State v. Roberts

2018 UT App 9

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MARK JESS ROBERTS,
Appellant.

Opinion
No. 20150247-CA
Filed January 11, 2018

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
The Honorable Deno G. Himonas
No. 101908693

Nathalie S. Skibine, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.

POHLMAN, Judge:

¶1 Mark Jess Roberts appeals his convictions for various
crimes involving sexual abuse of a child (Victim). He argues that
the trial court erred by (1) admitting into evidence a video-taped
interview of Victim by the Children’s Justice Center (the CJC
interview), (2) failing to strike testimony of a witness, and (3)
excluding evidence regarding another potential perpetrator of
Victim’s sexual abuse. We affirm.

BACKGROUND

¶2 Between the ages of four and five, Victim lived with her
mother and Roberts, her mother’s boyfriend. Though she knew
 State v. Roberts

that Roberts was not her biological father, she referred to him as
“dad.”

¶3 Victim was taken to live with her grandmother
(Grandmother) when she was five years old and eventually
disclosed to Grandmother, her cousin, and a therapist that
Roberts had sexually abused her. In May 2010, Grandmother
took Victim to the Children’s Justice Center where a caseworker
interviewed Victim about the abuse. The CJC interview was
videotaped, and during the interview, Victim disclosed details of
several separate incidents of abuse.

¶4 The State charged Roberts with three counts of first
degree felony rape of a child, two counts of first degree felony
sodomy on a child, one count of first degree felony aggravated
sexual abuse of a child, and one count of class A misdemeanor
lewdness involving a child.1

¶5 Before and during trial, the court made several
evidentiary rulings relevant to this appeal. First, before trial, the
State moved to admit the video of the CJC interview. Roberts
objected under rule 15.5 of the Utah Rules of Criminal
Procedure, arguing that the interview was not sufficiently
reliable. The court held a hearing on the matter, and both parties
presented expert testimony addressing the reliability of the
interview. The court ultimately found the CJC interview to be
sufficiently reliable and allowed the State to play the video for
the jury.

¶6 At trial, Victim’s therapist, a social worker (Social
Worker), testified. She provided specific details about Victim
and their therapy sessions, and she also compared Victim’s
behavior to other child victims of sexual abuse. Approximately
thirty minutes into the State’s direct examination Roberts

1. Roberts also faced other charges, but those were ultimately
resolved in his favor and are not the subject of this appeal.

20150247-CA 2 2018 UT App 9
 State v. Roberts

objected, arguing that the State had not notified him that Social
Worker would testify as an expert and moving to strike Social
Worker’s testimony in its entirety. The trial court ruled that
Roberts’s motion was untimely and that he had therefore waived
his objection.

¶7 Finally, Roberts attempted to elicit testimony from
Grandmother that her ex-husband, Victim’s grandfather
(Grandfather), was a registered sex offender and had previously
been convicted of child sexual abuse. The State objected, arguing
under rule 403 of the Utah Rules of Evidence that evidence of
Grandfather’s previous convictions was substantially more
prejudicial than probative. The court sustained the objection,
concluding that the danger of unfair prejudice substantially
outweighed the probative value of the evidence.

¶8 The jury convicted Roberts on all counts. Roberts appeals.

ISSUES

¶9 Roberts raises three main issues on appeal. First, he
argues that the trial court erred in admitting the CJC interview.
Second, he argues that the court abused its discretion when it
did not strike Social Worker’s testimony. Finally, he argues that
the court abused its discretion by not admitting evidence of
Grandfather’s prior convictions.

ANALYSIS

I. The CJC Interview’s Admissibility

¶10 Roberts argues that the trial court erred in admitting the
CJC interview into evidence. He contends that Victim’s recorded
statement was not sufficiently reliable as required by rule 15.5 of
the Utah Rules of Criminal Procedure.

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 State v. Roberts

¶11 Rule 15.5 provides that “the oral statement of a victim . . .
younger than 14 years of age which was recorded prior to the
filing of an information or indictment is . . . admissible as
evidence in any court proceeding regarding the offense if,”
among other things, “the court views the recording before it is
shown to the jury and determines that it is sufficiently reliable
and trustworthy and that the interest of justice will best be
served by admission of the statement into evidence.” Utah R.
Crim. P. 15.5(a)(8).

