DAVIS, Judge:
¶ 1 Azlen Adieu Farquoit Marchet appeals his conviction for two counts of aggravated sexual assault, first degree felonies, see Utah Code Ann. § 76-5-405 (2003) (current version
¶ 2 Marchet raises several ineffective assistance of trial counsel arguments on appeal. He argues that his trial counsel was ineffective for failing to object to the majority of Nurse Practitioner Diane Fuller's testimony, for failing to object to the prosecutor's alleged misconduct, and for failing to object more enthusiastically to the mens rea jury instructions. "[W]hen an ineffective assistance claim is first raised on direct appeal, this court can ... determine that the defendant was denied effective assistance of counsel [only] if it can do so as a matter of law." State v. Bair, 2012 UT App 106, ¶ 12, 275 P.3d 1050 (second alteration and omission in original) (citation and internal quotation marks omitted); see also Menzies v. Galetka, 2006 UT 81, ¶ 58, 150 P.3d 480 ("Ineffective assistance of counsel claims are a unique species of claim that are frequently raised for the first time on appeal and are regularly decided based on the record."). To succeed on an ineffective assistance of counsel claim, "a defendant must first demonstrate that counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgment," which "requires that a defendant rebut the strong presumption that under the circumstances, the challenged action might be considered sound trial strategy." State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (internal quotation marks omitted) (citing Strickland v. Washington, 466 U.S. 668, 687-89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The second prong of the Strickland analysis requires that the defendant demonstrate "that counsel's deficient performance was prejudicial — i.e., that it affected the outcome of the case." Id. (citing Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052).
¶ 3 Marchet's first ineffectiveness claim centers on trial counsel's failure to object to Nurse Fuller's ability to testify as a lay witness because her testimony was based on her professional interpretation of Exhibit 17 — a sexual assault examination report completed by Nurse Sandra Dunn after examining the complainant, A.H., hours after A.H. was raped — rather than her memory of being present during A.H.'s examination. See generally Utah R. Evid. 602 ("A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.... This rule does not apply to a witness's expert testimony under Rule 703."). While it does appear that Nurse Fuller's actual memories from A.H.'s examination were minimal, Marchet's argument overlooks the fact that the trial court allowed Nurse Fuller to testify as an expert witness, not a lay witness. The State began its direct examination of Nurse Fuller by establishing that she has nearly thirty years of experience as a nurse practitioner with specializations in sexual assault nursing and forensic nursing. Marchet does not challenge Nurse Fuller's ability to testify as an expert witness or her ability to base that expert testimony on a review of Exhibit 17, which is exactly what Marchet's own expert witness did. See generally id. R. 703 ("An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed."). We are therefore unconvinced that an objection under rule 602 would have been anything but futile, and "[f]ailure to raise futile objections does not constitute ineffective assistance of counsel." State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546. Additionally, trial counsel clarified the basis of Nurse Fuller's testimony on cross-examination by garnering admissions from her explaining that she did not "have an independent recollection of what specific tasks [she] did when [Exhibit 17] was being prepared" by Nurse Dunn and that her testimony was "based upon the report of somebody else, and the photographs taken during" the examination, of which she also lacked an independent recollection.
¶ 5 Next, Marchet argues that the prosecutor committed misconduct by "foist[ing N]urse Fuller ... onto the court, jury, and defense counsel, as having prepared [Exhibit 17] herself" and as "having an independent recollection" of participating in the sexual assault examination of A.H., when "all she was capable of doing was reading the report and drawing inferences based upon `custom and practice.'" Marchet contends that this misrepresentation by the State amounts to a suppression of exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ("[T]he suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."). Marchet admits that this prosecutorial misconduct argument was "not specifically preserved" and argues that we should review it under his ineffectiveness argument
¶ 6 While the State's initial disclosure of Nurse Fuller as one of its expert witnesses appears to have incorrectly described Exhibit 17 as a report she authored, we cannot say that such an error amounted to prosecutorial misconduct, especially where Marchet has not demonstrated how he was prejudiced by this misattribution; indeed, Marchet's trial counsel was not only aware of the misattribution several months before trial but also used it to attack Nurse Fuller's credibility on cross-examination. Additionally, we disagree with Marchet's characterization of Nurse Fuller's testimony on direct examination as misleading; it was clear that she was testifying as an expert and that her statements were based primarily on her expertise. Thus, the State's actions did not amount to prosecutorial misconduct, and trial counsel's failure to object on prosecutorial misconduct grounds was not ineffective assistance. See Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546.
¶ 7 As his last ineffectiveness argument, Marchet contends that his trial counsel's "tepid objection to the court's refusal to give his [proposed mens rea] jury instructions" amounted to ineffective assistance. Marchet concludes that instructions 37 and 38 are confusing and contradictory when read together and that this obvious flaw in the instructions amounted to such a glaring error by the trial court that had trial counsel objected with more gusto, the trial court was bound to recognize and correct the error of its ways, specifically by adopting Marchet's previously rejected proposals for the mens rea jury instruction. We, however, are not convinced that had Marchet's trial counsel objected more enthusiastically, the trial court would have reconsidered and reversed its decision on the jury instructions.
