State v. Welsh , 2022 UT App 112 ( 2022 )

2022 UT App 112THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
HARLEY GREGORY WELSH,
Appellant.
Amended Opinion 1
No. 20190833-CA
Filed August 29, 2022
Third District Court, Salt Lake Department
The Honorable Adam T. Mow
No. 181902848
Robert T. Denny, Attorney for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN FORSTER and JUSTICE DIANA
HAGEN concurred. 2
1. This Amended Opinion replaces the Opinion that was issued in
case 20190833-CA issued on August 11, 2022. What was
previously marked as footnote 6 (and which is now footnote 7)
has been revised in response to Welsh’s petition for rehearing.
2. Justice Diana Hagen began her work on this case as a member
of the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).
State v. Welsh
TENNEY, Judge:
¶1 Harley Welsh broke into his ex-girlfriend’s (Victim)
apartment, kicked down her bathroom door, and dragged her out
of the room by her ankles. Victim’s roommate (Roommate)
personally witnessed these events. A few hours later, Victim
made several incriminating statements about Welsh while at a
hospital emergency room. And a few hours after that, Victim
showed a police officer several texts that Welsh had allegedly sent
her that night that contained incriminating information.
¶2 A jury later convicted Welsh of several crimes stemming
from his attack on Victim. On appeal, Welsh argues that the
district court should not have admitted either the text messages
or the statements that Victim made at the hospital. For the reasons
set forth below, we affirm.
BACKGROUND 3
Welsh Breaks into Victim’s Apartment
¶3 On a late afternoon in October 2017, Roommate was at the
apartment she shared with Victim when she heard somebody
walk loudly past her bedroom window. She then heard “banging”
on her front door, so she went to the door and asked who it was.
The person banging did not respond, even after Roommate
“asked 4 or 5 times.” A man on the other side of the door finally
said, “Does it matter who it is?” Roommate responded, “Yes,
because I’m not going to open the door unless you tell me who it
is.” The man said that he was “Harley.” Roommate knew that
Victim had dated a man named Harley Welsh, but she told the
3. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v.
Maese, 2010 UT App 106, n.2, 236 P.3d 155.
20190833-CA 2 2022 UT App 112State v. Welsh
man at the door that Victim wasn’t there so that he would go
away.
¶4 The man didn’t say anything in response. Instead, he
smashed through the door, which “exploded inward” and
“knocked” Roommate to the floor. Harley Welsh then entered the
apartment.
¶5 Welsh was wearing gloves and had a tire iron in his hand.
He seemed “pissed off” and “[v]ery angry,” and he asked
Roommate, “Where the fuck is [Victim]?” Roommate again told
him that Victim wasn’t there.
¶6 But Victim was in the apartment, and after hearing the
initial commotion, she had tried hiding in the bathroom by
turning out the light and shutting the door most of the way. When
Welsh began walking through the apartment, Victim pushed the
door shut. Welsh realized that somebody was in the bathroom, so
he “kicked the door” down.
¶7 Welsh then dragged Victim out of the bathroom by her
ankles. As he did, Victim was “[k]icking and screaming,” telling
Welsh, “I’m not going with you.” Welsh replied, “We’re leaving.”
When Victim implored him to “[c]alm down or somebody’s going
to call the cops,” Welsh responded, “That’s okay. Let them call the
cops because they’ll just show up to two bloody corpses.”
¶8 Welsh took a piece of cord from the living room, cut it up
with his pocketknife, and asked Victim “if she wanted him to tie
her up.” Victim said that she didn’t want him to tie her up and
reiterated “that she wasn’t leaving with him.” Welsh then
“attempted to tie her ankles,” and while he did, Victim told him,
“No. Stop. You’re hurting me.”
¶9 Roommate witnessed all this from the floor where she had
been lying since Welsh broke in. Roommate later testified that she
thought Welsh was “going to smash [her] brains with a tire iron”
20190833-CA 3 2022 UT App 112State v. Welsh
and that she was “going to die.” She also explained that she made
no attempts to protect Victim because she was afraid. Instead, as
Welsh and Victim continued to struggle, Roommate crawled to
her bedroom. Once there, she heard Welsh and Victim continue
to argue. Somewhere between fifteen to thirty minutes later, the
apartment fell silent, and Roommate could tell that Welsh and
Victim were now gone. At that point, Roommate felt “sick” and
“freaked out.” But she didn’t call 911 because she was still afraid.
