State v. Gray

2015 UT App 106
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
JAMES GRAY,
Defendant and Appellant.

Opinion
No. 20120420-CA
Filed April 30, 2015

Third District Court, Salt Lake Department
The Honorable Anne Stirba
No. 991921214

Joel J. Kittrell and Kristina H. Ruedas, Attorneys
for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
STEPHEN L. ROTH and JOHN A. PEARCE concurred.

ORME, Judge:

¶1 Defendant James Gray appeals his convictions on one count
of sodomy on a child, three counts of sexual abuse of a child, and
one count of object rape of a child. We affirm.
 State v. Gray

BACKGROUND1

¶2 In 1999, the victim told her mother that Defendant had
sexually abused her since she was six years old. The victim’s
mother called a family member but did not call the police. A few
months later, the victim told a friend about the abuse, and her
friend suggested that she talk with a teacher or school counselor.
The next day, the victim talked to her school counselor, who called
the police.

¶3 Defendant was subsequently charged with one count of
sodomy on a child, three counts of sexual abuse of a child, and one
count of object rape of a child for conduct that occurred “on or
about November 1, 1991 to October 31, 1997.”

¶4 At trial, the victim testified that the first instance of abuse
occurred in 1990 or 1991, when she was around seven years old,
and that “it was sunny outside.” Defendant called to the victim
from inside his bedroom to get him a drink. The victim went to
Defendant, who was lying on his bed in his underwear, and he said
“he wanted to show [her] something.” When the victim got onto
the bed, Defendant “took [her] hand and put it down to his penis”
under his underwear, and he “[showed her] how to move up and
down.”

¶5 The victim also testified to another instance of abuse that
occurred right before a vacation to Disneyland when she was
around twelve years old. At that time, the victim was sleeping in
her living room. Around two or three o’clock in the morning,
Defendant started touching the victim’s breasts over her pajamas,
asking her to wake up and calling her name. Defendant also
reached down and touched the victim’s vagina over her pajamas.
This touching lasted for about ten minutes while the victim stayed
still and pretended to be asleep.

1.“We view the facts in the light most favorable to the jury verdict
and recite them accordingly.” State v. Loose, 2000 UT 11, ¶ 2, 994
P.2d 1237.

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 State v. Gray

¶6 Another time, when the victim was around eleven or twelve
years old, Defendant told her that he wanted to show her
something, and he produced a pink dildo. The victim testified that
Defendant rubbed the dildo on her breast and then applied a
lubricant to the dildo. Defendant then put the dildo “on the outside
of [her] vagina.” When she asked Defendant to stop, he stopped
and said he was sorry. However, Defendant proceeded to pull out
a bottle of “strawberry flavored” liquid, which he put on her
breasts and then licked off. The victim testified that this was the
only time Defendant touched her with the dildo.

¶7 Also, when the victim was still eleven or twelve years old,
Defendant joined her in the shower and “told [her] to put [her] one
leg up to the side of the tub.” Defendant, who was naked, sat down
in the tub and told her to hold onto his head while he licked her
vagina for around ten minutes. This happened again once or twice.

¶8 The victim further testified that while her family’s house
was being remodeled, she was in the living room watching a movie
when Defendant started to massage her breasts and vagina over
her clothing from behind. Defendant asked her if she was aroused,
and because she “didn’t know exactly what [that] meant,” she said,
“No.”

¶9 Finally, the victim testified that, at periodic intervals,
Defendant sexually abused her “[a]bout three times a week” from
the time she was seven and that the abuse stopped only after a
mutual acquaintance talked to Defendant in the fall of 1997. She
also testified that she remembered “flashes” of events. For
example, the victim testified that Defendant’s penis “sometimes”
touched her vagina, “but it never went in.” Defendant’s fingers
went inside her vagina “[o]nce or twice,” and “it felt really
uncomfortable” and “like a little burning.” Defendant also told her
that “he was teaching [her] how to please [her] husband when [she]
would be getting married.”

¶10 Soon after police learned of the sexual abuse, the victim was
examined by a pediatrician, who later testified as an expert witness.

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 State v. Gray

At trial, the pediatrician testified about her examination of the
victim. Specifically, the pediatrician testified that the victim told her
that Defendant had touched her with his hands and his penis, tried
to insert his penis into her vagina, and tried to insert his fingers
into her vagina. The victim also told the pediatrician that, while
“there had been pain,” there “had not been bleeding.”