¶12 Reliability in this context is a fact-intensive inquiry,
requiring the trial court to undertake “an in-depth evaluation of
the proposed testimony” and then enter findings and
conclusions to explain its decision to admit or exclude the
testimony. See State v. Snyder, 932 P.2d 120, 133 (Utah Ct. App.
1997) (citation and internal quotation marks omitted). As a
result, “[i]n reviewing the trial court’s decision to admit, we
defer to the trial court’s fact-finding role by viewing the facts in
the light most favorable to the trial court’s decision to admit and
by reversing its factual findings only if they are against the clear
weight of the evidence.” See State v. Ramirez, 817 P.2d 774, 782
(Utah 1991); see also Utah R. Civ. P. 52(a)(4) (“Findings of fact,
whether based on oral or other evidence, must not be set aside
unless clearly erroneous, and the reviewing court must give due
regard to the trial court’s opportunity to judge the credibility of
the witnesses.”). “However, we review for correctness whether
the facts are sufficient to demonstrate reliability, since this is a
question of law.” See State v. Hollen, 2002 UT 35, ¶ 28, 44 P.3d 794
(citation and internal quotation marks omitted); see also State v.
Cruz, 2016 UT App 234, ¶ 16, 387 P.3d 618 (“Whether the trial
court correctly admitted the videotaped interviews into evidence
pursuant to rule 15.5 is a question of law that we review for
correctness.”).

¶13 In making its reliability determination, the trial court
considered numerous factors and made extensive findings.
Among other things, the court found that the interview showed
Victim to be “a six-year-old that was articulate, aware of the

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 State v. Roberts

circumstances under which she was being interview[ed], and . . .
strong enough personality-wise and intelligent to understand
the questions and respond appropriately if she so desired.” The
court also made findings regarding the timing of the interview,
the spontaneity of Victim’s statements, the types of questions
asked, and whether Victim’s statements seemed rehearsed. The
court found that, overall, the allegations described “were
sufficiently consistent,” as Victim “told the same or similar story
throughout the interview”; that Victim’s statements contained
“sufficient detail or description” given her age; and that she
“volunteered information, often spontaneously.”

¶14 Despite the court’s findings, Roberts asserts that the
court’s reliability determination must be reversed for several
reasons. He challenges the interviewing technique and the
court’s assessment of it. He also challenges the court’s
determinations about the length of time that elapsed between the
abuse and the interview and the court’s assessment of allegedly
incredible statements made by Victim. We address each set of
challenges below.

A. Interviewing Technique

¶15 Roberts asserts that the forensic interviewing technique
was flawed in a way that rendered the CJC interview unreliable.
In particular, he contends that the interviewer used leading
questions; that she did not elicit a promise from Victim to tell the
truth and did not establish what truth was; that the interviewer’s
reliance on drawings was improper; and that the interviewer
failed to ask follow-up questions about certain key issues, such
as conversations Victim had with Grandmother and Victim’s
cousin about the abuse. He also contends that, regardless of the
quality of Victim’s responses, the “forensic interviewing tactics
were flawed” and that “[o]nly a reliably conducted forensic
interview is an acceptable substitute for effective cross
examination.” We disagree.

¶16 The court, after considering expert testimony on the issue,
rejected Roberts’s contention that the interviewer’s technique

20150247-CA 5 2018 UT App 9
 State v. Roberts

undermined the reliability of Victim’s interview. For example,
the court found that Victim “did not appear to be subject to any
leading questions.” The court further noted that, even if certain
questions could be properly characterized as leading, the experts
agreed those questions “were insignificant to the interview” and
that Victim’s responses allayed concerns about potentially
problematic inquiries.

¶17 Regarding the promise of truth, the court found that,
although Victim was not asked at the outset to “promise to tell
the truth,” “the content of the interview, the answers given, the
responses to the questions, [and Victim’s] ability to correct and
say ‘no’ or ‘I don’t know’ . . . demonstrate[d] [Victim] did
understand, at the level of a six-year-old, what it means to tell
the truth.”

¶18 As to the use of drawings during the interview, the court
noted that one of the experts opined that the manner in which
the drawings were used was proper; that it was Victim who
suggested using the drawings, “probably because she was a six-
year-old embarrassed to discuss or talk about the events that she
described”; and that the interviewer had Victim explain what
she had drawn.

¶19 Finally, with regard to a lack of follow-up questions, the
court determined that, given Victim’s responses to the questions
posed to her, the interviewer’s failure to “pursu[e] certain
additional details” did not render the interview unreliable and
that “any lack of thoroughness . . . goes to the weight to be given
to the evidence of the interview.”

