State v. Tippets

2021 UT App 137

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TREVOR TIPPETS,
Appellant.

Amended Opinion*
No. 20190062-CA
Filed December 9, 2021

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 161900279

Brett J. Delporto, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGE GREGORY K. ORME and SENIOR JUDGE KATE APPLEBY
concurred. 1

* This Amended Opinion replaces the Opinion in Case No.
20190062-CA issued on July 15, 2021. After our opinion issued,
the Appellee filed a petition for rehearing, and we called for a
response. We grant the petition for the purpose of correcting
Part III to reflect that the touching variant of the sexual abuse of
a child statute does not require skin-to-skin contact.

1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
 State v. Tippets

HAGEN, Judge:

¶1 Trevor Tippets was convicted of two counts of aggravated
sexual abuse of a child based on two incidents involving his
stepdaughter. Tippets subsequently filed a motion for a new
trial, contending that his counsel had been ineffective in several
ways. The district court denied that motion, entering findings of
fact and conclusions of law on each of Tippets’s claims. Tippets
renews three of those contentions on appeal and argues that the
cumulative effect of defense counsel’s errors merits a new trial.
Because we conclude that counsel’s performance was not
deficient, we affirm Tippets’s convictions.

BACKGROUND 2

The First and Second Incidents

¶2 Tippets’s convictions arise from two incidents involving
his stepdaughter (the victim) that occurred about one year apart.
In the first incident, the victim, who was eleven years old, was
sleeping on the floor in her room when “Tippets came into [her]
bedroom and laid next to [her] on the floor.” He first put his
hand down her pants and touched her vagina under her
clothing. She testified that she then heard a sound she would
never forget—“the sound of him unzipping the zip of his pants.”
Tippets then “pulled out his penis,” grabbed the victim’s hand
while she pretended to be asleep, “put his hand over [hers] and
. . . started stroking his penis with [her] hand using [his] hand as
the guide.” This lasted for five to ten minutes. The victim tried to
squirm and pull her hand away, but Tippets “grabbed [her]
hand again and put it right back on to his penis.” This touch was

2. “We recite the facts from the record in the light most favorable
to the jury’s verdict and present conflicting evidence only as
necessary to understand issues raised on appeal.” Gregg v. State,
2012 UT 32, ¶ 2, 279 P.3d 396 (cleaned up).

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 State v. Tippets

skin-to-skin, and she felt his penis harden. The victim
remembered feeling “betrayed of [her] trust” and thinking,
“[H]ow could you[?]” Tippets did not say anything to the victim
on this occasion. Eventually, the victim “pretended to stretch
and wake up” and locked herself in the bathroom and stayed
there for the rest of the night.

¶3 By the time the second incident occurred, the victim had
turned twelve and had moved into a friend’s basement with
Tippets and the rest of her family. The victim explained, “Since
we moved around a lot, me and my brother had air mattresses
and we decided to build an air mattress fort out of them” against
the corner of a wall. She and her brother went to bed in the
fort—the victim against a wall and her brother against one of the
air mattresses—with space between them. About an hour after
they went to bed, Tippets came into the fort and lay behind the
victim, who was on her side with her arms crossed on her chest
“like a dead person.” Tippets lay behind her in a “spooning
position,” then put his hand over her hand on her breast, and
“invited himself to caress [her] breasts for as long as he felt [he]
needed, which was about two to five minutes.” When he
finished, Tippets moved the victim’s hair from behind her ear,
kissed her neck, and asked if she wanted to come watch a
television show that she had asked to watch earlier that day. The
victim testified that she felt especially concerned that this was
occurring with her brother right behind them because Tippets
“did not care who was around . . . he wanted to get what he
wanted.”

¶4 After eventually disclosing some details of the first
incident to her mother and disclosing both incidents to her
therapist, the victim told her story in a recorded interview with
the Children’s Justice Center (CJC). In that interview, the victim
described Tippets putting her hand on his penis during the first
incident but did not mention him putting his hand down her
pants. She then described the second incident in which Tippets
rubbed her back and then moved his hand around to the front,

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on top of her own hand across her chest, but did not describe
how he used her hands to fondle her breasts.