¶11 The pediatrician testified to taking a behavioral history of
the victim, which showed that the victim exhibited signs of
depression, that the victim had been missing school and was angry,
that she did not seem interested in much of anything, and that she
had problems with her appetite when she was younger. The
pediatrician testified that “[t]he different things described in the
behavioral history could all have been caused by sexual abuse.”
She clarified, however, that “the behavioral changes are not specific
to sexual abuse [and other] things could cause them [as] well.” The
pediatrician also conducted a physical examination of the victim
and testified that, while the “entire exam was normal,” “a normal
exam fits the history” the victim gave.

¶12 On cross-examination, defense counsel confirmed with the
pediatrician that she had given child abuse talks throughout Utah
to prosecutorial offices, that she had been in court around two
hundred times, and that about ninety percent of the time she
testified for the prosecution. Defense counsel also asked the
pediatrician how she came to her conclusions and if she “took [the
victim’s] word” in making her conclusions, to which the
pediatrician replied, “I felt that she interviewed honestly. I took her
word and added to that the behavioral changes that existed.”

¶13 Defendant testified at trial and denied the allegations of
sexual abuse. He testified that he found out that the victim was
forging checks on his account, the implication being that the claims
of sexual abuse were made in retaliation for his expressed anger. At
trial, the victim admitted to writing one check on Defendant’s
account and signing Defendant’s name, but she insisted this was
done with his permission.

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 State v. Gray

¶14 After the State rested its case, Defendant moved to dismiss
the charges against him on the basis that there was insufficient
evidence to permit the jury to deliberate. The trial court denied the
motion and ruled that there was “some evidence as to each element
of each count” and that the jury needed to decide the issues. The
jury convicted Defendant on all counts. He now appeals.2

ISSUES AND STANDARDS OF REVIEW

¶15 Defendant raises several issues on appeal. First, Defendant
argues that the evidence was insufficient to convict him of sexual

2. Defendant was sentenced on March 23, 2001. That same day,
Defendant filed a motion for a new trial. Defendant’s then-counsel
failed to pursue the motion and failed to pursue an appeal. On
August 27, 2009, Defendant requested a Manning hearing to
reinstate his right to appeal. See Manning v. State, 2005 UT 61, ¶ 31,
122 P.3d 628 (holding that “upon a defendant’s motion, the trial or
sentencing court may reinstate the time frame for filing a direct
appeal where the defendant can prove, based on facts in the record
or determined through additional evidentiary hearings, that he has
been unconstitutionally deprived, through no fault of his own, of
his right to appeal”). In addition, on March 24, 2010, Defendant
filed a memorandum in support of his motion for new trial. On
August 12, 2010, Judge Randall N. Skanchy of the Third District
Court held an evidentiary hearing on Defendant’s Manning motion,
but the hearing was ultimately continued. On April 27, 2012, Judge
Skanchy denied Defendant’s motion for a new trial as untimely.
Defendant filed a Notice of Appeal from the denial on May 10,
2012. The continued portion of Defendant’s Manning hearing was
held on April 8, 2013. Judge Skanchy found that Defendant had
been unconstitutionally deprived of his right to appeal and
reinstated Defendant’s right to appeal on July 31, 2013. Defendant
filed an amended notice of appeal on August 23, 2013.

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 State v. Gray

abuse of a child.3 Second, Defendant argues that the evidence was
insufficient to support his conviction of object rape of a child.4
When a defendant challenges a jury verdict on the ground that the
evidence is insufficient, “[w]e review the evidence and all
inferences which may reasonably be drawn from it in the light most
favorable to the verdict.” State v. Hirschi, 2007 UT App 255, ¶ 15,
167 P.3d 503 (alteration in original) (citation and internal quotation
marks omitted). “We reverse . . . only when the evidence, so
viewed, is sufficiently inconclusive or inherently improbable that
reasonable minds must have entertained a reasonable doubt that

3. The parties differ as to the proper classification of the first issue.
In his brief, Defendant identifies the challenged conviction as
“Count I, Sodomy of a Child” and argues that the victim’s
testimony that Defendant made her touch his penis under his
underwear when she was around seven years old was insufficient
to convict him of sodomy on a child. However, as the State’s brief
correctly points out, the evidence that Defendant cites in his brief
was evidence the State presented in support of “Count IV, Sexual
Abuse of a Child.” The State therefore addresses Defendant’s claim
as a challenge to his sexual-abuse-of-a-child conviction, and after
reviewing Defendant’s arguments in support of his claim, we are
inclined to adopt the State’s approach and treat Defendant’s claim
as a challenge to his conviction for sexual abuse of a child rather
than sodomy on a child. However, to be thorough, we also
consider the sufficiency of the evidence supporting Defendant’s
sodomy-on-a-child conviction. See infra ¶¶ 24–26.

