminary examination. Any
false statements you make and that you do not believe to be true
may subject you to criminal punishment as a Class A
Misdemeanor.” Wife signed the statement.

¶9      That same night, Deputy interviewed Arce by phone. Arce
explained that he and Wife had taken the children to the resort “to
have a good day” but Wife kept bringing up the infidelity and
birth of the baby, so the two argued. Arce said that during the
argument, he went through Wife’s phone, saw messages from
another man, and asked, “[W]ho the f*** is this person?” When
asked if he hit or choked Wife, Arce responded that he did not
recall. Arce did, however, say that there was a miscommunication
between them and that there was “some pushing and shoving.”

             Wife’s Recantation and Testimony at Trial

¶10 The same day that Detective interviewed Wife, Deputy
listened to a voicemail from Wife asking that all charges be
dropped. When Wife later spoke with Deputy on the phone, she
again asked that the charges be dropped. Wife explained that Arce
“had a good job and that she needed help with the five children.”

¶11 At trial, Wife testified consistently with the prior
statements she had made to law enforcement and her neighbors,


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                            State v. Arce


however, she insisted that she made up the allegations of
domestic violence against Arce. From the stand, Wife said, “This
is why I wanted to just come up here because I hear all the charges
and it’s really very selfish of me, you know. So this is why I’m
sitting up here and I’m saying what really happened.” Wife
testified that all the events occurred as she explained to law
enforcement and the neighbors but that Arce never hit or choked
her. Wife testified that after telling Arce they could not be together
anymore, she told him to take her home, and he did. Wife testified
that she opened the car door and sat on the edge of her seat while
they continued arguing and yelling at one another but no physical
altercation occurred.

¶12 When the State began asking her questions about police
arriving the night of the incident and what she told them, the
court stopped the questioning and excused the jury. The court
explained to Wife that she had a right not to incriminate herself
and that doing so would open her up to prosecution. The State
asserted several times, “We won’t charge her.” The State also
served Wife with a written notice of use immunity for purposes
of the trial.2 And the court provided her with the opportunity to
speak with an attorney. Subsequently, Wife was appointed
counsel.

¶13 Following a recess, the State asked that Wife be declared a
hostile witness, allowing it to ask her leading questions, which the
court granted. After speaking with his client, Wife’s counsel
advised the court that Wife would be exercising her Fifth
Amendment right moving forward. The State argued that the
immunity it had offered Wife would protect her and that it was
not the State’s intent “to ask the Court to hold [Wife] in this case


2. A “grant of use immunity [prohibits] any prosecutorial use of
[a witness’s] testimony or evidence gained from it” against the
witness. State v. Morris, 

, 

, cert.
denied, 

 (Utah 2017).


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                             State v. Arce


in contempt” for refusing to testify. Wife’s counsel argued that the
notice of use immunity was inadequate to protect her because it
expressly did not grant immunity against a future perjury
prosecution. The State again asked the court to treat Wife as a
hostile witness. Arce’s counsel objected, arguing that the State
knew weeks in advance that Wife might invoke her Fifth
Amendment right. The State argued that knowing what Wife
would do for weeks in advance was “a little bit of a stretch” and
that its grant of use immunity was sufficient.

¶14 During further argument over whether to allow the State
to treat Wife as a hostile witness, the State again said it would not
seek to have the court hold her in contempt. The court ultimately
granted the State’s request and received affirmation again from
the State that it would not ask the court to hold Wife in contempt
if she refused to testify.

¶15 The next day, the State retracted its written immunity offer
and explained that it planned to ask Wife questions to which she
could “choose to invoke the Fifth or to respond.” Wife’s counsel
objected, arguing, “[T]he State’s going to try to . . . present their
case by asking those questions and hearing the Fifth . . . . [T]hat’s
just them trying to testify to the jury by the questions they’re
asking.” The court disagreed, explaining that anything the State
said was not evidence and that Wife could not make a “blanket”
invocation of her Fifth Amendment right.