¶20 The court also generally found that, although the
interview was not perfect, the quality of Victim’s responses
allayed concerns about any potentially deleterious effect from
the interviewing technique employed. For example, the court
found that, overall, the allegations described “were sufficiently
consistent,” as Victim “told the same or similar story throughout
the interview.” The court also found that Victim’s statements
contained “sufficient detail or description” given her age; that

20150247-CA 6 2018 UT App 9
 State v. Roberts

she “volunteered information, often spontaneously”; and that
she “elaborated” and “gave information she thought was
relevant to the questions posed to her.” In addition, the court
found that Victim’s responses and descriptions “did not appear
to be rehearsed,” that there was “no evidence in the interview
that she was being coached or that she was being [led] by the
interviewer,” and that she “did not appear to be under pressure
to tell a certain story.”

¶21 Roberts fails to demonstrate that the trial court’s findings
are clearly erroneous or that the trial court erred in determining
that the interview was sufficiently reliable in light of those
findings. Rather, he primarily takes issue with the court’s
emphasis on the quality of Victim’s responses rather than the
flaws he asserts are evident in the interviewing technique. In
doing so, he appears to also suggest that the court ought to have
assessed and credited the expert testimony about the interview
differently. But Roberts has directed us to no authority
suggesting that there is one “right” way to conduct an interview
and that any departure from that way will render the interview
unreliable. Rather, to make its reliability determination, the court
was required to assess the interview in all of its circumstances,
with any assistance from the experts’ opinions the court chose to
credit. That the court chose to weigh more heavily Victim’s
responses than a perceived flaw in the interviewing technique
does not, without more, render its reliability determination
erroneous. And, more to the point, we will defer to the court’s
determination that certain alleged flaws, such as the failure to
ask certain follow-up questions or elicit an express promise to
tell the truth, did not outweigh the factors demonstrating the
interview’s overall reliability. See Salt Lake City v. Reyes-Gutierrez,
2017 UT App 161, ¶ 22, 405 P.3d 781 (“Our role is not to reweigh
the evidence, but to determine only if the appellant has
demonstrated a lack of evidentiary support for the trial court’s
findings. The mere fact that this court might have reached a
different result on the evidence presented does not justify setting
aside the trial court’s findings.” (citations and internal quotation
marks omitted)); State v. Hodges, 798 P.2d 270, 274 (Utah Ct. App.

20150247-CA 7 2018 UT App 9
 State v. Roberts

1990) (stating that where “the judge serves as fact finder, the
court has considerable discretion to assign relative weight to the
evidence before it,” which “includes the right to minimize or
even disregard certain evidence”).

B. Other Determinations

¶22 Roberts also challenges other of the trial court’s
determinations—specifically, the court’s determinations as to the
timing of the interview relative to the abuse, and its assessment
of certain of Victim’s statements that he claims “strain
credulity.” We address each below.

1. Timing

¶23 First, Roberts challenges the trial court’s findings as to
whether the length of time between the abuse and the CJC
interview undermined the reliability of Victim’s statement. The
court found that more than one year elapsed between the abuse
and the interview but that the timing did “not appear to have
affected . . . the reliability of the interview.” It also found that the
length of time was “not an unusually long period . . . given the
type of allegations” and given the fact that the abuser was
“someone who [Victim] viewed as a father-figure.”

¶24 Nevertheless, relying on State v. Nguyen, 2012 UT 80, 293
P.3d 236, Roberts contends that the general proposition that “‘a
video-recorded interview of a child might be more reliable than
in-court testimony in cases of . . . child sexual abuse because it is
made closer in time to the incident’” is “less compelling in this
case,” due to the length of time involved. (Quoting id. ¶ 21.) And
relying on both Nguyen and State v. Lenaburg, 781 P.2d 432 (Utah
1989), in which the interviews at issue took place substantially
closer in time to the alleged abuse, he apparently argues that,
regardless of the other circumstances surrounding the interview,
the length of the delay between the abuse and the interview in
this case rendered the interview incapable of being “better
evidence than in-court testimony.” But neither Nguyen nor
Lenaburg established a bright-line rule that CJC interviews

20150247-CA 8 2018 UT App 9
 State v. Roberts

conducted more than one year from the time of the alleged abuse
are per se unreliable. See Nguyen, 2012 UT 80, ¶ 21; Lenaburg, 781
P.2d at 436.

¶25 We also reject Roberts’s argument that, because the
interview was conducted more than one year after the abuse, the
details were “not fresh in the child’s mind” so that the video was
unlikely to provide “better evidence than in-court testimony.”
Here, Victim was interviewed approximately one year after the
abuse; in contrast, Victim testified at trial five years after the
abuse.2 Because the interview was significantly closer in time to
the abuse, it would likely be more detailed and perhaps more
accurate than the testimony given at trial. See Nguyen, 2012 UT
80, ¶ 21 (“[A] video-recorded interview of a child might be more
reliable than in-court testimony in cases of child abuse or child
sexual abuse because it is made closer in time to the incident and
is removed from the stressful setting of a trial.”). Accordingly,
Roberts has failed to show error in the court’s assessment of the
timing in the case.

