State v. Anderson

2020 UT App 135

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
KRISTOPHER ALLEN ANDERSON,
Appellant.

Opinion
No. 20190235-CA
Filed October 1, 2020

Fifth District Court, St. George Department
The Honorable G. Michael Westfall
No. 161501206

Ronald J. Yengich, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee

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

HAGEN, Judge:

¶1 Kristopher Allen Anderson appeals his convictions for
child sodomy and child sexual abuse. On appeal, he raises
multiple issues, most of which were not preserved by his trial
counsel. He argues that the State committed prosecutorial
misconduct by eliciting prejudicial testimony regarding the
impact of the abuse on the victim and by commenting on
Anderson’s failure to return a detective’s phone calls. Further,
Anderson argues that his trial counsel rendered ineffective
assistance by providing the State with his psychosexual
evaluation and by not objecting when the State used Anderson’s
statements to the evaluator for impeachment. He also argues
that the district court plainly erred in allowing the impeachment
or, at minimum, should have admitted the entirety of the
 State v. Anderson

evaluation once the State “opened the door.” He also alleges that
his trial counsel was ineffective for commenting on a failed plea
agreement and failing to advise him of the correct mandatory
minimum sentence. Relatedly, he asserts that because he was not
advised of the correct mandatory minimum sentence, the district
court erred by denying his motion to arrest judgment. Because
Anderson has not established any claims of ineffective assistance
of counsel, plain error, or abuse of discretion, we affirm.

BACKGROUND 1

¶2 Anderson, the victim’s cousin, travelled from Idaho to
visit the victim’s family in St. George, Utah, on June 18, 2016.
The victim’s family did not know in advance that he was
coming. When he arrived at their home unexpectedly, Anderson
asked whether he could stay the night and whether he could
bring beer to drink. The victim’s mother and father agreed.

¶3 The victim and his family lived in a three-bedroom
apartment. The victim’s two older sisters, who were then ages
thirteen and eleven, shared a bedroom. The victim, who was six
years old at the time, typically slept in the same room as his
nineteen-year-old brother. Anderson stayed the night, sleeping
in the boys’ bedroom. Anderson and the two boys stayed up late
playing video games in the boys’ room and did not go to sleep
until after the victim’s parents and two sisters were asleep.
Anderson drank beer throughout the night.

¶4 The next morning, Anderson departed before the others
awoke. When the mother awoke, she found the victim asleep
next to her bed in a pile of laundry. After the mother left for

1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Jones, 2020 UT App 31, n.1, 462 P.3d 372 (cleaned up).

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work, the victim confided in one of his sisters that in the night,
Anderson had pulled down the victim’s pants and underwear
and touched his penis and buttocks. The victim then confided in
his father, telling him the same story.

¶5 After calling the victim’s mother to tell her what had
happened, the victim’s father called Anderson and asked
whether he had done what the victim said he did. Anderson
responded that “he wasn’t sure” and that “he was drunk and
couldn’t remember.” The father testified that Anderson was
“upset,” and that he was “choked up, crying a little bit” during
the phone call.

¶6 Later, the victim’s mother also called Anderson. During
the call, she asked if “he tried to put his penis in [the victim’s]
butt . . . and if he was fondling him.” Anderson first denied that
he had, but after the mother repeated her question, he
responded, “[Y]es.” She then said, “You know what I have to do,
right?” to which he responded, “Yeah, I know.” She told him
that one of them needed to tell Anderson’s mother, and
Anderson stated that he would.

¶7 The victim’s mother and father then took the victim to the
police station to report the crimes. A detective interviewed the
mother and father. The next day, the victim’s parents took the
victim and his two sisters to the Children’s Justice Center.
Because they were all home during the time of the abuse, each
child was interviewed. The following month, the victim’s
parents took him to a pediatrician to be examined, but the
examination did not lead to any specific findings.

¶8 As part of the investigation, a detective called Anderson
to get more information. When Anderson did not answer, the
detective left a voicemail. A few days later, Anderson called back
and left a voicemail for the detective. The detective continued
calling, but Anderson never returned the subsequent phone
calls. In his testimony at trial, Anderson attempted to excuse his

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failure to return the phone calls by explaining that he entered a
sober living facility on June 22 and did not have access to his
phone.