Charges and Testimony

¶5 After the CJC interview, the State charged Tippets with
one count of aggravated sexual abuse of a child, based on the
first incident. At Tippets’s preliminary hearing, the victim
elaborated on both incidents. First, she said that before Tippets
unzipped his pants to pull out his penis during the first incident,
he put his hand down her pants and rested it on her vagina.
Describing the second incident, she testified that when Tippets
put his hand over her hand, which was over her breast, he “was
playing with [her] chest . . . squeezing it.” After the preliminary
hearing, the State amended Tippets’s information to include a
second count of aggravated sexual abuse based on the second
incident.

¶6 The case proceeded to trial. In his opening statement,
defense counsel said the victim likely would describe the first
incident as Tippets putting his hand down her pants and resting
it on her vagina and then forcing her to touch his penis and
scrotum. On direct examination, however, the victim, who was
now sixteen years old, did not make any reference to Tippets
putting his hand down her pants or touching her vagina.
Defense counsel confronted the victim on cross examination,
asking her whether she remembered testifying at the
preliminary hearing that Tippets put his hand down her pants
during that incident. She confirmed that she did. Defense
counsel did not specifically ask the victim whether Tippets
rested his hand on her vagina, and she did not volunteer that
information on the stand.

¶7 Regarding the second incident, defense counsel’s opening
statement described the victim’s anticipated testimony as
Tippets “squeez[ing] her hand [that was covering her breast]
with his while [she was] fully clothed.” The prosecutor’s
opening statement described the second incident as Tippets

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placing his hand “on her shirt” and then “touch[ing] her
breasts,” but also predicted that the victim would testify that
Tippets’s “hand was on her breast . . . skin-to-skin.”

¶8 When the victim testified about the second incident, she
first described Tippets’s hand as “under” her bra. But after
defense counsel confronted her with her preliminary hearing
testimony, she acknowledged that her previous testimony was
correct, that her “hand was in between” his hand and her breast.
The victim testified, “All I remember was that he was touching
my breasts. With that refreshing my memory, I do remember
that my hand was in between, but it still did not feel right with
him using my hand as a barrier in between his hand and my
breasts.”

Evidence Regarding the Other Allegation

¶9 During the course of the investigation, the assigned
detective received a tip about a separate “untoward or sexual”
incident that may have occurred between Tippets and a
stepdaughter from a previous marriage. The detective did not
verify the report.

¶10 The victim’s mother testified at trial. At the end of
cross examination, defense counsel elicited the following
testimony:

Q: You have other children than [the victim],
correct?

A: Yes.

Q: Okay. Are there any allegations of [Tippets]
involving any untoward things involving the other
children?

A: Not that I’m aware of, no.

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 State v. Tippets

¶11 Before his redirect examination, the prosecutor asked for a
bench conference. He told the court that he felt the foregoing
exchange had opened the door to “allow the State to ask the
witness then if she’s aware of any type of abuse to any of his
other children on his previous marriages as well.” Defense
counsel responded that he had been “careful to confine [his
question] to her family.” The court ultimately elected to dismiss
the jury to discuss this possible evidence further. Once the jury
was excused, the court continued,

As I stated at sidebar, I understand the strategic
reason for asking those questions of this witness
[is] to impress upon the jury a notion that [Tippets]
has not abused other kids and therefore . . . would
not sexually abuse the alleged victim in this case.

So the question is whether . . . asking [the victim’s
mother] about any other allegations regarding her
children or other children opens the door for the
State to then ask [her] as a follow-up question on
redirect, “Are you aware of any other allegations of
a sexual nature related to other children in
relationship to [Tippets]?”

Defense counsel argued, “even if Your Honor does rule that
this . . . opens the door to character evidence, we ask that you
keep it out in that it is . . . highly prejudicial.” The prosecution
responded that the testimony elicited by defense counsel had
“impresse[d] upon the jury that the [the victim] is not credible
because there are no other incidents” and “boost[ed] the
credibility of [Tippets] in the eyes of the jury.”

