Provo City v. Bishop-Garcia

Citation505 P.3d 81
Decision Date03 February 2022
Docket Number20190872-CA
Parties PROVO CITY, Appellee, v. Melvin Bill BISHOP-GARCIA, Appellant.
CourtCourt of Appeals of Utah

Emily Adams, Freyja Johnson, Salt Lake City, and Cherise M. Bacalski, Attorneys for Appellant

J. Brian Jones, Stephen H. Schreiner, Salt Lake City, and Matthew M. Griffiths, Attorneys for Appellee

Judge Diana Hagen authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.


HAGEN, Judge:

¶1 Our evidentiary rules prohibit "testimony as to a witness's truthfulness on a particular occasion." State v. Boyer , 2020 UT App 23, ¶ 44, 460 P.3d 569 (cleaned up). In this case, Appellant Melvin Bishop-Garcia argues that he did not receive constitutionally effective assistance of counsel at trial because his attorney failed to object to such inadmissible testimony. We agree, vacate Bishop-Garcia's convictions for unlawful detention and sexual battery, and remand for a new trial.


¶2 The alleged crimes occurred at Bishop-Garcia's home in Provo, Utah—a duplex located next door to the restaurant where his wife worked. The duplex had an external entrance leading to the basement, where the restaurant's owner—also Bishop-Garcia's landlord—stored ice for the restaurant's soda machine. Every morning, restaurant employees would go to the basement to retrieve ice for the machine.

¶3 The owner's family friend, Laura,1 worked at the restaurant with Bishop-Garcia's wife. One morning, it was Laura's turn to open the restaurant. After unlocking the doors, she went next door to the duplex, retrieved buckets of ice from the basement, then crossed the backyard on her way back to the restaurant. At this point, Bishop-Garcia emerged from the back door of the house and called to Laura, offering to help.

¶4 As for what happened next, the two provided conflicting accounts at trial. Laura testified that she declined the offer but that Bishop-Garcia invited her inside on the pretense that his wife wanted to speak with her. Thinking that the conversation would only last a moment, Laura followed Bishop-Garcia inside—ice buckets in hand—and waited near the back door while Bishop-Garcia called for his wife (who was not home). As they waited, Bishop-Garcia moved directly behind Laura and began "telling [her] that [she] looked pretty, and that [she] had lost weight." He then grabbed her breast and buttocks.

¶5 Laura immediately turned to leave and, following a brief struggle at the door, managed to get outside. Bishop-Garcia chased after Laura, wrapped his arms around her from behind, and tried to kiss her on the cheek. Once again, Laura broke free and fled to the restaurant, where she locked the back door and called the owner. Moments later, Bishop-Garcia entered through the front door, found Laura, and insisted that she "not ... call the police because he was afraid of losing everything." Laura testified that Bishop-Garcia remained "very persistent" until the owner arrived, at which point Bishop-Garcia exited the restaurant and met the owner outside.

¶6 Bishop-Garcia told a different story. He testified that Laura had accepted his help and that the two briefly embraced before going inside to talk "[a]bout anything." Once inside, Bishop-Garcia told Laura that his wife was not home, after which Laura "changed her demeanor" and quickly returned to the restaurant. "In [Bishop-Garcia's] mind," he "was still helping" Laura, so he followed her there. He could tell that something was bothering Laura, so even when she locked the back door, Bishop-Garcia entered through the front and attempted to "calm her down." According to Bishop-Garcia, Laura inexplicably threatened to call the police, and Bishop-Garcia returned home until the owner showed up.

¶7 Both testified that the owner arrived, spoke with each of them, then called the police. The responding officer interviewed all three parties and decided to arrest Bishop-Garcia. Ultimately, Bishop-Garcia was charged with unlawful detention and sexual battery, and Laura, Bishop-Garcia, the owner, and the officer all testified at Bishop-Garcia's jury trial. This appeal primarily concerns the owner's and the officer's respective testimonies.

¶8 For his part, the owner testified about his conversation with Laura after arriving at the restaurant. The owner stated that Laura had been crying over the phone and that, when he arrived, Laura "was still upset." She told him that Bishop-Garcia had touched her inappropriately, so the owner "decided to call the police right away."

¶9 At trial, the prosecutor asked the owner, "Did you believe [Laura's] story?" The owner replied, "I did."

¶10 The officer also testified about his conversations with Laura that morning. The prosecutor asked the officer, "When you heard [Laura's] story, did it make sense to you?" The officer said, "It did." The prosecutor then asked, "Did you find [Laura] to be credible?" The officer replied, "Yes." The officer explained that he believed Laura because "[h]er story was consistent" each time he asked her to recount it.