¶ 8 Marchet next argues that the trial court erroneously admitted evidence of other bad acts under rule 404(b) of the Utah Rules of Evidence. See generally Utah R. Evid. 404(b)(2) (permitting evidence of a prior bad act to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident"). Specifically, Marchet contends that testimony from one rule 404(b) witness, P.C., was unwarranted because it was not similar enough to A.H.'s testimony and the testimony of the other rule 404(b) witness, S.W., to support the permitted noncharacter purpose of demonstrating Marchet's intent, lack of consent, or modus operandi.
¶ 9 "[W]e review a trial court's decision to admit evidence under rule 404(b)... under an abuse of discretion standard[, and w]e review the record to determine whether the admission of other bad acts evidence was scrupulously examined by the trial judge in the proper exercise of that discretion." State v. Mead, 2001 UT 58, ¶ 61, 27 P.3d 1115 (first alteration and omission in original) (citation and internal quotation marks omitted). Here, the trial court "scrupulously examined" P.C.'s proposed testimony and walked through the three-step process for determining the admissibility of the evidence under rule 404(b). See generally State v. Marchet (Marchet I), 2009 UT App 262, ¶ 29, 219 P.3d 75 ("First, `the trial court must ... determine whether the bad acts evidence is being offered for a proper, noncharacter purpose, such as one of those specifically listed in rule 404(b).' ... If the purpose is deemed proper, `the court must [next] determine whether the bad acts evidence meets the requirements of rule 402 [of the Utah Rules of Evidence], which permits admission of only relevant evidence.' Last, the court must analyze the evidence in light of rule 403 [of the Utah Rules of Evidence] to assess whether its probative value is substantially outweighed by the risk of unfair prejudice to the defendant." (first alteration and first omission in original) (citations omitted) (quoting State v. Nelson-Waggoner, 2000 UT 59, ¶¶ 18-20, 6 P.3d 1120)). The trial court focused on the similarities among the three women's testimony, noting that, like the other witnesses, P.C. testified that Marchet sought her out while she was at a nightclub with a friend; that he gave her a false name; that he lured her away from her friend and into a secluded area (a hotel stairwell in P.C.'s case) under a false pretense; that once in the secluded area, he physically overpowered her, "flipping" her around so that her back faced his chest; that once she was turned around and held against him, Marchet moved her clothing out of the way and she heard his pants zipper; and that she told him, "No" and indicated that she was not consenting. It was at that point, as P.C. testified, that she "thought he was going to rape [her]," prompting her to yell, scream, and fight to get away from him until he ultimately let her go. Like the other women, P.C. also testified that Marchet called her shortly after the incident, acting as if everything was fine, and in P.C.'s case saying that he "wanted to check on [her] because [she] ran out of [the hotel stairwell] pretty quick and [she] seemed upset."
¶ 10 Marchet contends that regardless of those similarities, P.C.'s testimony is inadmissible primarily because, unlike A.H. and S.W., P.C. experienced "a lesser sexual advance... not amounting to aggravated sexual assault, rape or sodomy." We are hardly convinced that P.C.'s fortune of not having been raped or sodomized necessarily renders her testimony so different from the other witnesses as to remove her experience from the realm of admissible evidence under rule 404(b); P.C.'s testimony still remains indicative of intent, lack of consent, or modus operandi under rule 404(b). Marchet's claim that S.W.'s testimony was more probative under rule 404(b) and that P.C.'s testimony was therefore unnecessary, and the additional differences Marchet points out — the span of one-and-a-half years between P.C.'s allegations and the crime charged and the fact that
¶ 11 Last, Marchet argues that the trial court's refusal to admit his out-of-court exculpatory statements was in error. Specifically, Marchet contends that because he was unaware that the telephone call between him and A.H. days after the charged events was a scripted, recorded pretext call set up by the detective working on A.H.'s case (Detective), Marchet's statements during the call demonstrate his belief that A.H. had consented, which is the main theory of Marchet's defense.
Utah R. Evid. 803(3).
State v. Dibello, 780 P.2d 1221, 1228 (Utah 1989). Here, the trial court ruled that "the pre-text call and what was stated during the call are not relevant and/or hearsay and are not appropriate to be admitted" except to the limited extent necessary to explain testimony by A.H. and Detective that alluded to the pretext call. We agree with the trial court.
¶ 12 Marchet's statements, made several days after the charged events occurred, do not amount to evidence of his state of mind as it existed during the encounter with A.H. Compare Shepard v. United States, 290 U.S. 96, 105-06, 54 S.Ct. 22, 78 L.Ed. 196 (1933) ("Declarations of intention, casting light upon the future, have been sharply distinguished from declarations of memory, pointing backwards to the past. There would be an end, or nearly that, to the rule against hearsay if the distinction were ignored. The testimony now questioned faced backward and not forward.... What is even more important, it spoke to a past act, and more than that, to an act by some one not the speaker."), and State v. Jaeger, 1999 UT 1, ¶ 25, 973 P.2d 404 (explaining that rule 803(3) did not apply to the victim's prior statements "concerning her alleged suicide attempt" because those statements merely indicated that "she had attempted suicide in the past, not that she was
¶ 13 In conclusion, Marchet's trial counsel did not perform deficiently in his handling of Nurse Fuller's testimony, Exhibit 17, the prosecutor's conduct, and the mens rea jury instructions. The trial court was correct in permitting P.C. to testify under rule 404(b) and in excluding the pretext call evidence. Accordingly, we affirm.
WE CONCUR: GREGORY K. ORME, Judge and WILLIAM A. THORNE JR., Judge.