¶12 The court then asked the prosecutor to speak with the
victim’s mother and proffer what he believed her testimony
would be. After speaking with the victim’s mother, however, the
prosecutor stated that “it turns out that she is not aware of any
other sexual allegations from [Tippets’s] prior marriages” so the

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State could not elicit that information from her. The court then
asked if the State intended to “put on any evidence of any other
abuse through any other witnesses,” to which the prosecutor
responded, “Even though the door may have been opened in
regards to some disclosures, we do not have other witnesses that
are going to be available, and frankly, we won’t be able to
overcome the hearsay objection.”

¶13 The court again expressed concern that, if there are other
allegations, the jury not be left with “an impression” that “there
are in fact no other allegations.” The prosecutor stated that he
had spoken to the detective, and the detective was aware of and
had documentation of the other allegation. The court then noted,

[T]here was no prior 404(b) motion filed. And in
fact . . . 404(c) does allow in . . . a criminal case, it
indicates that the Court may admit evidence that
the Defendant committed any other acts of child
molestation to prove propensity. . . . [W]e haven’t
had a hearing on those things because it sounds
like the State did not intend to admit that evidence.
But that doesn’t mean we couldn’t have a hearing
on those things in the middle of trial.

The court then asked, “is this going to continue to be an issue?”
Defense counsel responded, “Not as far as we’re concerned,
Your Honor.”

¶14 The court instructed the State that it could ask the
detective whether he was aware of any other allegations of
sexual abuse against Tippets, as long as the questions did not
stray into hearsay. The court asked for defense counsel’s position
on the issue, and he responded, “That sounds fair, Your Honor.
Especially in regards to not postponing the trial. . . . I don’t want
to do that. . . . To call [the other potential stepdaughter victim as
a witness].”

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 State v. Tippets

¶15 After the victim’s mother completed her testimony, the
State called the detective to the stand. At the end of his direct
examination, the State asked,

Q: Did [your work on this case] include
interviewing other people regarding the case?

A: Yes, it did.

Q: Based on your interview with other people
involved, are you aware of other allegations of
sexual abuse against the Defendant?

A: Yes.

Q: Do you know what is the relationship between
the Defendant and other people that may have
been sexually abused?

A: Yes. I’m only aware of one other incident, but
the relationship was a stepdaughter.

Q: Do you have any information as to how old the
stepdaughter was at the time?

A: The stepdaughter was 16 years old.

Defense counsel did not ask for a limiting instruction regarding
the admission of this testimony.

New Trial Motion

¶16 The jury convicted Tippets on both counts. With the
assistance of new counsel, Tippets filed a motion for a new trial,
contending that his counsel was ineffective in five ways, three of
which he raises on appeal. Relevant to this appeal, he claimed
defense counsel performed deficiently when he (1) introduced
damaging testimony from the victim, (2) inadvertently opened

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 State v. Tippets

the door to other alleged misconduct, and (3) neglected to move
for a directed verdict on count 2 relating to the second incident.

¶17 After a hearing, the district court denied the motion. The
court found that defense counsel’s “performance was above the
Strickland standard” when he introduced potentially damaging
testimony from the preliminary hearing where he “obtain[ed]
acknowledgement from the victim of her inconsistent
statement.” (Citing Strickland v. Washington, 466 U.S. 688 (1984).)
The court also found that defense counsel was not ineffective in
questioning the victim’s mother about other allegations. Even
though the question resulted in “unintended consequence(s),” it
was a legitimate “trial strategy” and counsel “was very specific
to confine his question.” Finally, the court found that defense
counsel was not deficient in failing to move for a directed verdict
on count 2 because “the Court would have denied” such a
motion and “the State did present a prima facie case for count 2
[to] go in front of the jury for a verdict.”