Victim and Welsh Arrive at the Emergency Room
¶10 Around 5:30 that evening, Victim arrived at the emergency
room of a nearby hospital and was treated by an emergency
physician (Doctor). A man was with Victim, and Doctor later
identified that man as Welsh.
¶11 Victim’s medical chart indicated that she “registered to be
seen for an ATV accident.” But Doctor thought that “her
appearance and demeanor seemed different than . . . would [be]
expected from someone that had recently been in an accident.” In
particular, Doctor thought that Victim “seemed frightened” of
Welsh, who was still “in the room with her.” The nurse (Nurse)
who was helping Victim also thought that Victim “seemed scared
and anxious.”
¶12 After initially giving “haltered and stuttered” answers to
Doctor’s questions, Victim “declar[ed] that [Welsh] was not
allowed to be there and that he needed to get out of the room.”
When hospital staff asked Welsh to leave, however, Welsh was
“resistant and stayed seated. It required a repeated effort of verbal
indication that he should leave the room.”
¶13 Welsh eventually left the room, after which Nurse took
Victim to a different room to “do a more proper examination.” But
while Nurse and Victim were in the new room, they found Welsh
“hiding behind the door and behind the curtain.” When Victim
saw him, she screamed and ran across the emergency department
20190833-CA 4 2022 UT App 112State v. Welsh
into another room. Welsh “claimed that he had every right to be
in the room and that he didn’t have to leave.” The staff “got
security involved” to get Welsh “out of the room,” and Nurse
went to find Victim. Nurse found Victim hiding in an empty
room. Victim “seemed scared” and “said she didn’t want [Welsh]
anywhere near her.” Nurse then took Victim to a new room and
registered her under a pseudonym.
¶14 Victim spoke with Doctor again in the new room, and she
was now “more open in her response[s]” to his questions. She told
him that she was there because Welsh “had been harming her,”
not because of an ATV accident. When Doctor asked for
clarification, Victim “indicated that he had harmed her, grasping
her by the throat and shaking her.” Victim also said, “[he] got
ahold of me again” and “he had kidnapped me.” 4
¶15 After examining Victim, Doctor concluded that she “hadn’t
sustained a serious injury” and that there wasn’t “any marking or
bruising, signs of any fractures, or significant injuries at the time.”
Based on Victim’s claims and Welsh’s “demeanor,” however,
Doctor diagnosed Victim with “domestic abuse of adult” and
“post traumatic stress disorder.”
Welsh Returns to the Apartment
¶16 Sometime later that night, Welsh went back to Victim’s
apartment. He told Roommate that he was there to get Victim’s
clothing, but Roommate “told him he couldn’t have it and that he
wasn’t welcome in [her] house.” Welsh then asked Roommate
“whose stuff was in the living room.” Roommate responded that
4. There was some discrepancy in the testimony at trial about
whether Welsh left before or after the conversation between
Victim and Doctor described above. Regardless, Doctor and
Nurse agreed that Welsh was in and out of various rooms in the
hospital and that Welsh left only after security became involved.
20190833-CA 5 2022 UT App 112State v. Welsh
the stuff belonged to Victim’s brother (Brother), who also lived in
the apartment.
¶17 After Welsh left, Brother arrived and noticed the front door
was kicked in. Roommate “was in hysterics, freaking out, crying,”
and she kept saying to Brother, “He took your sister. He took your
sister.” Brother “immediately” knew that Roommate was talking
about Welsh. When Brother walked through the apartment, he
saw that the bathroom was “ransacked” and that the bathroom
door was “broken completely off the hinges.” To Brother, the
apartment looked “terrorized” and like “a mess.”
¶18 Brother called 911, and as he was talking to the emergency
operator, he went out to the apartment’s balcony. While there, he
saw “Welsh not even 30 yards away.” Brother and Welsh locked
eyes as the police came “around the corner,” at which point Welsh
“proceeded to take off.”