¶16 When Wife took the stand again, she invoked the Fifth
Amendment 47 times in response to the State’s questions. 3 The
State’s questions included asking Wife about the same things she
had addressed the day before, prior to invoking her constitutional
right to silence. Arce’s counsel did not object to or seek to limit the


3. The State argues that she invoked the Fifth Amendment 45
times, but the discrepancy of two invocations is not dispositive in
this case, so we will use Arce’s number moving forward.


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                           State v. Arce


State’s leading questions or Wife’s invocations; neither did he
request a mistrial.

                     Other Testimony at Trial

¶17 During the trial, the State called Neighbor, Neighbor’s
Husband, Deputy, and Detective to the stand; each recounted the
events and gave consistent testimony of the statements Wife made
to them concerning the events during the evening in question—
including the physical abuse she allegedly experienced at the
hands of Arce.

¶18 During Deputy’s examination, the State asked, “And so
ultimately what did your investigation lead you to believe
happened that night?” Defense counsel made no objection.
Deputy responded, “Based off all my observations and interview,
I believe that the victim had been struck and choked and that there
was a domestic violence assault that occurred.” The State then
asked, “And I just want to emphasize, why is it that you believed
that this truly happened?” Defense counsel again made no
objection. Deputy answered,

      I believe it truly happened given a number of things.
      Mainly, when I spoke to [Wife], she appeared to be
      honest and genuine in the emotion that she was
      describing things with was clearly emotional
      distress, upset that I’ve seen. And not every case is
      the same. I’ve seen other people who have been
      victims of assault act similar, so that’s why I
      believed it. She appeared to be honest and genuine.

¶19 During Detective’s testimony, the State moved to admit
into evidence Wife’s written statement that was given under
penalty of perjury, which the court allowed.

¶20 The State also called two expert witnesses. A clinical
psychologist testified about patterns of domestic violence and that



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                            State v. Arce


individuals experiencing abuse frequently stay in the relationship
and/or recant their previous stories. And a pediatric nurse
practitioner testified about strangulation, including that in over
50% of strangulation cases there are no visible injuries.

¶21 Throughout the trial, the State, Deputy, and Detective
referred to Wife as “the victim” 29 times. And the State and its
witnesses—primarily the clinical psychologist—used the term
“victim” or “victims” generally an additional 45 times. The State
also referred to Wife as the “alleged victim,” primarily during jury
selection but also sporadically throughout the trial.

                  Closing Arguments and Verdict

¶22 In closing arguments, the State argued that the jury should
believe Wife’s original statements to her neighbors and police as
those were made instinctually to keep her family safe from a
threat rather than out of “selfish[ness] or insincer[ity].” The
defense argued that Wife had every reason to hate Arce but she
wanted to set the record straight about her lies concerning the
events of that night and that the State’s case fell apart without her
lies.

¶23 During deliberation, the jury asked for access to the State’s
“questions on day 2 to [Wife] when she pled the fifth.” The court
did not grant the request.

¶24    The jury convicted Arce on all charges. Arce now appeals.


            ISSUES AND STANDARDS OF REVIEW

¶25 Arce raises three issues on appeal. First, Arce argues that
the trial court incorrectly allowed the State to compel Wife to
invoke her Fifth Amendment right 47 times in front of the jury.
We give trial courts “broad discretion to admit or exclude
evidence, including lay witness testimony, and will disturb [a trial



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                             State v. Arce


court’s] ruling only for abuse of discretion.” State v. Perea, 

, 

 (cleaned up). But the trial court must
correctly interpret and apply the law. Id. ¶ 30. We review “the
legal questions underlying the admissibility of evidence” for
correctness. Dierl v. Birkin, 

, 

(cleaned up), cert. denied, 

 (Utah 2023).

¶26 Second, Arce argues that he received constitutionally
ineffective assistance of counsel when his counsel (1) did not seek
to limit or remediate the continued questioning of Wife by
objecting, moving to strike both the questions and invocations, or
asking for a curative instruction; (2) failed to object to Deputy
improperly opining on and vouching for the credibility of Wife’s
report the night of the incident; and (3) failed to object to the State
and witnesses referring to Wife as “the victim” 29 times during
the trial. “When a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court ruling
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of law.”
State v. Reid, 

, 

 (cleaned up),
cert. denied, 

 (Utah 2018).