ISSUE AND STANDARDS OF REVIEW

¶18 On appeal, Tippets asserts three of the ineffective
assistance of counsel claims he raised in his motion for a new
trial. 3 In deciding such claims, we rely on “the United States

3. Tippets also contends that the cumulative effect of his
counsel’s errors deprived him of a fair trial. We will reverse
under the cumulative error doctrine if “(1) an error occurred, (2)
the error, standing alone, has a conceivable potential for harm,
and (3) the cumulative effect of all the potentially harmful errors
undermines [our] confidence in the outcome.” State v. Martinez-
Castellanos, 2018 UT 46, ¶ 42, 428 P.3d 1038. On the other hand, if
we determine “that either a party’s claim did not amount to an
error, or that the claim was an error but has no potential to cause
harm on its own, the claim cannot weigh in favor of reversal
(continued…)

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 State v. Tippets

Supreme Court’s decision in Strickland v. Washington,” 466 U.S.
668 (1984), and “[t]here is no reason . . . to depart from the
standard of review set out in Strickland simply because the
appeal was preceded by a motion for new trial.” State v. Templin,
805 P.2d 182, 185–86 (Utah 1990). “In a situation such as this, in
which the trial court has previously held an evidentiary hearing
on a motion based on ineffective assistance of counsel, such a
claim presents a mixed question of law and fact.” State v.
Burnside, 2016 UT App 224, ¶ 18, 387 P.3d 570 (cleaned up).
Therefore, we defer “to the trial court’s findings of fact, but
review its application of the appropriate legal principles to its
factual findings for correctness.” Id. (cleaned up).

ANALYSIS

¶19 Tippets claims that he was deprived of his Sixth
Amendment right to the effective assistance of counsel in three
ways. See U.S. Const. amend. VI (“In all criminal prosecutions,
the accused shall enjoy the right . . . to have the assistance of
counsel for his defense.”). He contends that defense counsel
performed deficiently when he (1) introduced testimony of an
additional act in his attempt to impeach the victim, (2)
inadvertently opened the door to evidence of another allegation
and did not ask for a limiting instruction regarding the
subsequent testimony, and (3) chose not to move for a directed
verdict on count 2.

¶20 To prove his counsel was constitutionally ineffective,
Tippets must “establish both that his trial counsel’s ‘performance

(…continued)
under the cumulative effects test.” Id. Because we conclude that
Tippets’s defense counsel committed no errors that, on their
own, had a conceivable potential for harm, there are no errors to
accumulate and the cumulative error doctrine does not apply.

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 State v. Tippets

was deficient’ and that ‘the deficient performance prejudiced the
defense.’” State v. Lopez-Gonzalez, 2020 UT App 15, ¶ 19, 459 P.3d
1049 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).
“Because both prongs of the Strickland test must be met to
establish ineffective assistance of counsel, we need not always
address both prongs.” State v. Goode, 2012 UT App 285, ¶ 7 n.2,
288 P.3d 306.

¶21 To meet the first prong, a defendant must establish that
“trial counsel’s performance was deficient in that counsel made
errors so serious that counsel was not functioning as the counsel
guaranteed the defendant by the Sixth Amendment.” State v.
Boyer, 2020 UT App 23, ¶ 62, 460 P.3d 569 (cleaned up). Because
there are “countless ways to provide effective assistance in any
given case,” we begin with a “presumption that, under the
circumstances, the challenged action might be considered sound
trial strategy.” Id. (cleaned up). Here, because we conclude that
counsel’s representation of Tippets at trial did not fall below an
objective standard of reasonableness and therefore was not
deficient, we affirm Tippets’s convictions.

I. Victim’s Prior Testimony

¶22 First, Tippets claims that defense counsel performed
deficiently when he elicited damaging testimony from the
victim. Specifically, he contends that it was objectively
unreasonable to ask the victim about her preliminary hearing
testimony that Tippets put his hand down her pants during the
first incident, when she had not mentioned that fact in her direct
examination at trial.

¶23 It is certainly debatable whether the potential value of
impeaching the victim was worth the cost of eliciting that
testimony. But “just as due process guarantees a fair trial, but
not a perfect one, the right to counsel guarantees a competent
attorney, not one whose performance is impervious to critique.”
State v. Boyer, 2020 UT App 23, ¶ 65, 460 P.3d 569 (cleaned up).
Thus, a defendant does not meet his burden of showing deficient

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 State v. Tippets

performance by “simply identifying arguably better choices that
trial counsel could have made.” See id. If defense counsel’s
“actions could have been intended to further a reasonable
strategy, a defendant has necessarily failed to show
unreasonable performance.” See State v. Ray, 2020 UT 12, ¶ 34,
469 P.3d 871.