Investigation and Text Messages
¶19 One of the responding officers (Officer) took photographs
of what he found in the apartment. These included photographs
of the splintered front door frame; the front door’s strike plate,
which was lying on the floor; the bathroom door, which was
broken off its hinges; a cut-up cord on the living room floor; and
a black glove lying near the cut-up cord, which Roommate later
identified as one of the gloves that Welsh was wearing when he
broke into the apartment.
¶20 After photographing the scene, Officer spoke with Victim
on the phone. At this point, Victim had left the hospital and was
now at a friend’s apartment. Later that night, Officer went and
interviewed Victim in person. When he met her, Officer thought
that Victim seemed “scared and paranoid.” Officer also noticed
some redness on Victim’s neck and an injury on one of her hands.
Although these injuries “were not overwhelming,” they
“appear[ed] to be fresh,” so Officer photographed them.
20190833-CA 6 2022 UT App 112State v. Welsh
¶21 During the interview, Victim showed Officer a series of text
messages on her phone. They were sent from someone who was
identified as “Harleyy” in her contacts, and there was a phone
number linked to that contact. A timestamp indicated that Victim
had received the first text at 9:08 p.m. that night, and one of the
later texts had a timestamp of 9:20 p.m. Officer took photographs
of those texts, and he later testified that he took the photographs
at 9:27 p.m.
¶22 Those text messages, without alteration, read as follows:
• “So you reported me to the police now? And now there
looking for me.”
• “Am I right”
• “Liar your brother isn’t in orem”
• “DID U CALL THE COPS AND REPORT ME? YES OR
NO?”
• “WHEN WE BOTH AGREE ON THINGS AND GET
BACK TO LIVING A REAL LIFE”
• “I DO TRULY LOVE YOU AND I JUST WANTED MY
WIFE AND NOW THIS AGAIN. I JUST WANTED YOU
TO HOLD ME TIGHTLY AND SAY THINGS WILL GET
BETTER”
• “I KNOW YOU WERE HOME AND THE COPS WERE
THERE LOOKING. SO DID YOU FILE CHARGES ON ME
AND WHAT KIND DID YOU PRESS AGAINST ME? IF
YOUR RE”
• “PORTING THESE THEN THAT’S GOOD YOU GROW A
BIGGER PAIR. AND THAT’S WHY I TRULY LOVE YOU.”
20190833-CA 7 2022 UT App 112State v. Welsh
• “Yes or No”
• “Just ignore me like you’ve done our whole relationship.”
• “to put your hands on me and lie to the cops about me
doing whatever your herion high conjured up.”
• “So stop hiding from the fact that you caused all this due
to. Yes your herion addiction. So dont say its all me. And
Im sorry you had”
• “And just so it states that you initiated all that you have
said against me and your judgment is impaired all day and
evening”
¶23 After Victim showed Officer these messages, Officer
searched for Welsh’s name in the police department’s database. In
that database, Officer found a file on Welsh that included a contact
phone number. That phone number matched the phone number
that had sent the text messages to Victim’s phone.
Trial
¶24 The State charged Welsh with aggravated kidnapping;
aggravated burglary; violation of a sentencing protective order;
retaliation against a witness, victim, or informant; criminal
mischief; and assault.
¶25 The case later went to trial, and the State called Roommate,
Brother, Officer, Nurse, and Doctor as witnesses. The witnesses
testified about the events as described above. Victim did not
testify.
¶26 The district court made two evidentiary rulings that are
central to this appeal. The first concerned the text messages that
Welsh allegedly sent Victim after the attack. Before trial, the
prosecutor filed a motion in limine asking to admit Officer’s
20190833-CA 8 2022 UT App 112State v. Welsh
photographs of those messages. The prosecutor argued that
although Victim would not testify, Officer could authenticate the
messages by testifying that he took the photographs and
describing the surrounding circumstances. In response, Welsh’s
trial counsel (Trial Counsel) argued that Officer could not
authenticate the texts because his knowledge of the messages was
based on hearsay from Victim.