4. Defendant’s brief also raises the issues of whether the jury was
improperly instructed on the elements of object rape of a child and
whether Defendant’s trial counsel was ineffective for failing to
object to the jury instruction for object rape of a child. Defendant
conceded the issue on the jury instruction at oral argument, given
points made in the State’s brief and, therefore, we decline to
address that issue. Accordingly, we also decline to address
Defendant’s ineffective-assistance claim related to that issue. We
commend Defendant’s counsel for their candor and
professionalism in conceding this argument.

20120420-CA 6 2015 UT App 106
 State v. Gray

the defendant committed the crime of which he was convicted.” Id.
(omission in original) (citation and internal quotation marks
omitted).

¶16 Defendant next contends that the trial court erred in
allowing the pediatrician to testify that the victim was honest
during her medical exam. “Because [D]efendant failed to raise this
issue below, we review his claim for plain error.” State v. Baker, 963
P.2d 801, 803 (Utah Ct. App. 1998).

¶17 Defendant also argues that the prosecutor committed
misconduct by referencing uncharged conduct during his opening
statement. “We review a trial court’s handling of claimed
prosecutorial misconduct for an abuse of discretion.” State v. King,
2010 UT App 396, ¶ 13, 248 P.3d 984. However, “[w]here timely
objections to particular statements were not made below,
Defendant must establish either plain error or ineffective assistance
of counsel to merit reversal.” State v. Clark, 2014 UT App 56, ¶ 10,
322 P.3d 761.

¶18 Defendant’s final argument is that his trial counsel provided
ineffective assistance when he failed to object to the pediatrician’s
testimony regarding the victim’s truthfulness. “An ineffective
assistance of counsel claim raised for the first time on appeal
presents a question of law.” State v. Pedersen, 2010 UT App 38, ¶ 9,
227 P.3d 1264 (citation and internal quotation marks omitted).

ANALYSIS

I. Sufficiency of Evidence

A. Sexual Abuse of a Child

¶19 Defendant first claims that the evidence was insufficient to
support his conviction for sexual abuse of a child. A person
commits sexual abuse of a child if,

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under circumstances not amounting to rape of a
child, object rape of a child, sodomy on a child, or an
attempt to commit any of these offenses, the actor
touches the anus, buttocks, or genitalia of any child,
[or] the breast of a female child.

Utah Code Ann. § 76-5-404.1(2) (LexisNexis Supp. 2014).5

¶20 In this case, the jury instructions permitted the jury to find
that Defendant committed sexual abuse of a child only if it
concluded that such abuse occurred “on or about November 1,
1991 through October 31, 1997.” At trial, the victim testified that the
first instance of abuse occurred in 1990 or 1991 when she was
around seven years old and “it was sunny outside.” Defendant
argues that the victim turned seven on December 18, 1990, and that
“the State was required to prove that [Defendant] had engaged in
a sexual act with a child after November 1, 1991.” Thus, Defendant
argues, because the victim was only seven years old for a few
weeks after November 1, 1991, during a time of year when it is not
typically sunny, and because she did not remember the exact date
of the abuse, her “testimony regarding her age and the weather at
the time of [the] alleged abuse makes it very likely that any alleged
conduct occurred early on in her seventh year, outside the charged
period.”

¶21 In determining whether the evidence was sufficient to
support the jury’s verdict, we do not “sit as a second trier of fact.”
State v. Boyd, 2001 UT 30, ¶ 16, 25 P.3d 985. “It is the exclusive
function of the jury to weigh the evidence and to determine the
credibility of the witnesses. So long as there is some evidence,
including reasonable inferences, from which findings of all the
requisite elements of the crime can reasonably be made, our

5. Except where otherwise noted, we cite the current edition of the
Utah Code Annotated as a convenience to the reader. Only when
the statutory provisions in effect at the relevant time differ
materially from the statutory provisions now in effect do we cite
earlier versions of the code.

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 State v. Gray

inquiry stops.” Id. (emphasis in original) (citation and internal
quotation marks omitted).