¶9 During trial, the victim testified that on the night of the
abuse, he had slept on the floor in the boys’ room, while
Anderson and his brother slept on the bed. He testified that at
some point during the night, while his brother was asleep,
Anderson got down on the floor next to him and “pulled down
[his] pants and then he pulled down [his] underwear and then
[Anderson] started touching [his] privates.” He testified that
Anderson had also put “his wiener” on “his butt,” was
“wiggling” it, and then told him, “[D]on’t tell.” The victim
testified about disclosing the abuse to his family the next day
and later during his interview at the Children’s Justice Center.

¶10 The State also presented testimony from the victim’s
parents, both sisters, and the brother. Among other things, each
witness detailed changes in the victim’s emotional wellbeing
since the abuse had occurred. Specifically, they all noted that
before the abuse, the victim had been a happy, normal child.
However, family members testified that, since the incident, the
victim had become depressed, scared, and anti-social. The
mother noted that the victim became “angry, very emotional,
very untrusting,” and “would be very sick to his stomach” and
“would wet himself . . . if he knew that he was in a position to
where he had to talk to someone about [the abuse].” She also
testified that the victim had “threatened to kill himself several
times.” The victim’s parents both noted that the victim slept in
their room almost every night after the incident; he had done so
only rarely before. The victim began counseling to help with
these issues. The mother also testified that they had gotten the
victim a service dog.

¶11 Anderson testified at trial. He indicated that he drank
“five or six beers” throughout the night and stayed up playing

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video games with the victim’s brother until he went to sleep at
approximately 4:00 a.m. He testified that he slept between the
victim and the brother on the bed, then awoke at 5:00 a.m., and
left before the others had gotten up. Anderson also testified that
he had been “terrified” by the phone calls from the victim’s
parents and had responded “no” when the mother asked him
whether he had stuck “[his penis] in [the victim’s] butt.” He
testified that when he responded to the mother’s accusation by
saying, “Yeah, okay,” he was agreeing only to call his mother
and get some help, such as “sober living.” Anderson denied
sexually abusing the victim.

¶12 The jury convicted Anderson on one count of child
sodomy and on one count of child sexual abuse. He now
appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 On appeal, Anderson raises five grounds for reversal. He
frames his first two arguments as claims of prosecutorial
misconduct. He argues that the State engaged in prosecutorial
misconduct, first, by eliciting prejudicial testimony about the
long-term impact of Anderson’s crimes on the victim and,
second, by improperly commenting on Anderson’s failure to
return the detective’s phone calls in violation of his Fifth
Amendment right to remain silent. Because his claims are
unpreserved, he argues that his counsel rendered
constitutionally ineffective assistance by failing to object and that
the district court plainly erred in failing to address these
instances of alleged misconduct even in the absence of an
objection. “When a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court ruling
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of
law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587
(cleaned up). “The plain error standard of review requires an

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appellant to show the existence of a harmful error that should
have been obvious to the district court.” State v. Hansen, 2020 UT
App 17, ¶ 10, 460 P.3d 560 (cleaned up).

¶14 Third, Anderson argues that his counsel rendered
ineffective assistance by providing the State with a copy of a
psychosexual evaluation containing information that the State
used to impeach Anderson on cross-examination. We review this
ineffective assistance of counsel claim as a matter of law. Carr,
2014 UT App 227, ¶ 6. Anderson also argues that the district
court plainly erred by allowing the State to impeach him with
certain statements he made to the examining psychologist and
that the district court should have allowed him to admit the
remainder of the evaluation. If preserved, we review the district
court’s evidentiary rulings for an abuse of discretion. State v.
Cegers, 2019 UT App 54, ¶ 17, 440 P.3d 924. Absent an objection,
our review is limited to plain error. Id.

¶15 Fourth, Anderson argues that his trial counsel rendered
ineffective assistance by improperly commenting on a failed plea
agreement, thus implying to the jury that Anderson was guilty.
Again, we determine as a matter of law whether a defendant
was deprived of the effective assistance of counsel. Carr, 2014 UT
App 227, ¶ 6.