¶27 The court deferred ruling on this issue until it could hear
Officer’s testimony. At trial, Officer explained how he matched
the phone number for the “Harleyy” contact on Victim’s phone to
the phone number listed for Welsh in the police database. At that
point, the court allowed Trial Counsel to voir dire Officer. During
voir dire, Officer explained that “[a]ll officers” in his department
have access to the database and can “edit things and remove
things.” Trial Counsel then argued to the court that the text
messages could not “be authenticated under the rules of
evidence” because “there is no keeper of the records.”
¶28 The court overruled Trial Counsel’s authentication
objection, and it did so based on Officer’s testimony about “how
he had linked the number on the text message[s] with Mr. Welsh.”
Based on this authentication, the court then admitted the
messages over the hearsay objection, concluding that they
qualified as “a statement of the opposing party.” See Utah R. Evid.
901; see also id. R. 801(d)(2).
¶29 The second ruling concerned the admissibility of the
statements that Victim made to Doctor while at the emergency
room. Before trial, the prosecutor moved to admit those
statements. Trial Counsel then conceded that Victim’s statements
that Welsh “grabbed her by the neck” and “shook her” were
admissible, but Trial Counsel objected to admission of the
statements that “[he] got ahold of me again” and “he had
kidnapped me.” In response, the prosecutor argued that these
statements were admissible through the medical diagnosis or
treatment exception to the rule against hearsay. See id. R. 803(4).
20190833-CA 9 2022 UT App 112State v. Welsh
¶30 The court ruled that both statements were admissible
under this exception. With respect to the statement that “[he] got
ahold of me again,” the court ruled that this “seem[ed] to relate to
the later report from [Victim] that she was grabbed by the neck
and shook.” And with respect to the statement that “he had
kidnapped me,” the court ruled that this fit the exception because
it gave “context to how the other injuries were perhaps sustained
and that there may have been some violent action in the process
of kidnapping that would help to explain the nature of those
injuries or illnesses.”
¶31 At the close of trial, the jury acquitted Welsh of aggravated
kidnapping, but it found him guilty on all other charges. After the
court sentenced Welsh to prison terms for the offenses, Welsh
timely appealed.
ISSUES AND STANDARDS OF REVIEW
¶32 Welsh raises two issues on appeal.
¶33 First, Welsh challenges the district court’s determination
that there was sufficient evidence to authenticate the text
messages that he allegedly sent to Victim. We review this
determination for an abuse of discretion. See State v. Otkovic, 2014
UT App 58, ¶ 12, 322 P.3d 746.
¶34 Second, Welsh challenges the court’s decision to admit
statements that Victim made to Doctor under the medical
diagnosis exception to the hearsay rule. “When reviewing rulings
on hearsay evidence, we review legal questions regarding
admissibility for correctness, questions of fact for clear error, and
the trial court’s final ruling on admissibility for abuse of
discretion.” State v. Guzman, 2018 UT App 93, ¶ 10, 427 P.3d 401.
20190833-CA 10 2022 UT App 112State v. Welsh
ANALYSIS
I. Authentication of the Text Messages
¶35 The district court determined that the State had sufficiently
authenticated the text messages that Welsh allegedly sent to
Victim on the night of the attack. Welsh now argues that this
authentication determination was an abuse of discretion. We
disagree. 5
¶36 The proponent of “writings or other documentary
evidence” must authenticate the evidence before it can be
admitted. State v. Jacques, 924 P.2d 898, 900–01 (Utah Ct. App.
1996). “To satisfy the requirement of authenticating or identifying
an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent
claims it is.” Utah R. Evid. 901(a). Notably, “proper authentication
does not require conclusive proof,” State v. Wager, 2016 UT App
97, ¶ 12, 372 P.3d 91 (quotation simplified), and the proponent has
to make only “a prima facie showing of authenticity,” State v.
Otkovic, 2014 UT App 58, ¶ 23, 322 P.3d 746.