¶22 Here, the jury was presented with some evidence of each
element of sexual abuse of a child during the charged period. See
id.; State v. Mead, 2001 UT 58, ¶¶ 66–67, 27 P.3d 1115 (concluding
that the evidence was sufficient to uphold the defendant’s
conviction for criminal solicitation where the only evidence to
support the jury’s verdict was testimony from a single witness).
First, the victim testified that “around” 1990 or 1991, when she was
“[a]round seven,” Defendant made her touch his penis under his
underwear. But more importantly, she testified that when
Defendant was around, he sexually abused her “[a]bout three times
a week” from the time she was seven and that the abuse did not
stop until after a mutual acquaintance talked to Defendant in the
fall of 1997.6 Thus, even if the victim was mistaken as to when the
abuse started, her testimony as to other instances of sexual abuse
places multiple instances of abuse well within the charged period.

¶23 Although Defendant denied having ever abused the victim,
the jury’s apparent decision to give the victim’s testimony
“significant weight and credibility was within the prerogative of
the trier of fact.” See State v. Wilkerson, 612 P.2d 362, 365 (Utah
1980). From the victim’s testimony, the jury could properly
conclude that Defendant’s conduct satisfied all of the elements of
sexual abuse of a child, see Utah Code Ann. § 76-5-404.1(2), and that
at least one incident of abuse occurred within the requisite time
frame, i.e., in the period between approximately November 1, 1991,
and October 31, 1997. Because it was within the jury’s prerogative
to so find, we conclude that the evidence was sufficient to convict
Defendant of sexual abuse of a child.

6. Notably, nothing in the jury instructions for this count limited
the jury’s consideration of the charge of sexual abuse of a child to
the specific incident where Defendant made the victim touch his
penis.

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 State v. Gray

B. Sodomy on a Child

¶24 For essentially the same reason, we conclude that there was
sufficient evidence to convict Defendant of sodomy on a child. A
person commits sodomy on a child if “the actor engages in any
sexual act upon or with a child who is under the age of 14,
involving the genitals or anus of the actor or the child and the
mouth or anus of either person, regardless of the sex of either
participant.” Utah Code Ann. § 76-5-403.1(1).

¶25 Here, the jury was presented with some evidence of each
element of sodomy on a child. See State v. Boyd, 2001 UT 30, ¶ 16, 25
P.3d 985. The victim testified that when she was eleven or twelve,
Defendant, who was naked, joined her in the shower and “lick[ed
her] vagina” for ten minutes. The victim stated that she
remembered this particular time that Defendant performed oral sex
on her “because it was the first time it ever happened to [her],” and
“it felt . . . really weird that time.” She also testified that Defendant
did it again “once [or] twice.”

¶26 Based on the victim’s testimony, the jury could properly find
that Defendant’s conduct satisfied all of the elements for sodomy
on a child. See Utah Code Ann. § 76-5-403.1(1). We see no reason to
second guess the jury’s determination and, therefore, we conclude
that the evidence was sufficient to convict Defendant on the charge
of sodomy on a child.

C. Object Rape of a Child

¶27 Defendant next claims that the evidence was insufficient to
support his conviction for the crime of object rape of a child.
Specifically, Defendant argues that the State failed to prove
“penetration, however slight,” under section 76-5-402.3 of the Utah
Code. Defendant was charged under the 1995 version of the Utah
Code. Under that version, a person committed object rape of a
child when the person

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 State v. Gray

cause[d] the penetration, however slight, of the
genital or anal opening of a child who [was] under
the age of 14 by any foreign object, substance,
instrument, or device, not including a part of the
human body, with intent to cause substantial
emotional or bodily pain to the child or with the
intent to arouse or gratify the sexual desire of any
person . . . .

Utah Code Ann. § 76-5-402.3 (Michie 1995). At trial, the victim
testified that Defendant put a dildo “on the outside of [her]
vagina.” According to Defendant, under State v. Simmons, 759 P.2d
1152 (Utah 1988), the State must have proven that the object in
question was at least “between the outer folds of [the victim’s]
labia” during the incident to constitute penetration. Id. at 1154.
Defendant argues that because the victim testified that Defendant
put the dildo “on the outside” of her vagina, the State could not
have proven that the dildo was between the folds of her labia.