2. Incredible Statements

¶26 Next, Roberts contends that the CJC interview was
unreliable due to certain incredible statements made by Victim.
He again cites Lenaburg, where the Utah Supreme Court
determined that a child’s recorded testimony was unreliable in
part because of the child’s fantastical statements. 781 P.2d at 436
(concluding that the child victim’s statement could not be
viewed as reliable where the child stated, among other things,
that during the alleged abuse the defendant had a “monster

2. The State filed the initial information six months after the CJC
interview, and it took another three-and-one-half years for the
case to go to trial. During that time period, the State thrice
amended the information, Roberts sought and received several
continuances, and the court heard and resolved a number of
significant pretrial motions.

20150247-CA 9 2018 UT App 9
 State v. Roberts

hand,” that the defendant shot himself and that when he was
“‘just about to die, . . . along came fat Jenny,’” and that
defendant then died and “‘turned back into mommy’” but “‘still
sleeps with a gun’”). Roberts then points to certain of Victim’s
statements, apparently alleging that they are similarly fantastical
and therefore unreliable. For example, he points to Victim’s
statements that Roberts “‘took some scissors and ripped [her]
clothes,’” that Roberts “had her ‘touch his wiener’ for ‘twenty
days with’ ‘a backscratcher or something,’” and that “[the abuse]
happened on a bed with ‘like one hundred pillows.’”

¶27 But in making these assertions, Roberts fails to address
the court’s findings on this issue. The court recognized that,
although an adult might not describe details in the way Victim
did, her statements and descriptions were those “of a six-year-
old” and that they were “consistent” and “appropriate”
responses for a six-year-old child. Thus, a six-year-old child’s
reference to “like a hundred pillows” is a way to describe a large
number of pillows in relative terms, not a carefully calculated
estimate of the literal number of pillows on hand. The court also
determined that, overall, Victim was “sufficiently consistent in
her statements about what she explained occurred” and that
“[a]ny discrepancies in her statements are things that go to the
issue of weight of the evidence which will be left to the Jury.”
Having failed to identify an error in the trial court’s findings,
Roberts has therefore failed to demonstrate that the court did not
appropriately address and resolve any concerns over potential
incredulity in the statements identified.3

3. Roberts also briefly challenges the court’s reliance on Victim’s
familiarity with him, contending that the court did not “explain
why the identity of the defendant made the allegation more
reliable” and asserting that it “cannot be enough that the child
identified the defendant and the defendant had a close
relationship with the child.” But contrary to Roberts’s
suggestion, the court did not base its reliability determination
(continued…)

20150247-CA 10 2018 UT App 9
 State v. Roberts

¶28 In sum, we conclude that the trial court’s findings support
its ultimate determination that, notwithstanding Roberts’s
arguments to the contrary, the CJC interview was reliable under
rule 15.5 of the Utah Rules of Criminal Procedure. We therefore
affirm the court’s admission of the CJC interview.

II. Roberts’s Motion to Strike Social Worker’s Testimony

¶29 Roberts next argues that the trial court erred when it
concluded that Roberts waived his objection to Social Worker’s
testimony because the objection was untimely and, on that basis,
denied his motion to strike. We review this decision for an abuse
of discretion. See State v. Bredehoft, 966 P.2d 285, 290 (Utah Ct.
App. 1998). Alternatively, Roberts argues that if we conclude
that he waived his objection, his trial counsel performed
ineffectively by failing to timely object. After describing the
relevant proceedings at trial, we address each contention below.

A. Trial Proceedings

¶30 During trial, the State called Social Worker, with whom
Victim had undergone therapy following the abuse, to testify.
Over the course of approximately thirty minutes of direct
examination, the State asked Social Worker both factual and
general questions related to her treatment of Victim. In
particular, the State asked Social Worker specific factual
questions about Victim’s use of pictures during their sessions,
Victim’s use of a “support person” in therapy, and Victim’s
specific behaviors that Social Worker was treating. Interspersed
among those factual questions were more general questions not
specific to Victim. For example, the State asked Social Worker to

(…continued)
solely on the nature of Victim’s relationship to Roberts. And
Roberts fails to suggest a legal basis from which we may
discount the weight the court afforded this factor in its overall
reliability analysis.

20150247-CA 11 2018 UT App 9
 State v. Roberts

describe “the process of disclosure” in child sexual abuse
situations, to explain why children might use drawings to “tell
their story,” and to opine on whether the types of behaviors
Victim exhibited were “consistent with sexual abuse.” All of
these questions were asked and answered without objection.