¶16 Fifth, Anderson argues that his counsel provided
ineffective assistance by not informing him of the correct
mandatory minimum sentence for child sodomy during the plea
negotiation phase. We review claims of ineffective assistance of
counsel as a matter of law. Id. He also claims that the district
court abused its discretion when it denied his motion to arrest
judgment based on his allegation that he was improperly
advised of the mandatory minimum sentence. We review the
district court’s denial of a motion to arrest judgment for an abuse
of discretion, reviewing “the legal standards applied by the trial

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court in denying such a motion for correctness.” State v. Squires,
2019 UT App 113, ¶ 23, 446 P.3d 581 (cleaned up). 2

ANALYSIS

¶17 Most of Anderson’s challenges on appeal were not raised
through a timely objection in the district court. “When an issue is
not preserved in the trial court, but a party seeks to raise it on
appeal, the party must establish the applicability of one of [the]
exceptions [to preservation] to persuade an appellate court to
reach that issue.” State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443.
These exceptions are plain error, ineffective assistance of
counsel, and exceptional circumstances. See id. Represented by
new counsel on appeal, Anderson argues both ineffective
assistance of his trial counsel and plain error by the district
court.

¶18 “To demonstrate ineffective assistance of counsel, a
defendant must show that his counsel’s performance was
deficient and that the deficient performance prejudiced the
defense.” State v. Alires, 2019 UT App 206, ¶ 16, 455 P.3d 636
(cleaned up); see also Strickland v. Washington, 466 U.S. 668, 687
(1984). “Failure to prove either element defeats the ineffective

2. Anderson also claims that the cumulative impact of these
alleged errors warrants a new trial. However, “under the
cumulative error doctrine, we will reverse only if the cumulative
effect of the several errors undermines our confidence that a fair
trial was had. If the claims are found on appeal to not constitute
error, or the errors are found to be so minor as to result in no
harm, the doctrine will not be applied.” State v. Alfatlawi, 2006
UT App 511, ¶ 52, 153 P.3d 804 (cleaned up). Here, Anderson
has not established that any errors occurred or that any of the
alleged errors resulted in prejudice. Therefore, the cumulative
error doctrine does not apply.

20190235-CA 7 2020 UT App 135
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assistance of counsel claim.” State v. Tapusoa, 2020 UT App 92,
¶ 17, 467 P.3d 912.

¶19 Under the first prong of the test, “we apply the deficiency
standard announced in Strickland and ask whether counsel’s
actions fell below an objective standard of reasonableness.” State
v. Florez, 2020 UT App 76, ¶ 41, 465 P.3d 307 (cleaned up); see also
State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d 871 (stating that courts
“ask whether, in light of all the circumstances, the attorney
performed in an objectively reasonable manner” (cleaned up)). If
counsel undertook the complained-of action for a sound
strategic purpose, then counsel did not perform deficiently. See
State v. Scott, 2020 UT 13, ¶ 35, 462 P.3d 350. However, the
“converse is not true.” Ray, 2020 UT 12, ¶ 34. As our supreme
court has explained, “even where a court cannot conceive of a
sound strategic reason for counsel’s challenged conduct, it does
not automatically follow that counsel was deficient.” Scott, 2020
UT 13, ¶ 36. Instead, “the ultimate question is always whether,
considering all the circumstances, counsel’s acts or omissions
were objectively unreasonable.” Id.

¶20 “In evaluating prejudice under the second part of the test,
we assess whether there exists a reasonable probability that the
case would have had a different outcome had trial counsel not
performed deficiently.” Florez, 2020 UT App 76, ¶ 43. “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. To
determine whether this standard has been met, we “consider the
totality of the evidence before the judge or jury and then ask if
the defendant has met the burden of showing that the decision
reached would reasonably likely have been different absent the
errors.” State v. Garcia, 2017 UT 53, ¶ 28, 424 P.3d 171 (cleaned
up).

¶21 Alternatively, to establish plain error, “a defendant must
show that the district court committed error, that the error

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should have been obvious to the district court, and that the error
prejudiced the defendant by creating a reasonable likelihood of a
less favorable result.” State v. Cegers, 2019 UT App 54, ¶ 22, 440
P.3d 924 (cleaned up). “If any one of these requirements is not
met, plain error is not established.” State v. Diaz-Arevalo, 2008 UT
App 219, ¶ 13, 189 P.3d 85 (cleaned up).