¶28 In Simmons, the defendant was convicted of rape of a child
based on the child’s testimony that the defendant had “put the tip
of his penis ‘on’ her labia.” Id. at 1153–54. On appeal, the defendant
argued that the evidence was insufficient to sustain his conviction
because there was no showing of penetration as required under the
version of the law then in effect, see Utah Code Ann. § 76-5-407(2)
(Allen Smith Supp. 1985), and the Utah Supreme Court agreed, see
Simmons, 759 P.2d at 1153–54. The Supreme Court noted that the
“generally accepted rule is that entry between the outer folds of the
labia is sufficient to constitute ‘penetration’ as that term is
commonly used in defining the crime of rape.” Id. at 1154.
Therefore, the child’s testimony in Simmons that the defendant “put
the tip of his penis ‘on’ her labia” was insufficient to constitute even
slight penetration, and the Supreme Court reversed the defendant’s
conviction for rape of a child. Id. at 1154–55.

¶29 Defendant’s reliance on Simmons is misplaced. At the time
Simmons was decided, the relevant section of the Utah Code, which
defined “‘[p]enetration’ or ‘touching’ sufficient to constitute [the]

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offense,” provided, “In any prosecution for unlawful sexual
intercourse, rape, or sodomy, any sexual penetration or, in the case
of sodomy, any touching, however slight, is sufficient to constitute
the offense,” Utah Code Ann. § 76-5-407(2) (Allen Smith Co. Supp.
1985). Thus, to be clear, “sexual penetration” was required for most
offenses, though “any touching” was sufficient for a sodomy
charge. See id. But section 76-5-407(2) has since been amended. In
1989, the Utah Legislature added “rape of a child, or object rape of
a child” to the crimes for which “any touching, however slight”
was “sufficient to constitute the relevant element of the offense.”
See Act of Feb. 16, 1989, ch. 235, § 2, 1989 Utah Laws 765, 765
(codified at Utah Code Ann. § 76-5-407(2) (Michie Supp. 1989)).
Thus, at the time Defendant committed his crime, the law
provided, “In any prosecution for unlawful sexual intercourse,
rape, rape of a child, object rape of a child, or sodomy, any sexual
penetration or, in the case of sodomy, rape of a child, or object rape
of a child any touching, however slight, is sufficient to constitute the
relevant element of the offense.” Utah Code Ann. § 76-5-407(2) (Michie
1995) (emphasis added). “Penetration” as defined in Simmons, i.e.,
“entry between the outer folds of the labia,” see 759 P.2d at 1154,
was no longer required to commit the offense of object rape of a
child; rather, “any touching, however slight” was all that was
necessary to constitute the offense, see Utah Code Ann. § 76-5-
407(2) (Michie 1995).

¶30 At trial, the victim testified that when she was around
eleven or twelve years old, Defendant took out a pink dildo and
first rubbed it on her breast. He then applied a lubricant to the
dildo and put the dildo “on the outside of [her] vagina.” Because
“entry between the outer folds of the labia” was no longer required
to commit the offense of object rape of a child at the time
Defendant put the dildo on the outside of the victim’s vagina,
Defendant’s act was sufficient to establish the requisite “touching,
however slight” under section 76-5-407(2) of the Utah Code. As
such, Defendant’s act was sufficient to constitute the element of
“penetration” under the object rape of a child statute then in effect.
See Utah Code Ann. § 76-5-402.3 (Michie 1995). We therefore

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conclude that there was sufficient evidence to support Defendant’s
conviction for object rape of a child.

II. Expert Testimony

¶31 Defendant also claims that the trial court erred in allowing
the State’s medical expert, the pediatrician who examined the
victim, to testify regarding the victim’s truthfulness, in violation of
rule 608(a) of the Utah Rules of Evidence.7 At trial, Defendant’s
counsel pursued the following line of questioning during cross-
examination:

[Defense Counsel]: Simply tell me, if there is nothing
to show that this young lady has any physical
evidence to show that she has been sexually
abused—now, I said physical—how do you arrive to
the conclusion that she was sexually abused?

[Pediatrician]: The diagnosis is based on her
interview, the statements that she makes, the
behavioral changes that are consistent with sexual
abuse, the well known fact that 80 percent or more of
child sexual abuse cases have normal physical
examinations and that physical findings are not the
way to make the diagnosis.