¶27 Finally, Arce argues that under the cumulative error
doctrine, the evidentiary error and ineffective assistance of
counsel Arce received should undermine our confidence in the
outcome of the trial. “We will reverse a jury verdict or sentence
only if the cumulative effect of the several errors undermines our
confidence that a fair trial was had.” State v. Lopez, 

, 

 (cleaned up).


                             ANALYSIS

                        I. Evidentiary Ruling

¶28 Arce argues that the trial court improperly overruled
Wife’s counsel’s objection to the State questioning Wife despite



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                             State v. Arce


knowing that she would invoke her Fifth Amendment right. Here,
the trial court did not expressly say why it allowed the State,
knowing Wife would invoke her constitutional privilege, to
continually examine Wife. After Wife met with counsel and
determined that she would invoke her Fifth Amendment right
moving forward, the State asked the court to declare Wife a hostile
witness and allow the State to continue examining her with
leading questions. Wife’s counsel objected to declaring her
hostile, arguing that the State already knew she would invoke her
right for each question, which would allow the State, in Wife’s
counsel’s words, to “present their case by asking those questions
and hearing the Fifth” and to offer testimony “to the jury by the
questions they’re asking.” The court responded that “anything
[the State] says isn’t evidence, so it doesn’t matter.” And Wife’s
counsel responded that the court should not allow it precisely
because the State’s questions would not be evidence. The court
disagreed and determined that the State could ask questions and
that Wife could invoke her right to every question if she wanted
to but she had to testify “if it [had] nothing to do [with a topic]
that would incriminate her.” The court further determined that
Wife’s invocation of her Fifth Amendment right could not be
invoked in a blanket fashion and that she would have to invoke it
for each question, as there may be some she could answer.

¶29 The State argues that regardless of the court’s reasoning,
the court did not err because Wife waived her privilege by
testifying earlier and recanting her story.4 We note that the State
did not make this argument during trial. Alternatively, the State


4. Though we make our decision on preservation grounds, it
appears the State is correct that a witness cannot testify about a
subject and later invoke a Fifth Amendment privilege in order to
avoid cross-examination on that same topic. See Mitchell v. United
States, 

 (1999); In re Flint Water Cases, 

,
193 (6th Cir. 2022). This issue is addressed further below. See infra
¶ 36.


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                            State v. Arce


argues that Wife never had the privilege to begin with because the
State provided her with immunity. 5

¶30 Notwithstanding each parties’ arguments, our review of
the record indicates that Arce did not preserve this issue. It is
“well within our prerogative to raise a preservation issue on our
own initiative when it provides an alternative basis for


5. The State argues that a valid claim of privilege “turns in part on
the likelihood of future prosecution.” A witness may not “employ
the privilege to avoid giving testimony that he simply would
prefer not to give,” Roberts v. United States, 

, 560 n.7
(1980); instead, the witness must face real—not remote or
speculative—dangers, Zicarelli v. New Jersey State Comm’n of
Investigation, 

 (1972). Therefore, a grant of
immunity nullifies the witness’s privilege as it forecloses the
possibility of subsequent prosecution. State v. Morris, 

, 

, cert. denied, 

 (Utah
2017). Here, the State argues that while it did withdraw the
written immunity offer, the offer was “irrelevant” as the State put
on the record several times that it would not seek to have the court
hold Wife in contempt for refusing to testify. We do not agree and
fail to understand how a promise not to seek to have a trial court
hold Wife in contempt is sufficient to rise to the level of granting
her “effective blanket immunity,” as the State argues. Wife still
faced the very real danger of prosecution for perjury, for which
the State offered her no protection. Thus, the State did not provide
Wife with immunity—either written or through promises not to
charge her with contempt—and Wife’s Fifth Amendment
privilege remained intact. However, the State is likely correct that
the right had been waived for subjects about which she freely had
already testified. And, as discussed, this issue was not preserved,
so there is no need for further consideration of whether allowing
the State to continue questioning Wife was an error and, if so,
whether there was a reasonable likelihood of a more favorable
outcome for Arce absent the questioning.