¶31 Near the end of its direct examination, the State asked
Social Worker to explain “the process of memory and forgetting”
and why a child may not remember certain details related to
traumatic events. Roberts objected, arguing that “expertise [had
not] been established with respect to [Social Worker’s] ability to
talk about memory.” The court sustained the objection. The State
attempted to establish foundation by eliciting information about
Social Worker’s education, experience, and background related
to “children’s memory and the process of memory fade.”

¶32 In response, Roberts asked to conduct voir dire of Social
Worker on the issue of memory outside the presence of the jury.
At the conclusion of the voir dire, Roberts argued to the court
that the issue before the court was actually “twofold”: in
addition to the memory issue, he could not recall seeing a notice
of expert witness with respect to Social Worker. The court asked
the State if it had provided “appropriate notice,” and the State
conceded it had not. Roberts then requested that “all [of Social
Worker’s] testimony be stricken, all of it[,] . . . because she’s been
asked a number of times to give expert opinions about this and
that” and that, while “there were things that she talked about
that were factual in nature,” “for the last 15 of 20 minutes what
we’ve heard about is what’s [her] opinion about how kids
behave under these circumstances.”

¶33 The State responded by arguing that Roberts’s objection
was untimely. The court agreed, stating that, with the exception
of the objection on the memory issue, the objection to Social
Worker’s testimony as a whole and the expert opinions was
“waived when [it wasn’t] timely made.” The court observed that
Social Worker had talked about “many” factual things and that,
as to timing, “it’s one thing if there’s a question that goes by”

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 State v. Roberts

and is revisited “in a few minutes.” However, in this case, “too
much time” had gone by with respect to Roberts’s overall
objection, and the court determined that it would not, after “20
minutes or a half hour, go back and, if appropriate, tell the jury
to just forget that.” On the memory issue, however, the court
ruled that it was “too much of a separate area” from the area of
expertise of a licensed clinical social worker. Accordingly, the
court sustained the objection with respect to the memory issue
but it overruled the objection as to the remainder of Social
Worker’s testimony and denied Roberts’s motion to strike it.

B. Roberts’s Arguments on Appeal

1. Waiver of the Objection

¶34 Roberts first argues that the court abused its discretion in
determining that he waived his objection to Social Worker’s
testimony and denying his motion to strike on that basis. We
disagree.

¶35 To begin with, it is axiomatic that objections to evidence
must be timely made. See Utah R. Evid. 103(a) (providing that to
preserve a claim of error regarding the admission of evidence,
the party must, among other things, “timely object[]”); State v.
Johnson, 2017 UT 76, ¶ 16 n.4 (explaining that an issue may be
waived in the trial court if it is not raised “at the required time”);
State v. Emmett, 839 P.2d 781, 783–84 (Utah 1992) (“[O]ur case
law establishes that the doctrine of waiver has application if
defendants fail to raise claims at the appropriate time at the trial
level, so the trial judge has an opportunity to rule on the
issue . . . .”). The need for a timely objection seems particularly
relevant in circumstances such as those present here, where
twenty to thirty minutes of testimony in front of a jury had
elapsed before Roberts’s counsel objected, and where the
potentially objectionable expert testimony was interspersed with
non-objectionable factual testimony. We think it unlikely that the
court exceeded its discretion in concluding that it could not
reasonably review twenty to thirty minutes of testimony and

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 State v. Roberts

selectively tell the jury to disregard the offending portions while
considering the non-offensive ones, and then outline for the jury
which was which. See State v. Velasquez, 672 P.2d 1254, 1265
(Utah 1983) (holding that a later “motion to strike was not an
adequate substitute for an objection” in the case at hand
“because of the close intermingling of the admissible with the
inadmissible evidence” at issue).

¶36 But we need not resolve whether the court exceeded its
discretion in concluding that Roberts waived his objection to the
admission of Social Worker’s testimony, because we are able to
sustain the court’s ruling on another ground—one that was
recognized by Roberts in his motion for a new trial and that the
State has briefed as an alternate ground for affirmance on
appeal. See State v. Butterfield, 2001 UT 59, ¶ 31, 27 P.3d 1133
(“[A]n appellate court may sustain a trial court’s evidentiary
ruling on any available ground . . . .” (citation and internal
quotation marks omitted)). In his motion for a new trial, Roberts
argued that Social Worker’s testimony should have been stricken
because the State failed to provide notice as required under Utah
Code section 77-17-13, which provides the notice requirements
for expert testimony in a criminal case. Roberts recognized that a
continuance was the “mandatory” remedy for a violation of this
section, but he instead requested, for strategic reasons, exclusion
of Social Worker’s entire testimony. The State argues on appeal
that we may affirm because excluding Social Worker’s testimony
was not a remedy available to Roberts under Utah Code section
77-17-13. We agree.