[Defense Counsel]: But you’re not a psychiatrist and
you’re not a psychologist, so all we have here really

7. Rule 608(a) provides:
A witness’s credibility may be attacked or supported
by testimony about the witness’s reputation for
having a character for truthfulness or untruthfulness,
or by testimony in the form of an opinion about that
character. But evidence of truthful character is
admissible only after the witness’s character for
truthfulness has been attacked.
Utah R. Evid. 608(a).

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 State v. Gray

comes down to the barest of points, is the fact that
you took her word to make your conclusion.
Whatever [the victim] told you, you took her word?

[Pediatrician]: I felt that she interviewed honestly. I
took her word and added to that the behavioral
changes that existed.

Defense counsel did not object to the pediatrician’s statements,
which were, after all, made in response to his questions.

¶32 Generally, “claims not raised before the trial court may not
be raised on appeal,” and we will not consider them unless
“exceptional circumstances exist or plain error occurred.” State v.
Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (citations and internal
quotation marks omitted). Defendant argues the applicability of the
plain-error exception to the preservation rule. But under the
doctrine of invited error, Utah courts “have declined to engage in
even plain error review when counsel, either by statement or act,
affirmatively represented to the [trial] court that he or she had no
objection to the [proceedings].” State v. Winfield, 2006 UT 4, ¶ 14,
128 P.3d 1171 (alterations in original) (citation and internal
quotation marks omitted). The invited-error doctrine “prohibits a
party from setting up an error at trial and then complaining of it on
appeal.” State v. Layman, 953 P.2d 782, 785 (Utah Ct. App. 1998)
(citation and internal quotation marks omitted).

¶33 For example, in In re E.D., 876 P.2d 397 (Utah Ct. App. 1994),
both parents appealed an order terminating their parental rights.
Id. at 398. At trial, two therapists testified that they believed the
children had been sexually abused. See id. at 402. On appeal, the
parents argued, among other things, “that it was improper for the
court to consider testimony bearing upon the perceived credibility
of the children.” Id. at 401. Specifically, the parents argued that the
trial court improperly permitted the testimony of the two
therapists, who testified “that they believed the children were
telling the truth about being sexually abused.” Id. at 402. Because
the parents had not objected to this testimony at trial, this court

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 State v. Gray

determined that the parents had waived the issue. Id. Moreover,
during trial, “counsel for the parents asked three witnesses whether
they thought the children were credible.” Id. (emphasis in original).
Accordingly, this court concluded that “even if it were error to
admit the testimony, it was ‘invited’ error[,] which is viewed with
disfavor in Utah.” Id.

¶34 Similar to In re E.D., the pediatrician’s statement concerning
the victim’s truthfulness was in direct response to a line of
questioning by Defendant’s counsel. Defense counsel asked the
pediatrician how she arrived at her conclusion and whether she
“took [the victim’s] word” in her evaluation, and thus, Defendant
elicited the very testimony he now protests. Accordingly, we
conclude that even if it were error to admit the pediatrician’s
testimony, it was invited error. Under the invited-error doctrine,
Defendant is prohibited from now complaining of an alleged error
that he set up. See Layman, 953 P.2d at 785. Accordingly, we decline
to further address this argument.

III. Prosecutorial Misconduct

¶35 Defendant next argues that the prosecutor engaged in
misconduct during his opening statement when he made several
references to uncharged, alleged instances of sexual abuse of the
victim.

¶36 A prosecutor’s remarks

constitute misconduct meriting reversal if they “call
to the attention of the jurors matters they would not
be justified in considering in determining their
verdict and . . . the error is substantial and prejudicial
such that there is a reasonable likelihood that in its
absence, there would have been a more favorable
result for the defendant.”

State v. Maestas, 2012 UT 46, ¶ 159, 299 P.3d 892 (omission in
original) (quoting State v. Tillman, 750 P.2d 546, 555 (Utah 1987)).

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 State v. Gray

“In assessing whether allowing the prosecution’s comments was a
harmful error, ‘we will consider the comments both in context of
the arguments advanced by both sides as well as in context of all
the evidence.’” Id. (quoting State v. Bakalov, 1999 UT 45, ¶ 56, 979
P.2d 799). However, failure to object to the prosecution’s improper
remarks at trial “waives the claim unless the remarks reach the
level of plain error.” State v. Palmer, 860 P.2d 339, 342 (Utah Ct.
App. 1993). Defendant failed to raise timely objections to the
prosecutor’s opening remarks at trial, and so he argues that the
plain-error exception to the preservation rule applies.