¶22 With these standards in mind, we analyze each of
Anderson’s arguments in turn.

I. Prosecutorial Misconduct Claims

¶23 Anderson contends that the State committed prosecutorial
misconduct when the prosecutor (A) elicited testimony about the
impact of Anderson’s crimes on the victim and (B) commented
on Anderson’s failure to return the detective’s phone calls.
Although Anderson characterizes these claims as “prosecutorial
misconduct,” prosecutorial misconduct is not “a standalone
basis for independent judicial review.” State v. Hummel, 2017 UT
19, ¶ 111, 393 P.3d 314. When a defendant raises a claim of
prosecutorial misconduct on appeal, “the question for our
review is not whether to question the prosecutor’s actions.” Id.
¶ 117. Instead, “[a]ppellate courts review the decisions of lower
courts,” not “the actions of [the prosecutor]—at least not
directly.” Id. ¶ 107. Therefore, when a defendant has raised an
alleged prosecutorial misconduct issue below, we review the
district court’s ruling on that objection or motion. Id. ¶¶ 106–07.
On the other hand, when a defendant fails to raise the issue
before the district court, “the law of preservation controls” and
we review the issue “under established exceptions to the law of
preservation”—namely, plain error, exceptional circumstances,
or ineffective assistance of counsel. Id. ¶ 111.

¶24 Here, Anderson has argued these issues under both the
plain-error and ineffective-assistance-of-counsel exceptions.
Accordingly, “our disposition turns on whether the trial court
plainly erred” by not intervening sua sponte or whether trial

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counsel “rendered ineffective assistance” in failing to object,
move for a mistrial, or seek another appropriate remedy. State v.
Bond, 2015 UT 88, ¶ 30, 361 P.3d 104.

A. Victim Impact Evidence

¶25 Anderson first claims that the prosecution elicited
unfairly prejudicial testimony from the victim and his family
regarding the impact the abuse had on the victim and that the
prosecutor unfairly emphasized that testimony during closing
arguments. Specifically, Anderson argues that the “evidence
served no probative value, but served only to appeal to the jury’s
emotions and solicit an inappropriate emotion[al] response from
the jury.” The challenged evidence includes testimony from the
father, mother, and siblings about the victim’s behavioral
changes since the abuse, how the family has helped him—such
as providing a service dog and taking him to therapy—and
instances of the victim talking about suicide.

¶26 We disagree with Anderson’s assertion that the
behavioral-change evidence had no probative value. The central
issue at trial was whether the abuse ever happened. Changes in a
victim’s behavior, emotional health, and lifestyle can be
circumstantial evidence that the alleged act occurred. 3 For
example, in State v. Cosey, 873 P.2d 1177 (Utah Ct. App. 1994), a
rape case, the district court admitted testimony from the victim’s
mother concerning the victim’s behavior during the two weeks
following the rape. Id. at 1181. The defendant claimed that the

3. When the State asked questions that were not probative of
whether the crimes occurred—such as what the family had done
to try to help the victim and the role of the service dog—trial
counsel did object. Those objections were overruled, but
Anderson has not challenged those evidentiary rulings on
appeal.

20190235-CA 10 2020 UT App 135
 State v. Anderson

testimony “was irrelevant to the central issue of whether the
victim had consented” and that it should have been barred by
rule 403 of the Utah Rules of Evidence because it was
significantly more prejudicial than probative. Id. However, the
State argued that it was relevant to prove the victim had suffered
a traumatic experience. Id. This court held that the testimony
was relevant circumstantial evidence that a traumatic experience
had occurred and that “[a]ny doubts raised by the defense
concerning whether or not the incident caused the change
concern[ed] the weight that should be afforded the evidence, not
its admissibility.” Id. at 1182 (emphasis added). Similarly, the
testimony elicited from the victim’s family members in this case
provided circumstantial evidence to corroborate the victim’s
testimony that the abuse occurred. Trial counsel’s choice to forgo
objecting to this testimony was not unreasonable where the
evidence was probative to the central question at trial.