¶37 The “process of authentication must be distinguished from
a finding of authenticity.” Jacques, 924 P.2d at 901. The district
court is responsible for the “process of authentication,” whereby
it “assess[es] whether there is evidence sufficient to support a jury
finding of authenticity.” Id. (quotation simplified). But “the jury is
ultimately responsible for determining whether the evidence is in
fact authentic once the evidence is admitted.” Id.¶38 Rule 901 of the Utah Rules of Evidence provides a non-
exhaustive list of “examples” of the kinds of evidence that can
5. Based on the authentication ruling at issue, the district court
admitted the texts as nonhearsay statements under rule 801(d)(2)
of the Utah Rules of Evidence. Welsh does not separately
challenge the application of that rule to these text messages.
20190833-CA 11 2022 UT App 112State v. Welsh
“satisf[y]” the authenticity requirement. See Utah R. Evid. 901(b).
This list includes “[t]estimony that an item is what it is claimed to
be.” Id. R. 901(b)(1). It also includes the “appearance, contents,
substance, internal patterns, or other distinctive characteristics of
the item, taken together with all the circumstances.” Id. R.
901(b)(4).
¶39 Our decision in Otkovic is illustrative. There, we affirmed a
district court’s determination that the State had presented
sufficient evidence to support a finding that certain text messages
were sent by the defendant. Otkovic, 2014 UT App 58, ¶¶ 21–23.
This included evidence showing that the texts in question “were
sent from the phone number assigned to” a phone found in the
defendant’s apartment, that this same phone matched a witness’s
“description of the phone he saw” the defendant use during the
crime, and that the crime “occurred during the same time frame
when the text messages were sent.” Id. ¶ 23. While acknowledging
that there was some contrary evidence suggesting that somebody
else had used the phone during the relevant time, we nevertheless
determined that the contrary evidence went “to the weight of the
evidence, not its admissibility.” Id. We accordingly held that the
district “court did not exceed its discretion in determining that the
evidence was sufficient to authenticate the text messages.” Id.
¶40 Here, Officer testified that the photographs of the texts
accurately represented the texts that he saw on Victim’s phone.
See Utah R. Evid. 901(b)(1). Welsh does not challenge that
assertion on appeal. Rather, Welsh contends that the “appearance,
contents, substance, internal patterns, or other distinctive
characteristics” of those texts, “taken together with all the
circumstances,” were insufficient to show that he was the one who
authored the texts. See id. R. 901(b)(4).
¶41 We disagree. Contrary to Welsh’s assertion, the State did
present several pieces of evidence that, when combined, were
sufficient to support a finding that Welsh authored the texts.
20190833-CA 12 2022 UT App 112State v. Welsh
¶42 First, Roommate testified that Victim had previously dated
Welsh, and Officer testified that these text messages were received
by Victim on her phone and came from a person who was labeled
in her contacts as “Harleyy” (which is, of course, Welsh’s first
name with an extra “y”). 6
¶43 Second, the phone number that sent the texts was listed as
“one of [Welsh’s] contact phone numbers” in a police database. 7
6. Welsh argues that Victim’s statement to Officer that the phone
was hers was inadmissible hearsay. As the State correctly points
out, however, this argument is unpreserved. While Welsh pointed
to several places below where he argued that Officer didn’t have
personal knowledge that Welsh sent the text messages, he points
to no place in the record (and we see none) where he separately
argued that Officer could not testify that Victim told him that the
phone was hers. Because of this, the argument is unpreserved.
And because Welsh does not argue that a preservation exception
applies, we do not address this argument. See State v. Johnson, 2017
UT 76, ¶ 15, 416 P.3d 443.
7. In his opening brief, Welsh asserts that Officer’s “testimony
that he matched the number on the phone with a Murray City
Database is based on double-hearsay not subject to any
exception.” But Welsh never identifies the two steps involved in
the alleged double hearsay, nor does he provide us with any
argument or developed authority supporting his view that this
was double hearsay. As a result, any argument that turns on
double hearsay is inadequately briefed, and we accordingly
decline to address it. See Utah R. App. P. 24(a)(8); State v.