¶37 “The expert witness notification statute,” Utah Code
section 77-17-13, “provides that in a felony case, a party
intending to have an expert testify must give the opposing party
notice as soon as practicable but not less than 30 days before
trial.” State v. Bredehoft, 966 P.2d 285, 294 (Utah Ct. App. 1998)
(citation and internal quotation marks omitted). Section 77-17-13
also sets out the content requirements of the notice and, as
relevant here, the remedies available for a party’s failure to
provide expert notice to the opposing party in a criminal case.

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 State v. Roberts

See Utah Code Ann. § 77-17-13 (LexisNexis 2012). And, as the
State points out, the section provides that excluding the expert’s
testimony is a remedy only if the offending party deliberately
violates the notice requirements outlined in the section. See id.
§ 77-17-13(4). Specifically, subsection (4) provides, with our
emphasis,

(a) If the defendant or the prosecution fails to
substantially comply with the requirements of
this section, the opposing party shall, if
necessary to prevent substantial prejudice, be
entitled to a continuance of the trial or hearing
sufficient to allow preparation to meet the
testimony.

(b) If the court finds that the failure to comply with
this section is the result of bad faith on the part
of any party or attorney, the court shall impose
appropriate sanctions. The remedy of exclusion
of the expert’s testimony will only apply if the
court finds that a party deliberately violated the
provisions of this section.

Id. In other words, the timeliness of Roberts’s objection aside, the
trial court had no discretion to exclude Social Worker’s
testimony absent a finding that the State deliberately violated its
obligation under the statute to identify Social Worker as an
expert witness.

¶38 At oral argument, Roberts contended that two cases—
State v. Bredehoft, 966 P.2d 285 (Utah Ct. App. 1998), and State v.
Begishe, 937 P.2d 527 (Utah Ct. App. 1997)—suggested that,
despite the plain language of the statute, a court could exclude
non-noticed expert testimony without finding that the lack of
notice was deliberate. But Roberts’s reliance on Bredehoft and
Begishe is misplaced. Section 77-17-13(4)(b) was amended in 2003
to add the statutory language at issue here. Specifically, the
express directive limiting the remedy of exclusion of the expert’s

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 State v. Roberts

testimony to only those cases where a party deliberately violates
the statute was added after those cases were decided. Compare
Utah Code Ann. § 77-17-13(3) (Michie 1995), with id. § 77-17-
13(4)(b) (LexisNexis Supp. 2003). Thus, to the extent either
decision suggests that a court retains discretion to exclude
untimely noticed expert testimony even without a finding of bad
faith, they have no application here. This case is governed by the
statute as amended in 2003, which expressly states that the
remedy of exclusion is inapplicable absent a deliberate violation
of the statute. See id. § 77-17-13(4)(b) (LexisNexis 2012).

¶39 Thus, Roberts’s requested remedy—that all of Social
Worker’s testimony be excluded because no notice had been
provided to him that Social Worker would be testifying as an
expert—was not a remedy available to him. Although Roberts
could have asked for a continuance, Roberts did not argue below
that the State’s failure to give notice was deliberate or in bad
faith, and the court made no such finding. As a result, without
more, the most Roberts would have been entitled to under
section 77-17-13 was a continuance, which he—apparently as a
strategic choice—did not request. Cf. State v. Perez, 2002 UT App
211, ¶¶ 39–41, 52 P.3d 451 (holding that a trial court is not
required to sua sponte grant a continuance for a violation of
section 77-17-13 if the affected party does not request one).
Accordingly, we cannot conclude that the trial court exceeded its
discretion when it declined to strike all of Social Worker’s
testimony, because absent evidence of and a finding that the
violation was deliberate, the court did not have discretion to
grant Roberts’s request.4 See Utah Code Ann. § 77-17-13(4)(b).

4. Roberts suggests in his reply brief that the State’s professed
reason for failing to provide notice of Social Worker’s testimony
could have amounted to a deliberate violation of the notice
provision of section 77-17-13(4)(b) and that, if so, “the remedy of
exclusion should apply.” He also contends that, in any event, the
testimony should have been excluded because Social Worker
(continued…)

20150247-CA 16 2018 UT App 9
 State v. Roberts

C. Ineffective Assistance of Counsel

¶40 Finally, Roberts also argues that his trial counsel was
ineffective for not timely objecting to Social Worker’s testimony.
But given our resolution above, we conclude that the timeliness
of his trial counsel’s motion is ultimately irrelevant. Even had
Roberts’s counsel more timely lodged his objection to Social
Worker’s testimony, the remedy to which he would have been