¶27 On appeal, Anderson suggests that the victim impact
evidence was improper because it was not limited to the
immediate aftermath of the abuse. Even assuming that
objections regarding the relevant timeframe might have
succeeded in narrowing the scope of the testimony, the decision
to forgo such objections did not fall below an objective standard
of reasonableness. Trial counsel is not required to make every
objection that may have merit but can instead pick and choose.
See State v. Hart, 2020 UT App 25, ¶ 29, 460 P.3d 604 (“But just
because counsel can make an objection does not mean counsel
must make an objection to avoid rendering ineffective assistance.
Legal objections are an inherently strategic business.”). In
addition, trial counsel had a legitimate strategic basis for not
objecting to evidence concerning the long-term impact of the
alleged abuse on the victim. Trial counsel cast doubt on the
veracity of the victim’s claims generally by presenting evidence
suggesting that at the time of trial, the victim was well-adjusted
and not suffering from any trauma. For instance, trial counsel
elicited testimony from the victim that he “had so much fun stuff

20190235-CA 11 2020 UT App 135
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that has happened so [he] forgot about [the abuse]” and that he
has a hard time remembering the abuse “because it was a long
time ago, and [he has] so much happy stuff now.” Where there is
a reasonable strategic basis for forgoing an objection, we will not
find deficient performance. See State v. Scott, 2020 UT 13, ¶ 35,
462 P.3d 350. Because trial counsel’s actions were not objectively
unreasonable, Anderson cannot demonstrate that he received
ineffective assistance in this regard.

¶28 Anderson also takes issue with the following statement
made by the prosecutor during closing argument:

You saw the effects. All the children, including the
parents, when they talked about the effects [on the
victim], they talked about how he sleeps with his
mom and dad, about how his anger -- he didn’t
want to go to school, didn’t want to go to
counseling, moody. They talked about the times
when he had explosive diarrhea, wetting his pants,
locking the doors at night. All these effects. The
one that gets me, he talks about hurting himself.
This six -- eight-year-old boy wants to hurt himself
after going through so much trauma. He did not
ask for this to happen to him.

Anderson argues that the prosecutor did not rely on the victim
impact evidence to show that the crime occurred, but rather to
play to the jury’s sympathies. Relying on State v. Campos, 2013
UT App 213, 309 P.3d 1160, he argues that the State’s closing
argument “essentially asked the jury to consider the impact, or
the effect, the abuse had on the child in determining guilt,
instead of whether the elements of the offenses had been
proven.”

¶29 This case is readily distinguishable from Campos. In
Campos, this court determined that the State had committed
prosecutorial misconduct when, during closing remarks, the

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prosecutor stated, “[W]hen you commit a crime like this, when
you gun down your fellow neighbor in the most tragic of ways,
stealing from him his ability to run, his ability to bike, his ability
to walk his daughter down the aisle, when you do something
like that on the streets of our community then you should be
held accountable.” Id. ¶ 48 (cleaned up). This court noted that a
prosecutor is prohibited from “asking jurors to put themselves in
the victim’s place,” suggesting that “the jury has a duty to
protect the victim,” or “referenc[ing] the jury’s societal
obligation” by asking the jury to “base its decision on the impact
of the verdict on society and the criminal justice system rather
than the facts of the case.” Id. ¶ 51 (cleaned up). Importantly, the
statements made in Campos were irrelevant to whether the
defendant committed the crime.

¶30 In contrast to the remarks in Campos, here, the
prosecutor’s reference during closing argument to the victim’s
behavioral changes did not suggest “to the jury that it should
find [Anderson] guilty out of vengeance or sympathy for the
victim rather than based on what the facts and the law
required.” See id. ¶ 52. Instead, the prosecutor suggested that the
effects listed were indicative of trauma and constituted
circumstantial evidence corroborating the victim’s testimony
that the abuse occurred. This argument supported a verdict
based not on sympathy but on evidence that proved the
elements of the crime.

¶31 Anderson has also not shown that the district court
plainly erred by allowing evidence and argument on victim
impact. In our adversarial system, district courts should be
circumspect about interfering in the parties’ strategic decision-
making regarding the admission of evidence. Our supreme court
has stated that a “district court is not required to constantly
survey or second-guess a nonobjecting party’s best interests or
trial strategy and is not expected to intervene in the proceedings
unless the evidence would serve no conceivable strategic

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purpose.” State v. Bedell, 2014 UT 1, ¶ 26, 322 P.3d 697 (cleaned
up). Here, neither the evidence nor the prosecutor’s statements
were so unduly prejudicial that the district court was required to
intervene to preserve the integrity of the trial.