Drommond, 2020 UT 50, ¶ 134, 469 P.3d 1056. We reach the same
result even if his argument is construed as a single hearsay
argument. In the relevant passage from Welsh’s opening brief,
Welsh capably briefed an argument about why, in his view, the
texts were not supported by enough corroborating information to
(continued…)
20190833-CA 13 2022 UT App 112State v. Welsh
¶44 Third, the timing and content of the messages supported a
finding that Welsh sent them. As noted, Welsh and Victim had
previously had a romantic relationship, but their relationship had
since ended. Then, just a few hours before these texts were sent,
Welsh broke into Victim’s apartment and tried to tie her up. And
later that evening, after Welsh was separated from Victim at the
hospital, Brother saw Welsh standing outside Victim’s apartment,
at which point Welsh “[took] off” when police came “around the
corner.”
¶45 The texts sent by “Harleyy” to Victim tracked these events.
In those messages, the sender expressed his love for Victim and
referred to “our whole relationship.” The sender accused Victim
of reporting him to police and claimed to know that “the cops”
were now at her home “looking” for him. And the sender also
called Victim a “[l]iar” because her “brother” wasn’t in Orem. The
texts thus communicated information that was particular to both
Victim’s relationship with Welsh and to things that had happened
that evening involving Welsh. These corroborative circumstances
supported a finding that Welsh had sent the texts.
¶46 Welsh nevertheless advances two main arguments for why
the texts should not have been admitted. First, he argues that the
court erred in admitting the texts because “the State did not have
any witness with personal knowledge who could corroborate that
have been properly authenticated. Amidst that argument, Welsh
included a paragraph about the purported unreliability of the
police database; and in the middle of that paragraph, Welsh made
a single-sentence assertion that, “without more, the information
contained within this database is inadmissible hearsay.” This
sentence was supported by a single citation that directed us to
rules 801 and 803 of the Utah Rules of Evidence. But Welsh
provided no further argument or explanation about why the
information within the database was hearsay to begin with, nor
did he support such an argument with developed authority. We
therefore decline to address it.
20190833-CA 14 2022 UT App 112State v. Welsh
the text messages were sent from Welsh’s number or that he was
in possession of the phone associated with that number when they
were sent.” But as noted, personal knowledge is not the only way
to authenticate evidence. See Utah R. Evid. 901(b). Instead, the rule
itself lists the “appearance, contents, substance, internal patterns,
or other distinctive characteristics” of an item as a separate means
of authentication. Id. R. 901(b)(4).
¶47 Second, Welsh points to several potential deficiencies in
the evidence. For example, he notes that while Officer
photographed the texts, Officer did not have personal knowledge
that Welsh was the sender. Welsh suggests that although the
sender was “concerned about being reported to the police,” there
could have been other people associated with Victim who were
worried about being reported to police. Welsh points out that the
sender referred to Victim as “my wife,” even though there was no
evidence presented at trial that Victim and Welsh were ever
married. He also points out that there was no evidence “in the
record indicating that Brother had any connection to Orem or that
[Victim] had told Welsh her brother was in Orem.” And finally,
Welsh contends that “it is impossible to know whether [the texts]
were altered in any way or whether any messages were deleted”
before Officer saw them.
¶48 These are all fair arguments, but they ultimately go “to the
weight of the evidence, not its admissibility.” Otkovic, 2014 UT
App 58, ¶ 23. While a jury could have accepted them and
concluded that the texts were not “in fact authentic,” Wager, 2016
UT App 97, ¶ 12 (quotation simplified), the jury also could have
accepted the State-favorable evidence recounted above and
concluded that Welsh did send them.
¶49 What ultimately matters in this appeal is the question that
was before the district court—the authentication of the text
messages. Again, the court was responsible for the initial “process
of authentication,” whereby it was tasked with determining
“whether there [was] evidence sufficient to support a jury finding
20190833-CA 15 2022 UT App 112State v. Welsh
of authenticity.” Jacques, 924 P.2d at 901 (quotation simplified). On
that, we agree with the court that the State presented “evidence
sufficient to support a finding that” the text messages were sent
by Welsh. See Utah R. Evid. 901(a). The court therefore did not
abuse its discretion when it determined that the texts were
properly authenticated.