(…continued)
essentially testified that Victim’s story was truthful, that Victim
had been abused, and that Victim’s behaviors conformed with
the profile for sexually abused children—all of which, he
contends, is inadmissible expert testimony under our supreme
court’s decision in State v. Rimmasch, 775 P.2d 388 (Utah 1989).
However, neither contention was presented to the trial
court as a basis to strike Social Worker’s testimony. See 438 Main
St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (“In order to
preserve an issue for appeal, the issue must be presented to the
trial court in such a way that the trial court has an opportunity to
rule on that issue.” (brackets, citation, and internal quotation
marks omitted)). And both contentions involve issues to which
we typically afford significant deference to a trial court. See, e.g.,
State v. Daniels, 2002 UT 2, ¶ 18, 40 P.3d 611 (“Trial courts have
primary responsibility for making determinations of fact and
must be given deference in their factfinding role because they
are in a better position to assess credibility and determine facts
than an appellate court is.”); State v. Sheehan, 2012 UT App 62,
¶ 15, 273 P.3d 417 (stating that “[t]he trial court has wide
discretion in determining the admissibility of expert testimony”
and that “we disturb the [trial] court’s decision to [exclude]
expert testimony only when it exceeds the limits of
reasonability” (third alteration in original) (citation and internal
quotation marks omitted)). As a result, whatever the merits in
these contentions, we decline to address them on appeal for the
first time.

20150247-CA 17 2018 UT App 9
 State v. Roberts

entitled was a continuance for preparatory purposes; Social
Worker’s testimony would still have been admitted.

¶41 In this regard, it is significant that Roberts’s trial counsel
specifically eschewed for tactical reasons the remedy of a
continuance. Roberts’s counsel asserted in his motion for a new
trial that he strategically chose to request exclusion of Social
Worker’s entire testimony “rather than the mandatory remedy”
of a continuance under section 77-17-13 because “the violation
came unexpectedly and in the middle of a trial after the two
alleged victims had testified,” Roberts “had been in jail for
nearly 4 years at the moment the violation occurred,” and “[a]
jury had been selected and the State’s case was nearly over.” On
appeal, Roberts does not contend that counsel’s strategic choice
to request exclusion rather than a continuance constituted
ineffective assistance.5 See Strickland v. Washington, 466 U.S. 668,
689 (1984) (explaining that “scrutiny of counsel’s performance
must be highly deferential” and that “the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy”
(citation and internal quotation marks omitted)); see also State v.
Moore, 2012 UT App 227, ¶¶ 6, 8, 285 P.3d 809 (stating that “[a]n
ineffective assistance of counsel claim will fail if a conceivable
legitimate tactic or strategy can be surmised from counsel’s
actions” and that “[i]t is not appropriate for an appellate court,
in hindsight, to second guess the strategy of defense counsel”

5. In oral argument before this court, Roberts suggested
otherwise. He claimed that he argued both that his counsel was
ineffective for failing to timely object and for failing to request a
continuance. However, in his briefing he articulates his claim
only as “trial counsel’s late objection constitutes ineffective
assistance of counsel.” He does not allege that counsel’s failure
to ask for a particular remedy—a continuance—constituted
ineffective assistance. And to the extent he raises the issue of a
continuance, he does so obliquely and only as speculative proof
in the alternative that the late objection prejudiced him.

20150247-CA 18 2018 UT App 9
 State v. Roberts

(citation and internal quotation marks omitted)). As a result,
Roberts is hard-pressed to demonstrate that his counsel was
ineffective for not making a more timely objection to Social
Worker’s testimony where counsel, for tactical reasons, declined
to request the remedy to which Roberts would have been
entitled. See Strickland, 466 U.S. at 689; cf. Perez, 2002 UT App
211, ¶¶ 39–41 (holding that while a party might have the right to
a continuance to remedy a violation under section 77-17-13, a
party must actually seek that remedy in the event of a violation).
Accordingly, we conclude that his ineffective assistance of
counsel challenge fails.

III. Exclusion of Evidence Relating to Grandfather

¶42 Lastly, Roberts argues that the trial court “erred when it
excluded evidence” under rule 403 of the Utah Rules of Evidence
that Grandfather, a person with whom Victim had at times
stayed, “had a history of sexual abuse.” He contends that the
evidence was sufficiently probative where it fulfilled the “two
important purposes” of suggesting that Victim misidentified
Roberts as her abuser and that Victim’s sexual knowledge came
from sources other than Roberts. We disagree.