B. Comment on Anderson’s Silence

¶32 Anderson further argues that “the State engaged in
prosecutorial misconduct when it solicited testimony from the
detective that Anderson did not return his phone calls,
improperly commenting on Anderson’s right to remain silent.”
The State elicited testimony from the detective assigned to the
case that he was never able to reach Anderson by phone to speak
about the incident. The detective did acknowledge that
Anderson had called him back at one point and left a voicemail.
But, the detective stated that he tried contacting Anderson again,
and Anderson “never did return [his] phone calls.” During
closing argument, the State referenced this again, stating:

Then the detective, he called numerous times.
Never did he – and then on a – on Monday, he
called him back on Monday, said, “Hey, let me
know.” He never returned his phone call. The
defense argued that why would somebody, you
know, want to call and proclaim their innocence? If
you are being accused of molesting a child, you
better believe you would let everybody know this
did not happen, “I did not do this,” but nothing.
Nothing.

¶33 Anderson argues that the detective’s testimony and the
prosecutor’s comments violated his Fifth Amendment right to
remain silent. See U.S. Const. amd. V. In support of this
argument, he relies on this court’s decisions in State v. Palmer,
860 P.2d 339 (Utah Ct. App. 1993), and State v. Gallup, 2011 UT
App 422, 267 P.3d 289. Anderson appears to contend that, in
light of Palmer and Gallup, the claimed error should have been

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obvious to both his counsel and the district court, supporting his
claims of deficient performance and plain error. However, in his
opening brief, Anderson does not address the impact of the
United States Supreme Court’s subsequent decision in Salinas v.
Texas, 570 U.S. 178 (2013) (plurality opinion), and whether
defendants who have not received Miranda warnings must
expressly invoke their right to remain silent to claim the
protection of the Fifth Amendment at trial.

¶34 This court first considered whether a defendant’s pre-
arrest and pre-Miranda silence could be used against that person
to prove consciousness of guilt in Palmer. The Palmer court noted
that in Doyle v. Ohio, 426 U.S. 610 (1976), the United States
Supreme Court had held that “a prosecutor’s attempt to impeach
a defendant’s testimony by questioning him about his silence
following arrest and receipt of Miranda warnings violated due
process.” Palmer, 860 P.2d at 347. In contrast, where no Miranda
warnings preceded the defendant’s silence, the Supreme Court
had held that the State could constitutionally use the defendant’s
silence to impeach his exculpatory testimony at trial. Id. (citing
Jenkins v. Anderson, 447 U.S. 231 (1980) (pre-arrest silence), and
Fletcher v. Weir, 455 U.S. 603 (1982) (per curiam) (post-arrest
silence)). In other words, before Palmer, it was already well-
established that the use of a suspect’s silence “for impeachment
purposes is constitutional unless the silence was potentially
induced by the government’s delivery of Miranda warnings.” Id.
at 348. But the Supreme Court had not yet addressed whether a
defendant’s pre-Miranda silence could be used by the State in its
case-in-chief.

¶35 The Palmer court held that the State may not introduce
evidence in its case-in-chief that a defendant invoked his right to
remain silent prior to the receipt of Miranda warnings. Id. at 349–
50. The court reasoned that just “because an individual does not
need to be advised of his right to remain silent until he is subject
to a custodial interrogation does not mean he should be

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penalized for invoking that right earlier.” Id. at 349. The court
also expressed concern that allowing such evidence would
incentivize law enforcement to withhold Miranda warnings and
would run contrary to “public policy” and “the spirit of Fifth
Amendment jurisprudence.” Id. The court did not address
whether the defendant had expressly invoked his rights when he
stated that “he just wanted to get some advice” before speaking
to the police or whether his silence alone would have been
sufficient to trigger the protection of the Fifth Amendment. Id. at
346.