II. Hearsay
¶50 Over Trial Counsel’s objection, the district court allowed
Doctor to repeat two of Victim’s statements: “[he] got hold of me
again” and “he had kidnapped me.” The court agreed that the
statements were hearsay, but it nevertheless admitted them under
the exception for statements made for medical diagnosis or
treatment. See Utah R. Evid. 803(4).
¶51 Welsh now challenges this ruling, arguing that the
statements did not qualify under this exception because Victim
did not make them “with an intent to facilitate medical diagnosis
or treatment.” But to obtain reversal, Welsh must show that he
was prejudiced. See Utah R. Crim. P. 30(a). This requires a
determination that, “absent the error, there was a reasonable
likelihood of a result more favorable to the accused.” State v. Bell,
770 P.2d 100, 106 (Utah 1988). Here, we need not decide whether
the statements at issue qualified under the hearsay exception in
question because we conclude that any error in admitting them
was harmless. See, e.g., State v. Clark, 2016 UT App 120, ¶ 15, 376
P.3d 1089.
¶52 A prejudice analysis like this one “is counterfactual.” State
v. Ellis, 2018 UT 2, ¶ 42, 417 P.3d 86. “To decide whether a trial
affected by [alleged] error is reasonably likely to have turned out
differently we have to consider a hypothetical—an alternative
universe in which the trial went off without the [alleged] error.”
Id. The counterfactual analysis in this case thus requires us to
consider what Welsh’s trial would have looked like if Doctor had
not testified that Victim told him that Welsh “got hold of me
20190833-CA 16 2022 UT App 112State v. Welsh
again” and “had kidnapped me.” We conclude that, even without
those statements, there’s no reasonable likelihood that there
would have been a result more favorable to Welsh.
¶53 First, the jury would have still heard Roommate’s firsthand
account of what she saw when Welsh broke into the apartment.
Again, Roommate testified that Welsh broke through the front
door with sufficient force to knock her over and that he then
entered with a tire iron in his gloved hand. She testified that
Welsh walked through the apartment looking for Victim, and that
when Welsh realized that Victim was hiding in the bathroom, he
broke that door down too. She testified that she saw Welsh drag
Victim out of the bathroom “[b]y her ankles” while Victim was
“[k]icking and screaming.” She testified that she saw Welsh cut
up a cord and try to tie Victim’s ankles, and she further testified
that she heard Welsh say that if police were called, they would
“show up to two bloody corpses.”
¶54 Second, the jury would have still seen Officer’s
photographs of the apartment. Of note, these photographs
showed the apartment’s two broken doors, a cut-up cord, and a
black glove, thus corroborating significant details from
Roommate’s account.
¶55 Third, the jury would also have still heard Nurse’s and
Doctor’s descriptions of Victim’s demeanor at the hospital,
including their observations that Victim seemed “scared,”
“frightened,” and “anxious.” The jury would have heard that after
Victim arrived at the emergency room, Victim “declar[ed]” that
Welsh needed to leave. Nurse would have still testified that Welsh
initially resisted leaving and that after Victim was moved to
another room, they found Welsh hiding behind a curtain. Nurse
would have still testified that Victim “screamed” when she saw
Welsh and that security had to get Welsh “out of the room.” The
jury would have also heard how Victim was checked into a new
room under a false name and that Victim “indicated that [Welsh]
20190833-CA 17 2022 UT App 112State v. Welsh
had harmed her, grasping her by the throat and shaking her.” 8
And the jury would have known that Doctor diagnosed Victim
with “domestic abuse of adult” and “post traumatic stress
disorder.”
¶56 Fourth, the jury would have still heard Brother’s testimony
that when he arrived at the apartment later that night, Roommate
was “in hysterics.” And it would have heard Brother’s testimony
that he saw Welsh standing outside the apartment and “take off”
when police came “around the corner.”
¶57 Fifth, the jury would have still seen the photographs that
Officer took of Victim’s injuries.