¶24 We agree with the district court that an objectively
reasonable attorney could choose to pursue this line of
questioning as a matter of reasonable trial strategy. In a case
such as this one, where the victim’s credibility is paramount, a
reasonable attorney might make the strategic decision to elicit
testimony highlighting inconsistencies in the victim’s various
accounts. In light of the victim’s preliminary hearing testimony,
defense counsel reasonably expected the victim to testify that
Tippets put his hand down her pants during the first incident
and previewed that anticipated testimony for the jury in his
opening statement—a choice that Tippets has not challenged on
appeal. Given that the jury had already heard that allegation, a
reasonable defense attorney could conclude that the potential
value of impeaching the victim with her prior testimony
outweighed any remaining prejudice.

¶25 Defense counsel’s limited questioning on this topic
further demonstrates that this was an objectively reasonable
strategic choice. In particular, he did not question the victim
about her allegation that Tippets had rested his hand on her
vagina; rather, he ended questioning on the subject after she
admitted previously saying that Tippets had put his hand down
her pants. It was objectively reasonable to cast doubt on the
victim’s credibility by drawing attention to inconsistencies in her
statements, especially where defense counsel avoided drawing
attention to the most egregious alleged conduct. Regardless of
whether there were “arguably better choices that trial counsel
could have made,” confronting the victim with her prior
statement was not objectively unreasonable. See Boyer, 2020 UT
App 23, ¶ 65.

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 State v. Tippets

II. Prior Allegations

¶26 Tippets’s second claim is that his counsel rendered
ineffective assistance when he opened the door to testimony of a
previous allegation of sexual abuse and did not ask for a limiting
instruction once that testimony was admitted. We conclude that
both decisions were objectively reasonable.

¶27 First, defense counsel did not perform deficiently by
eliciting the mother’s testimony that she had other children
besides the victim and that she was not aware of “any
allegations [against Tippets] involving any untoward things
involving the other children.” The victim was the only one of the
mother’s children who had accused Tippets of abuse; the prior
allegation of abuse related to a stepdaughter from Tippets’s
previous marriage. Eliciting evidence that none of the victim’s
siblings had accused Tippets of inappropriate behavior allowed
defense counsel to potentially cast doubt on the victim’s account
in a case that hinged entirely on her credibility. And by narrowly
tailoring the question to relate only to the mother’s own
children, defense counsel minimized the risk that the question
might open the door to evidence of the prior allegation. Such a
strategy “is precisely the sort of calculated risk that lies at the
heart of an advocate’s discretion.” See Yarborough v. Gentry, 540
U.S. 1, 9 (2003) (per curiam).

¶28 The fact that the district court ultimately disagreed and
ruled that the question had opened the door to evidence of the
prior allegation does not render defense counsel’s performance
objectively deficient. “Every effort [must] be made to eliminate
the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the time.” Strickland v.
Washington, 466 U.S. 668, 689 (1984) (cleaned up). It was by no
means inevitable that defense counsel’s carefully worded
question would open the door to evidence of the prior allegation.
And to “eliminate the distorting effects of hindsight,” we cannot

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 State v. Tippets

allow the outcome of the court’s evidentiary ruling to color our
assessment of whether defense counsel’s representation of
Tippets fell outside the wide range of reasonable professional
assistance. See id. “Our supreme court has instructed that the
question of deficient performance is not whether some strategy
other than the one that counsel employed looks superior given
the actual results of trial. It is whether a reasonable, competent
lawyer could have chosen the strategy that was employed in the
real-time context of trial.” State v. Escobar-Florez, 2019 UT App
135, ¶ 35, 450 P.3d 98, cert. denied, 458 P.3d 748 (Utah 2020)
(cleaned up). Merely because an approach ultimately proves
unsuccessful does not mean that a defendant has been deprived
of effective assistance of counsel.