¶43 Rule 403 provides that a “court may exclude relevant
evidence if its probative value is substantially outweighed by a
danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Utah R.
Evid. 403. We “will not overturn a trial court’s finding that the
evidence was inadmissible under Rule 403 unless it was beyond
the limits of reasonability.” State v. Alonzo, 932 P.2d 606, 613
(Utah Ct. App. 1997) (brackets, citation, and internal quotation
marks omitted), aff’d, 973 P.2d 975 (Utah 1998).

¶44 During trial, Roberts attempted to question Grandmother
about why she was not “too thrilled” that Victim had spent time
with Grandfather. After the State objected on the grounds of
relevance and undue prejudice, Roberts advised the court that
Grandfather was a registered sex offender who had been

20150247-CA 19 2018 UT App 9
 State v. Roberts

convicted of “five or six counts of sexual abuse of a child.” He
argued that the evidence of Grandfather’s convictions was
relevant and probative because “there’s a question about
identity in addition to whether or not [the abuse alleged by
Victim] happened.” In response, the State argued that the
evidence of Grandfather’s prior crimes was irrelevant to the
ultimate question of whether Roberts abused Victim and pointed
out that “there’s been no evidence whatsoever that
[Grandfather] has been involved other than [that Victim] and
[Victim’s cousin] would go over to the house occasionally.” The
State also argued that it was substantially more prejudicial than
probative to admit this evidence.

¶45 The trial court agreed in part with the State. It found that
the evidence was at least relevant but that the probative value
was “substantially outweighed by the danger of unfair
prejudice” where no evidence suggested that Grandfather was
tied “to any of the allegations in this particular case.” The court
also noted that, even if Grandfather had been convicted of child
sexual abuse, nothing had been presented comparing the
circumstances of those offenses to Victim’s allegations of abuse.
Accordingly, the court sustained the State’s objection.

¶46 We conclude that the court acted within its discretion in
excluding evidence that Grandfather had been convicted of child
sexual abuse. The probative value of the evidence was minimal,
and its prejudicial effect was significant. See State v. Tarrats, 2005
UT 50, ¶¶ 46–47, 122 P.3d 581 (concluding that the court did not
exceed its discretion in excluding the evidence intended to prove
that the rape victim had previously invented a rape claim where
the “probative value [of the evidence was] low” because “the
facts of the two incidents are so attenuated,” and where the
“prejudicial effect [was] substantial,” because the evidence was
likely to confuse the jurors and “lead them to draw improper
inferences . . . that would unfairly impact their assessment of the
issues”). Grandfather was a third party with no apparent
connection to the alleged abuse; as the trial court acknowledged,
even if it was true that Grandfather was a registered sex offender

20150247-CA 20 2018 UT App 9
 State v. Roberts

and had sexually abused a child, there was no record evidence
tying Grandfather to Victim’s allegations or to the ultimate issue
at trial—whether Roberts committed the sexual abuse alleged by
Victim.

¶47 Indeed, the evidence’s lack of a substantive connection to
the case is evident from Roberts’s arguments on appeal. The
primary evidence Roberts relies on to suggest some tie between
Grandfather’s previous convictions and Victim’s allegations is
the fact that Victim stated during her CJC interview that she was
at Grandfather’s house when an incident of abuse occurred. But
Victim quickly self-corrected, stating, “I mean, my dad’s house,”
and neither Victim nor any other witness ever placed
Grandfather near the scene of the abuse. Without more,
Grandfather’s convictions did not have probative value to show
that Victim mistakenly identified Roberts as her abuser or that
Victim’s sexual knowledge may have been acquired from
another source. In these circumstances, we have no trouble
concluding that the evidence of Grandfather’s convictions, if
admitted, would have done little more than confuse or mislead
the jury by clouding the issues actually being tried. See State v.
Martin, 2017 UT 63, ¶ 52 (concluding that the trial court did not
abuse its discretion in excluding the evidence at issue under rule
403 where admitting the evidence “would have required the
[trial] court to subject the jury to time-consuming trials within a
trial on weak and fundamentally unpersuasive evidence that
was highly attenuated from the facts of the case” (citation and
internal quotation marks omitted)). Thus, we are unpersuaded
that the trial court exceeded its discretion in determining that the
potential harm from evidence that Grandfather had been
convicted of child sexual abuse would substantially outweigh its
probative value where the probative value was based on little
more than hollow speculation.

CONCLUSION

¶48 For the foregoing reasons, we affirm the trial court’s
decisions to admit the CJC interview, deny Roberts’s motion to

20150247-CA 21 2018 UT App 9
 State v. Roberts

strike Social Worker’s testimony, and exclude evidence related
to Grandfather’s prior convictions.

20150247-CA 22 2018 UT App 9