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                            State v. Arce


affirmance, even if the State failed to brief the preservation
argument.” State v. Malo, 

, ¶ 20 n.7, 

. In
Cook Associates, Inc. v. Warnick, 

 (Utah 1983), our
supreme court confronted “[w]hether an objection by one party
properly preserves an objection on appeal as to another party.” 

. The supreme court followed what “[v]irtually every other
jurisdiction that has considered the question has concluded,”
which is that “an objection . . . by one or more parties at trial does
not inure to the benefit of other parties who do not join in the
objection.” 

 at 1164–65. In State v. Calliham, 

, 

, two brothers charged with murder were tried together. 

¶¶ 1–3. Following their convictions, one brother (Brother 1)
appealed. 

 ¶¶ 18–19. As part of his appeal, Brother 1 argued
that the trial court’s decision to admit specific evidence was an
error that violated his constitutional rights. Id. ¶ 32. However, our
supreme court held that this issue was not preserved for appeal,
as it was the other brother (Brother 2) who had objected—an
objection which Brother 1 did not join at trial. Id. ¶ 33. “[Brother
1] did not join in [Brother 2’s] objections on the record or make
any objection of his own,” thus preventing him from claiming on
appeal that it prejudiced him or undermined his constitutional
rights. Id.

¶31 Similarly, in the case before us, Arce was not the one who
objected to Wife taking the stand, knowing she would invoke her
Fifth Amendment right for every question—it was Wife’s counsel
who made the objection. Arce did not join that objection. 6


6. Arce acknowledges that it was Wife’s counsel rather than his
own who made the objection to Wife taking the stand knowing
she would invoke her Fifth Amendment right. Despite this, Arce
argues that the issue is preserved by primarily relying on Kell v.
State, 

, 

. But Kell is distinguishable from
the present case. In Kell, the question was whether an issue was
preserved when the State opposed a criminal defendant’s rule
                                                     (continued…)


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                            State v. Arce


Therefore, as in Calliham, Arce has not preserved the right to now
claim on appeal that the court erred in its decision to allow Wife
to testify, which in turn allowed the jury to hear her invocations
47 times. 7

¶32 And the issue needed to be “preserved in order to give the
trial court an opportunity to address the claimed error, and if
appropriate, correct it.” Kell v. State, 

, 

 (cleaned up). Here, the trial court had no such opportunity.
It is readily evident from our review of the record that the trial
court was not focused on the impact these Fifth Amendment
issues would have on Arce. Instead, the trial court ruled on this
issue through the lens of its impact on Wife. Had Arce objected,
the trial court may have fully engaged in an analysis of whether
Wife’s Fifth Amendment right was waived or abandoned as the
State suggests. But Arce made no such objection, and therefore the
court engaged in no such analysis.

¶33 “As a general rule, claims not raised before the trial court
may not be raised on appeal,” and it is “well-established” that this
“preservation requirement applies to every claim, including
constitutional questions.” Conner v. Department of Com., 

, 

 (cleaned up). Despite Arce’s
arguments that he preserved this issue, the record does not
support his assertions, as “a party must raise [the issue] before the
[trial] court specifically, in a timely manner, and with support by
evidence and relevant legal authority, such that the issue has been


60(b) motion and the criminal defendant did not respond to the
State’s arguments yet later sought to appeal the decision. 

 ¶¶ 9–
10. The State and a criminal defendant are not in an analogous
adversarial position to the criminal defendant and nonparty
witness, Wife, present here. Kell is simply inapposite.

7. Arce does not claim the application of any exception to
preservation.


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                           State v. Arce


presented to the trial court in such a way that the trial court has
an opportunity to rule on it.” 