¶37 To establish plain error, Defendant must show that “(i) [a]n
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful, i.e., absent the error, there is a
reasonable likelihood of a more favorable outcome for the
appellant.” State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).

¶38 Defendant points out that he was charged for conduct “that
occurred between November 1991 through October 31, 1997.” But
during his opening statement, the prosecutor made three references
to alleged abuse for which Defendant had not been charged.
Specifically, during his opening statement, the prosecutor said:

Now, [the victim] doesn’t have exact dates as to
when [the abuse] started or when it ended and that’s
why the Information that was just read says from
November 2, 1991 through October 31st of 1997. The
abuse started when she was six. In fact that was 1989.
And the allegation is from 1991. Because of [the]
statute of limitations, [the] State can only file charges
that go back eight years. This case was filed
in . . . October of 1999. So we go back eight years
from there.

The prosecutor also remarked, “And as I indicated, from the time
she was six years old to 1997 this type of abuse happened.” Finally,
the prosecutor told the jury, “You have heard about the six charges.

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I have explained to you the statute-of-limitation reason why we’re
not going back to 1989, but going to 1991.”

¶39 Each of these statements referred to alleged conduct for
which Defendant had not been charged because the conduct was
outside of the period specified in the charging document.
Defendant therefore argues that “without the remarks there is a
reasonable likelihood that [Defendant] would have secured a more
favorable outcome” and that the “remarks compel a reversal of
[Defendant’s] conviction.”

¶40 We agree with Defendant that it was inappropriate for the
prosecutor to refer to the alleged pre-1991 conduct because it was
uncharged and thus called the jurors’ attention to matters they
were not justified in considering in reaching their verdict. See
Maestas, 2012 UT 46, ¶ 159. But even assuming that the error should
have been obvious to the trial court, we disagree with Defendant
that the requisite prejudice resulted from the prosecutor’s
statements.8 See Dunn, 850 P.2d at 1208.

¶41 The evidence placing Defendant’s conduct within the time
period for which he was actually charged was overwhelming. Cf.
State v. King, 2010 UT App 396, ¶ 35, 248 P.3d 984 (noting that “we
more readily find errors to be harmless when confronted with
overwhelming evidence of the defendant’s guilt”). The jury heard
testimony from the victim that Defendant made her touch his
penis, that he touched her breasts and vagina, that he licked her
breasts and vagina, that he touched a dildo to her vagina, that he
touched his penis to her vagina, that he put his fingers in her
vagina, and that he abused her “[a]bout three times a week” during
periodic intervals spanning several years within the salient time
period. See supra ¶¶ 4–9. There is nothing to suggest that the jury
would have viewed Defendant more favorably had it thought the
extensive abuse lasted a “mere” six years rather than eight or that

8. We will assume that prejudice resulted to Defendant unless we
can conclude that the error was harmless beyond a reasonable
doubt. See State v. Davis, 2013 UT App 228, ¶¶ 9–12, 311 P.3d 538.

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it otherwise latched on to the prosecutor’s statements and relied on
them when it found Defendant guilty.9 Accordingly, although it
was inappropriate for the prosecutor to refer to the uncharged
conduct, we conclude, beyond a reasonable doubt, that the
prosecutor’s statements were not so prejudicial as to warrant
reversal.

IV. Ineffective Assistance of Counsel

¶42 Finally, Defendant, represented by new counsel on appeal,
argues that his trial counsel was ineffective for “failing to object to
. . . [the pediatrician’s] testimony” and for failing “to move to strike
the testimony as unresponsive, inappropriate and inadmissible.”
To establish that he received ineffective assistance of counsel,
Defendant must show “that counsel’s performance was deficient”
and “that the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). “If a defendant
fails to establish either of the two parts of the Strickland test,
counsel’s assistance was constitutionally sufficient, and we need
not address the other part of the test.” State v. Medina-Juarez, 2001
UT 79, ¶ 14, 34 P.3d 187.

¶43 To demonstrate that counsel’s performance was deficient,
Defendant “must overcome the strong presumption that [his] trial
counsel rendered adequate assistance, by persuading the court that
there was no conceivable tactical basis for counsel’s actions.” State v.