¶11 Later, the officer testified about his interactions with Bishop-Garcia that same morning. The prosecutor asked, "What were some of the factors that went into your determination to arrest the defendant?" The officer responded, "[T]he credibility that I felt with [Laura's] statement being a consistent statement, not changing.

The inconsistencies in [Bishop-Garcia's] statement[s] ...."

¶12 At no point did defense counsel object to the foregoing portions of testimony.

¶13 During closing arguments, the prosecutor framed the case as "a he-said, she-said case ... [b]ecause there were only two people in the house and there were only two people that were there witnessing [the] conduct." Near the end of rebuttal closing argument, the prosecutor said,

[Laura] was telling a true story. [The owner] believed her and the [officer] believed her .... It doesn't matter if they believed her; it matters if you believed her. But the fact that they believed her and the fact that they testified that she was so emotional, that should lead you to consider, do you agree with ... their assessment or do you not?

¶14 The jury found Bishop-Garcia guilty on both counts. Bishop-Garcia now appeals.


¶15 Bishop-Garcia contends that trial counsel rendered constitutionally ineffective assistance by failing to object when the prosecution's witnesses offered opinions about Laura's and Bishop-Garcia's truthfulness on the morning of the alleged crimes. "We evaluate this as a question of law because it is raised for the first time on appeal with no lower court ruling to review." State v. Bozarth , 2021 UT App 117, ¶ 20, 501 P.3d 116 (cleaned up).


¶16 "To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) ‘that counsel's performance was deficient,’ and (2) ‘that the deficient performance prejudiced the defense.’ " State v. Calvert , 2017 UT App 212, ¶ 21, 407 P.3d 1098 (quoting Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). We assess whether Bishop-Garcia received ineffective assistance within this framework.

I. Deficient Performance

¶17 To establish deficient performance, defendants "must show that trial counsel's ‘representation fell below an objective standard of reasonableness’ when measured against prevailing professional norms." Honie v. State , 2014 UT 19, ¶ 32, 342 P.3d 182 (quoting Strickland , 466 U.S. at 687–88, 104 S.Ct. 2052 ). Defendants must "overcome the presumption that ... the challenged action might be considered sound trial strategy." Strickland , 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (cleaned up). Even if there was no strategic reason for forgoing an objection, we must consider whether "correcting the [purported] error was sufficiently important under the circumstances that failure to do so was objectively unreasonable—i.e., a battle that competent counsel would have fought." State v. Ray , 2020 UT 12, ¶ 32, 469 P.3d 871.

¶18 When analyzing deficient performance, we often begin by determining whether an error occurred that counsel failed to correct. See State v. Makaya , 2020 UT App 152, ¶ 9, 476 P.3d 1025 ("[T]he failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance." (cleaned up)). Accordingly, here, we begin by assessing whether Bishop-Garcia has identified instances of inadmissible testimony to which counsel could have properly objected. Because we conclude that an objection was merited in each instance, we next determine whether doing so was "a battle that competent counsel would have fought." See Ray , 2020 UT 12, ¶ 32, 469 P.3d 871. Given that the challenged testimony concerns the central issue in this case, we conclude that it was objectively unreasonable for counsel not to object.

A. The Prosecution's Evidence Was Objectionable.

¶19 Bishop-Garcia identifies three instances of testimony he argues were inadmissible under rule 608(a) of the Utah Rules of Evidence : (1) the owner's statement that he believed Laura's story, (2) the officer's statement that he found Laura credible, and (3) the officer's explanation for why he decided to arrest Bishop-Garcia.2 We agree that the prosecution elicited inadmissible testimony in each of the three instances.

¶20 Under rule 608(a), "[a] witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness." Utah R. Evid. 608(a). The rule "permits testimony concerning a witness's general character or reputation for truthfulness or untruthfulness," State v. King , 2010 UT App 396, ¶ 44, 248 P.3d 984, but "bars direct testimony regarding the truthfulness of a witness on a particular occasion," State v. Adams , 2000 UT 42, ¶ 14, 5 P.3d 642 (cleaned up). This ensures that credibility determinations remain "the exclusive province of the jury." See State v. Lewis , 2020 UT App 132...

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2 cases
  • State v. Phillips
    • United States
    • Utah Court of Appeals
    • June 24, 2022
    ...was deficient, and (2) that the deficient performance prejudiced the defense." Provo City v. Bishop-Garcia , 2022 UT App 16, ¶ 16, 505 P.3d 81 (cleaned up). Counsel's performance is deficient if, "considering all the circumstances, counsel's acts or omissions were objectively unreasonable."......
  • Miller v. Dasilva
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    • Utah Court of Appeals
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