 (cleaned up). As discussed, the
record does not reflect an objection from Arce on the issue but
instead from Wife, which did not allow the court to review the
issue as it pertains to Arce. Therefore, the issue is not properly
preserved, and we do not consider the merits of his claim.

               II. Ineffective Assistance of Counsel

¶34 “To prevail on an ineffective assistance of counsel claim, a
defendant must meet the two-prong Strickland test: (1) counsel’s
performance was objectively deficient and (2) the deficient
performance resulted in prejudice.” State v. Fleming, 

, 

 (citing Strickland v. Washington, 

,
687–88 (1984)), cert. denied, 

 (Utah 2020). “[D]eficient
performance is not determined in a vacuum; rather, it involves
asking whether the strategy [counsel] employed was that of a
reasonable, competent lawyer in the real-time context” of a trial.
State v. Wilkes, 

, 

, cert. denied,

 (Utah 2021). “However, even where a court cannot
conceive of a sound strategic reason for counsel’s challenged
conduct, it does not automatically follow that counsel was
deficient. . . . [T]he ultimate question is always whether,
considering all the circumstances, counsel’s acts or omissions
were objectively unreasonable.” State v. Scott, 

,

. And a defendant establishes prejudice by showing
“that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” State v. Gonzalez, 

, 

 (cleaned up). “That is, the defendant’s showing must
undermine our confidence in the outcome.” 

 (cleaned up). The
impact of such alleged errors must “be a demonstrable reality.”

 (cleaned up).

¶35 “Because both prongs of the Strickland test must be met to
establish ineffective assistance of counsel, we need not always



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                            State v. Arce


address both prongs.” Fleming, 

 (cleaned up).
“And if it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice that course should be
followed.” Gonzalez, 

 (cleaned up). Given the
likelihood that similar events to those of this case can and will
arise before the trial courts of this state, we address counsel’s
alleged deficient performance, although we ultimately determine
that Arce’s claims fail for lack of prejudice.

A.     Deficient Performance

1.     Invoking the Fifth Amendment

¶36 In addition to Arce’s arguments already discussed above
regarding Wife’s invocation of her Fifth Amendment right, Arce
argues that his counsel acted deficiently by not seeking to limit or
remediate the State’s continued leading questions and Wife’s
invocations by objecting, moving to strike both the questions and
invocations, or asking for a curative instruction. Based on the
reasoning in Mitchell v. United States, 

 (1999), and In re
Flint Water Cases, 

 (6th Cir. 2022), competent counsel
could reasonably choose not to take any of these actions, as Wife
had waived her Fifth Amendment privilege by having voluntarily
testified about the matter in question. A “witness . . . may not
testify voluntarily about a subject and then invoke the privilege
against self-incrimination when questioned about the details.”
Mitchell, 

. “When the witness testifies, the privilege
is waived for the matters to which the witness testifies.” In re Flint
Water Cases, 53 F.4th at 193 (cleaned up). Thus, Arce’s counsel, and
correspondingly the trial court, could have concluded that Wife
did not have the right to invoke the privilege. Therefore, we
determine that Arce fails to show deficient performance. 8


8. Arce points to State v. Bond, 

, 

, for us to
consider. But Bond is not particularly helpful here. The witness in
                                                     (continued…)


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                           State v. Arce


¶37 Arce claims his counsel should have objected and pointed
the court to rule 403 (excluding evidence which is substantially
more prejudicial than probative), rule 510(c) (disallowing
comment by a judge or counsel about, or a factfinder making an
inference from, the invocation of a privilege), or rule 611(a)
(allowing a court to control the examination of witnesses so as to
avoid wasting time or the harassment or embarrassment of a
witness) of the Utah Rules of Evidence. Arce makes no effort,
however, to provide us with the context of Wife’s 47 invocations
or the depth of her earlier testimony. 9 While Arce discusses Wife’s
trial testimony prior to the court’s interruption to allow her to
consult her counsel, he provides the court no comparison of that
testimony with the subject matter of the questions asked on cross-examination when she began invoking the Fifth Amendment. As
a result, the briefing leaves us with no understanding about