9. The trial court greatly reduced any harm resulting from the
prosecutor’s improper statements. During its deliberations, the jury
asked whether it could consider any conduct occurring prior to the
dates charged with regard to count IV. The trial court responded
by telling the jury, “You cannot base a conviction under Count IV
upon an event you find occurred prior to November 1, 1991. Count
IV has to pertain to an event that you find occurred between
November 1, 1991, and October 31, 1997.” Thus, any prejudicial
effect from the prosecutor’s statements was largely neutralized by
the court’s specific admonition to the jury.

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 State v. Gray

Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (emphasis and alteration in
original) (citations and internal quotation marks omitted).
Defendant’s bare assertion that “[n]o possible tactical reason
existed for defense counsel to engage in such a deficient manner”
does not overcome this presumption.

¶44 “[W]hen viewing ‘the variety of circumstances faced by
defense counsel,’ a conscious choice not to object to arguably
inadmissible testimony may, at times, fall within ‘the range of
legitimate decisions regarding how best to represent a criminal
defendant.’” State v. Marble, 2007 UT App 82, ¶ 12, 157 P.3d 371
(quoting Strickland, 466 U.S. at 689). Likewise, a defendant cannot
establish that his counsel’s performance was deficient under
Strickland “by merely showing that counsel elicited arguably
inadmissible testimony.” Id. Rather, a defendant must still
“overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Strickland, 466 U.S. at 689 (citation and internal quotation marks
omitted).

¶45 Upon reviewing the transcript of defense counsel’s cross-
examination of the pediatrician in conjunction with his closing
argument, we can conceive of a sound tactic served by defense
counsel’s line of questioning. To begin with, it is reasonable to
conclude that defense counsel elicited the pediatrician’s testimony
to call to the jury’s attention that there was no independent
physical evidence of abuse. After all, the pediatrician testified that
she conducted a physical examination of the victim and that “[h]er
exam was normal.”

¶46 In addition, defense counsel’s line of questioning may well
have been designed to highlight the fact that although the “things
described in [the victim’s] behavioral history could all have been
caused by sexual abuse,” the pediatrician readily conceded that
“the behavioral changes [were] not specific to sexual abuse” and
that “[o]ther things could [have] cause[d] them [as] well.” Defense
counsel also highlighted the fact that the pediatrician had been in

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court around two hundred times and that she had testified for the
prosecution about ninety percent of the time, arguably calling into
question her objectivity.

¶47 Moreover, defense counsel’s strategy in eliciting the
pediatrician’s statements is illustrated by his closing argument,
where he used the pediatrician’s statements to question her
reliability as an expert witness. Specifically, in closing argument,
defense counsel stated:

The prosecutor wants you to give credence to an
expert. The instructions tell you you don’t have to. I
cannot give credence to an expert who says I only
teach prosecutors. I cannot give credence to an expert
that says I base my findings on hearsay testimony
that I did not even confirm myself, personally. I took
for face value what was written and what was stated
to me.

Based on defense counsel’s questioning during cross-examination
and his use of the pediatrician’s answers during his closing
argument, it is reasonable to conclude that defense counsel’s line
of questioning was designed to demonstrate that the pediatrician’s
testimony was not reliable. Accordingly, the record demonstrates
that counsel had a conceivable tactical basis for eliciting the
pediatrician’s statement regarding the victim’s truthfulness. We
therefore conclude that Defendant has not shown that defense
counsel’s performance was deficient under the Strickland test. See
466 U.S. at 687. Because Defendant has failed to establish deficient
performance, “we need not address the [prejudice] part of the test.”
State v. Medina-Juarez, 2001 UT 79, ¶ 14, 34 P.3d 187.10

10. Defendant also argues that his trial counsel was ineffective for
failing to object to the prosecutor’s remarks during opening
statement. Because we conclude above that Defendant was not
prejudiced by the prosecutor’s opening remarks, see supra ¶ 41, his
(continued...)

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 State v. Gray

CONCLUSION

¶48 We conclude that there was sufficient evidence to find
Defendant guilty of both sexual abuse of a child and object rape of
a child. We further conclude that any error committed by the trial
court in allowing the pediatrician to testify regarding the victim’s
truthfulness was invited error. In addition, we conclude that the
prosecutor’s opening remarks were not so prejudicial as to warrant
reversal. Finally, we reject the argument that Defendant received
ineffective assistance of counsel at trial. We therefore affirm
Defendant’s convictions.

10.(...continued)
ineffective-assistance claim relating to this issue necessarily fails for
lack of prejudice, see State v. Medina-Juarez, 2001 UT 79, ¶ 14, 34
P.3d 187.

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