¶29 In addition, defense counsel’s decision not to request a
limiting instruction did not fall below an objective standard of
reasonableness. “Choosing to forgo a limiting instruction can be
a reasonable decision to avoid drawing attention to unfavorable
testimony.” State v. Garrido, 2013 UT App 245, ¶ 26, 314 P.3d
1014. Here, the evidence regarding the prior allegation was brief
and unspecific. The detective testified that he was aware of only
one other allegation of sexual abuse against Tippets and the
incident involved a stepdaughter who was sixteen years old at
the time. No other evidence was elicited, and the State never
referred to the prior allegation again. A reasonably competent
attorney could have concluded that requesting a limiting
instruction would merely highlight the prior allegation that had
been referred to only once and might otherwise receive little
attention from the jury. Such a strategic decision in a case where
there was a legitimate risk of “drawing attention to unfavorable
testimony” does not constitute deficient performance. See id.

III. Directed Verdict

¶30 Finally, defense counsel did not perform deficiently in
deciding not to move for a directed verdict on count 2. Count 2
charged Tippets with aggravated sexual abuse of a child based

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on the victim’s testimony that Tippets had touched and
squeezed her hands while her hands were covering her breasts.
Because the State had presented sufficient evidence from which
a jury could convict Tippets on an indecent liberties theory, a
directed verdict would have been futile.

¶31 “If the State presents no competent evidence from which a
reasonable jury could find the elements of the relevant crime,
then trial counsel should move for a directed verdict and the
failure to do so would likely constitute deficient performance.”
State v. Baer, 2019 UT App 15, ¶ 7, 438 P.3d 979 (cleaned up). On
the other hand, “trial counsel’s decision not to raise a futile
motion for a directed verdict would not be deficient
performance.” Id. (cleaned up). Such a motion “is futile when,
upon reviewing the evidence and all the inferences that can be
reasonably drawn from it, a court can find that some evidence
exists from which a reasonable jury could find that the elements
of the crime had been proven beyond a reasonable doubt.” State
v. Makaya, 2020 UT App 152, ¶ 10, 476 P.3d 1025 (cleaned up).

¶32 Here, a motion for a directed verdict would have been
futile because the State presented sufficient evidence on count 2
from which a reasonable jury could find the elements of
aggravated sexual abuse of a child. Relevant to this case, a
person commits sexual abuse of a child if “the actor touches the
anus, buttocks, pubic area, or genitalia of any child, the breast of
a female child, or otherwise takes indecent liberties with a child
. . . with the intent to arouse or gratify the sexual desire of any
person,” and that offense is aggravated when “committed by an
individual who occupied a position of special trust in relation to
the victim.” Utah Code Ann. § 76-5-404.1(2), (4), (4)(h)
(LexisNexis 2017). Tippets does not challenge the evidence
supporting either the required intent or the aggravating factor
but argues that there was no evidence that he engaged in the
prescribed conduct by touching one of the enumerated body
parts. When asked if Tippets’s hand touched her breast, the
victim answered, “No, sir. . . . His hand was touching my hands

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 State v. Tippets

touching my breasts, so no.” Tippets argues that “this conduct
cannot constitute a criminal offense under Utah law” because the
defendant did not “touch . . . the breast of a female child.” See id.
§ 76-5-404.1(2).

¶33 But the State was not required to prove that Tippets
made direct contact with the victim’s breasts. The aggravated
sexual abuse statute “prohibits two variants of conduct: touching
of the enumerated body parts, and taking indecent liberties with
another.” Cf. State v. Leota, 2019 UT App 194, ¶ 16, 455 P.3d 1087
(addressing similar language in the forcible sexual abuse
statute). At the time of Tippets’s trial, the term “indecent
liberties” was defined by caselaw to mean “activities of the same
magnitude of gravity as that specifically described in the
statute.” 4 State v. Lewis, 2014 UT App 241, ¶ 11, 337 P.3d 1053
(cleaned up). The sexual abuse of a child statute specifically
prohibits touching “the breast of a female child,” Utah Code
Ann. § 76-5-404.1(2), even if that touching is “accomplished
through clothing,” id. § 76-5-407(3). Therefore, to satisfy the
indecent liberties element, the State was required to prove that
Tippets’s conduct was of the same magnitude of gravity as
touching the breast of a female child, either under or over
clothing. 5

4. In 2019, the Utah legislature enacted a statutory definition of
“indecent liberties.” See Utah Code Ann. § 76-5-416 (LexisNexis
Supp. 2020).