Bond did not attempt to invoke his Fifth Amendment privilege to
avoid answering a question regarding a subject about which he
had testified previously. Id. ¶ 10. Also, the analysis in Bond must
be viewed in context. In Bond, the Utah Supreme Court was
reviewing the denial of a motion for a mistrial—a trial court
decision reviewed under an abuse of discretion standard—and an
allegation of prosecutorial misconduct. Id. ¶¶ 13, 22. Thus, unlike
the case before us, Bond does not address these issues as
evidentiary rulings.

9. We acknowledge that Arce has appended a transcript
containing the invocations to his brief. But beyond the appendix,
Arce’s brief makes no attempt to address the context of the
invocations—referring to them only as a whole rather than
providing any information as to the subject matter of the
questioning that provoked them. Arce does not attempt to
explain, for example, if one, two, or three questions might be
permissible. Neither does he explain at which point the line
would have been crossed to render his counsel’s inaction
objectively unreasonable.


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                            State v. Arce


whether all 47 invocations were directly addressing matters about
which Wife had already testified—particularly her recantation.
Assuming the questions were simply cross-examination of
statements made earlier in trial, Arce’s counsel would have no
basis for an objection because the privilege would be waived.
Furthermore, without an understanding of the depth of Wife’s
earlier testimony, we cannot gauge whether 47 invocations
corresponded in an impermissible or potentially prejudicial way
to Wife’s prior trial testimony. Within the confines of the briefing
provided to us, we cannot fault Arce’s counsel for failing to object
or make other efforts to limit the testimony.

¶38 Given that there is an obvious basis to believe that Wife no
longer possessed a Fifth Amendment privilege and where the
briefing does not delineate any context for the questions for which
the privilege was invoked, Arce has not overcome the
presumption that his counsel acted reasonably, and we cannot
conclude that Arce’s counsel was objectively deficient in his
representation. State v. Hart, 

, 

(stating that to prove deficient performance a defendant must
overcome a “strong presumption that his trial counsel rendered
adequate assistance” (cleaned up)), cert. denied, 

 (Utah
2020). We acknowledge that there certainly could be
circumstances where compelling a witness to invoke a privilege
47 times would be troubling, but we can reach no conclusion
about counsel’s failure to object to these questions here.

2.     Witness Opining and Vouching

¶39 Arce further argues that his counsel performed deficiently
by failing to object to Deputy opining on and vouching for the
credibility of Wife’s statement the night of the incident. Rule
608(a) of the Utah Rules of Evidence “permits testimony
concerning a witness’s general character or reputation for
truthfulness or untruthfulness but prohibits any testimony as to a
witness’s truthfulness on a particular occasion.” State v. King, 2010



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                            State v. Arce


UT 

 (cleaned up); see also State v. Adams,

, 

 (detective testifying “he did not
believe [the victim] was coached” was inadmissible vouching);
State v. Jones, 

, 

 (per curiam)
(“[A]dmission of testimony that bolsters the credibility of another
witness’s testimony on a particular occasion is improper.”); id.
¶ 18 (officer testifying regarding interview techniques for
domestic violence victims did not violate rule 608 because he did
not opine on the victim’s truthfulness on a particular occasion);
State v. Lewis, 

, 

 (police sergeant
describing variations he sees in victims’ statements when multiple
accounts are given was not bolstering, as “he did not directly
opine on [the victim’s] credibility”); State v. Cegars, 

, ¶¶ 23–24, 

 (school counselor testifying that she did
not believe the victim would fabricate allegations was
inadmissible bolstering); State v. Vail, 

,

 (detective testifying that two victims of child sexual
abuse “exhibited the indicators that she equated with
trustworthiness” was inadmissible bolstering); State v. Stefaniak,

 (Utah Ct. App. 1995) (social worker testifying
that a victim of abuse “seemed to be quite candid” in an interview
was inadmissible vouching (cleaned up)). For example, an officer
cannot comment on whether a witness appeared “to be genuine”
during an interview, as it is a direct comment on the witness’s
truthfulness and clearly violates rule 608. State v. Bragg, 

, 

 (cleaned up). We emphasize again
today that the State’s use of a law enforcement officer’s testimony
for bolstering and vouching in this manner is inappropriate. We
perceive no strategic reason that Arce’s counsel would reasonably
fail to object to this testimony.