¶58 And sixth, the jury would have still seen the text messages
that Victim received from “Harleyy.” As explained above, the
State presented evidence sufficient to support a finding that those
texts were sent by Welsh. And as also explained, those texts
communicated information that was particular to both Victim’s
relationship with Welsh and to things that had happened that
evening involving Welsh, and they further expressed concern
from the sender about criminal charges. 9
¶59 In a hypothetical trial in which the State was not permitted
to use the challenged statements, all this evidence would still have
been before the jury. Given the strength of this evidence, we see
no reasonable likelihood that there would have been a more
8. Trial Counsel conceded that this particular statement was
admissible under rule 803(4) of the Utah Rules of Evidence.
9. We’ve concluded that the texts were properly authenticated, so
we’ve included them in this prejudice analysis. Even if there were
some error in admitting the texts, however, we would still readily
conclude that Welsh was not prejudiced by either their admission
or the admission of the alleged hearsay because of the strength of
the other evidence recounted in this opinion.
20190833-CA 18 2022 UT App 112State v. Welsh
favorable result for Welsh had the jury not heard the challenged
statements.
¶60 Welsh nevertheless responds on several fronts. First, he
argues that the statement “he had kidnapped me” was
particularly problematic given the criminal connotations
associated with the term “kidnap.” But he suffered no prejudice
as a result of this accusation because the jury acquitted Welsh of
the aggravated kidnapping charge. Even so, Welsh nonetheless
argues that there is at least a “reasonable likelihood” that Victim’s
“colloquial use of the phrase ‘kidnap’ . . . prompted the jury to
convict Welsh on the other charges.” But given the strength of the
other evidence, we still see no reasonable probability that the jury
would have reached a different result on those charges without
this statement.
¶61 Welsh also argues that “the statement that Welsh ‘got
ahold of [her] again,’ is vague and ambiguous” and that “there is
a reasonable likelihood the jury inferred that similar incidents had
occurred in the past.” But the contention that Victim’s statement
was “vague and ambiguous” cuts both ways—if the jury was
indeed uncertain about what this meant, it seems just as likely that
the jury would have assigned little weight to that statement.
¶62 Welsh further contends that Victim’s statements made
Roommate’s story more believable and that there is a “reasonable
likelihood” that the jury would not have believed Roommate’s
account without these statements. In support, Welsh points to
alleged problems with Roommate’s testimony. For example, he
points out that the prosecutor referred to Roommate as “not a
superwoman” and “not a great speaker.” But regardless of
whether Roommate was or was not a great speaker, she was a
firsthand witness of the attack, and because Roommate testified
at trial, the jury was in an advantaged position to directly evaluate
her credibility. Moreover, Victim’s statements to Doctor would
not have been the most natural source of corroboration for
Roommate’s testimony anyway. Rather, Officer’s photographs of
20190833-CA 19 2022 UT App 112State v. Welsh
what he found at the apartment and Brother’s testimony about the
same scene were direct corroboration for many of her claims.
Because of this, we don’t see any probability that the perceived
veracity of Roommate’s account hinged on the statements that
Victim later made at the hospital.
¶63 In short, even without the challenged statements, the jury
would have heard a firsthand account of Welsh breaking into the
apartment, dragging Victim out of the bathroom by her ankles,
and attempting to tie her up, and it would have seen photographs
corroborating that account. The jury would have heard how
Victim showed up at a hospital a few hours later, scared and
nervous, and also how Victim had to be hidden from Welsh at the
hospital after he tried following her. And it would also have seen
texts that she received from a person that seemed to be Welsh and
that seemed to line up with the very events in question. In light of
all this, we see no “reasonable likelihood” that Welsh would have
received a different result without the challenged statements. Bell,
770 P.2d at 106. We therefore conclude that Welsh was not
prejudiced by any error in admitting them. 10
CONCLUSION
¶64 The district court did not abuse its discretion when it
determined that the State presented sufficient evidence to support
a finding that Welsh authored the text messages. Welsh also has
not shown that he was prejudiced by the admission of Victim’s
challenged statements. We accordingly affirm his convictions.
10. Welsh also raised a cumulative error argument. Because there
are not errors to accumulate, this doctrine is inapplicable. See State
v. Gonzales, 2005 UT 72, ¶ 74, 125 P.3d 878.
20190833-CA 20 2022 UT App 112