5. We note that the jury instructions incorrectly defined indecent
liberties “as conduct that is as serious as touching under clothing
the anus; buttocks; or genitals of a person; or the breasts of a
female.” (Emphasis added.) At the time of trial, the forcible
sexual abuse statute required skin-to-skin contact with the
enumerated body parts, but the sexual abuse of a child statute
did not. State v. Carrell, 2018 UT App 21, ¶ 23 n.5, 414 P.3d 1030;
(continued…)

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 State v. Tippets

¶34 To determine whether the defendant’s conduct is
comparable to touching the enumerated body parts, the jury
must consider the surrounding circumstances. See State v.
Carvajal, 2018 UT App 12, ¶ 22, 414 P.3d 984 (“[T]he jury could
find that Carvajal committed the crime of forcible sexual abuse,
whether it was by touching her bare breast or by touching her
breast through clothing if the surrounding circumstances made
that comparable to touching her bare breast.”). The jury
instructions in this case provided the following guidance on how
to assess the comparative seriousness of the conduct:

In deciding whether conduct amounts to indecent
liberties, use your judgment and common sense.
You may consider factors such as: (1) the duration
of the conduct, (2) the intrusiveness of the conduct
against [the victim]’s person, (3) whether [the
victim] requested that the conduct stop, (4)
whether the conduct stopped upon request, (5) the
relationship between [the victim] and the
defendant, (6) [the victim]’s age, (7) whether [the
victim] was forced or coerced to participate, and
any other factors you consider relevant.

(…continued)
see also Utah Code Ann. § 76-5-407(3)(b) (LexisNexis 2017)
(providing that, for sexual abuse of a child, “any touching, even
if accomplished through clothing, is sufficient to constitute the
relevant element of the offense”). This instructional error, which
is not challenged on appeal, benefitted Tippets by effectively
increasing the State’s burden of proof at trial. But we assess the
sufficiency of the evidence to support the conviction “against the
elements of the charged crime, not against the erroneously
heightened command in the jury instruction.” Musacchio v.
United States, 577 U.S. 237, 243 (2016).

20190062-CA 17 2021 UT App 137
 State v. Tippets

¶35 Considering these factors, the State presented sufficient
evidence from which the jury could convict Tippets of taking
indecent liberties with the victim. At trial, the State presented
evidence that Tippets was in a position of special trust as the
victim’s stepfather and that the victim was only twelve years old
at the time of the second incident. The victim was in a vulnerable
position, sleeping on the floor of a mattress fort when Tippets
entered, laid down next to her, and began “spooning” her from
behind. Tippets used the victim’s hand under his hand to
squeeze and caress her breasts “for as long as he felt [he] needed,
which was about two to five minutes,” after which he moved her
hair, kissed her neck, and whispered in her ear. The victim
testified that even though Tippets did not touch her breast skin-
to-skin, it “still did not feel right” and made her uncomfortable.

¶36 A jury could find beyond a reasonable doubt that
Tippets’s conduct was comparable to the touching of a female
child’s clothed breast given the victim’s age, her relationship
with Tippets, the duration and intrusiveness of the touching,
and the other surrounding circumstances. “It was the jury’s
prerogative to consider all the evidence presented, weigh the
relevant factors on which it had been instructed, and make
findings according to its assessment of the evidence.” See Leota,
2019 UT App 194, ¶ 22. Because the State presented sufficient
evidence to justify submitting count 2 to the jury, a motion for a
directed verdict would have been futile and thus defense
counsel did not perform deficiently by forgoing such a motion.

CONCLUSION

¶37 Tippets has not demonstrated that the challenged conduct
by defense counsel fell below an objective standard of
reasonableness. Because he has not established that defense
counsel rendered deficient performance, we reject his claims of
ineffective assistance of counsel and affirm Tippets’s convictions.

20190062-CA 18 2021 UT App 137