¶40 But even so, Arce can prevail only if he establishes both
deficient performance and prejudice. And for the reasons set forth
in Part II.B, we conclude that he was not prejudiced by this
deficient performance.




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                            State v. Arce


3.     Referring to Wife as “the Victim”

¶41 Finally, Arce argues that his counsel performed deficiently
by failing to object to the State and witnesses referring to Wife as
“the victim” 29 times in front of the jury. Our supreme court
“recognize[s] the gravity of referring to witnesses as victims
during a trial.” State v. Vallejo, 

, 

. In
cases, such as the one before us, “where a defendant claims that
the charged crime did not actually occur, and the allegations
against that defendant are based almost exclusively on the
complaining witness’s testimony—the trial court, the State, and
all witnesses should be prohibited from referring to the
complaining witness as ‘the victim.’” State v. Devey, 

, 

. Though in this case we do not exclusively
rely on such testimony because there was a “sort of reddish mark”
on Wife’s collarbone and Arce told Deputy there was “some
pushing and shoving,” we still restate today that the action of
referring to the complaining witness as “the victim” by anyone in
front of the jury is inappropriate. Again, we perceive no strategic
reason that Arce’s counsel would reasonably fail to object to this
testimony.

B.     Prejudice

¶42 Ultimately, Arce has not shown that any of these alleged
errors prejudiced him. There is not a reasonable probability that
but for Arce’s counsel failing to object further to the State’s
questioning of Wife, moving to strike, or asking for a curative
instruction, the result of Arce’s trial would be different. As
mentioned, the jury heard testimony from four witnesses, each of
whom told the same story, namely, that Wife said Arce hit and
choked her that night. The testimony of these four witnesses
matched Wife’s own words in the statement she gave to Detective.
Furthermore, the reason Wife provided to Deputy for dismissing
the charges was not that she had lied but that she needed Arce to
keep his job as well as his help with their children. As we point



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                           State v. Arce


out above, even Arce in his statement to Deputy admitted there
was “some pushing and shoving,” which is inconsistent with
Wife’s recantation. And Arce did not explicitly deny that he hit,
kicked, or choked Wife, instead stating only that he could not
recall doing so. Most reasonable jurors would think that physical
assault is something that one would remember having
committed. Furthermore, and perhaps most convincingly, Wife’s
own statement to Detective was entered into evidence for the jury
to read. In short, finding that none of these alleged errors
undermines our confidence in the outcome of this case, each of
Arce’s claims of ineffective assistance of counsel fails for lack of
prejudice. Moreover, because none of these alleged errors were
sufficiently prejudicial alone, we, for the same reason, conclude
that the errors do not cumulatively undermine our confidence in
the outcome of the trial. 10


                         CONCLUSION

¶43 Arce’s claim that the court erred by allowing the State to
repeatedly compel Wife to invoke her Fifth Amendment privilege
in front of the jury fails because the issue was not preserved.
Furthermore, Arce’s claims of ineffective assistance of counsel fail
because his counsel’s failure to object to Wife’s invocations,
Deputy’s vouching for Wife’s credibility, and repeated references
to Wife as “the victim” do not present a reasonable probability
that but for Arce’s counsel’s failure the result of the proceeding
would have been different. We therefore affirm Arce’s
convictions.


10. “The cumulative-error doctrine requires us to reverse if (1) we
determine, or assume without deciding, that two or more errors
occurred and (2) we determine that the cumulative effect of those
errors undermines our confidence that a fair trial was had.”
ConocoPhillips Co. v. Utah Dep’t of Transp., 

,

.


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