¶36 But later, in Gallup, the defendant made no statement that
could be construed as invoking his Fifth Amendment right to
remain silent. 2011 UT App 422, ¶ 4. The State admitted
evidence in its case-in-chief that the defendant said nothing and
simply hung up the phone when the investigating officer called
to speak with him. Id. ¶ 6. The defendant argued that he had
exercised his right against self-incrimination by hanging up the
phone and that the State’s reference to his silence violated the
Fifth Amendment. Id. ¶ 13.

¶37 The Gallup court agreed that “the trial court’s admission
of the silence evidence was error,” id. ¶ 18, but declined to reach
the State’s argument that Gallup could not establish a Fifth
Amendment violation because he did not expressly exercise the
privilege against self-incrimination. Id. ¶ 18 n.4. In making this
argument, the State relied on Berghuis v. Thompkins, 560 U.S. 370
(2010), in which the United States Supreme Court held that an
in-custody defendant must “unambiguously” invoke the
privilege to end an interrogation and cannot do so by simply
remaining silent. Id. at 381. The majority noted that “Utah courts
have yet to address the import of Berghuis, and [declined] to use
[Gallup’s] case as an opportunity to do so.” Gallup, 2011 UT App
422, ¶ 18 n.4. The concurring opinion would have rejected the
State’s argument outright because Berghuis addressed only the
issue of “what a custodial suspect must do to end an

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interrogation” and did not speak to whether a noncustodial
suspect must unambiguously invoke his Fifth Amendment right
to remain silent. Id. ¶ 33 (Voros, J., concurring).

¶38 Two years later, the United States Supreme Court
squarely addressed whether a noncustodial defendant’s pre-
Miranda silence is enough to invoke his Fifth Amendment
protection. In Salinas v. Texas, 570 U.S. 178 (2013) (plurality
opinion), the defendant had been called to the police station to
be interviewed and to submit his shotgun for ballistics testing as
part of a murder investigation. Id. at 182. An officer interviewed
Salinas without reading him his Miranda warnings. Id. When the
officer asked him whether the shells recovered from the murder
scene would match his shotgun, Salinas remained silent and
“looked down at the floor, shuffled his feet, bit his bottom lip,
clenched his hands in his lap, and began to tighten up.” Id.
(cleaned up). After a short period of silence, the officer
moved on and continued questioning Salinas. Id. At trial, the
prosecutor used Salinas’s silence and nervous behavior as
evidence of guilt. Id.

¶39 In a plurality decision, the Supreme Court held that the
prosecution’s use of Salinas’s pre-arrest, pre-Miranda silence in
its case-in-chief was permissible, because Salinas had failed to
expressly invoke his privilege against self-incrimination. Id. at
183. The plurality based its decision on long-standing precedent
that this Fifth Amendment right must be unambiguously
invoked. Id. “To prevent the privilege from shielding
information not properly within its scope, we have long held
that a witness who desires the protection of the privilege must
claim it at the time he relies on it.” Id. (cleaned up). “A witness
does not expressly invoke the privilege by standing mute.” Id. at
187. The plurality explained that the Fifth Amendment privilege,
which must be expressly invoked, is distinct from the due
process violation at issue in Doyle. Id. at 188 n.3. Although “due
process prohibits prosecutors from pointing to the fact that a

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 State v. Anderson

defendant was silent after he heard Miranda warnings, . . . that
rule does not apply where a suspect has not received the
warnings’ implicit promise that any silence will not be used
against him.” Id. (cleaned up); see also State v. McCallie, 2016 UT
App 4, ¶ 25, 369 P.3d 103 (explaining that Salinas did not
“abandon or narrow” Doyle). Because Salinas did not invoke the
privilege during his interview, the prosecution did not violate
the Fifth Amendment by using his silence in its case-in-chief.

¶40 Although the plurality opinion only garnered three votes,
the two-member concurrence did not quibble with the
proposition that suspects must unambiguously invoke their
privilege to remain silent. Instead, the concurring justices would
have gone further to hold that, even if Salinas had expressly
invoked the privilege, the State’s use of his precustodial silence
would not violate the Fifth Amendment. Salinas, 570 U.S. at 192
(Thomas, J., concurring). “When a fragmented Court decides a
case and no single rationale explaining the result enjoys the
assent of five Justices, the holding of the Court may be viewed as
that position taken by those Members who concurred in the
judgments on the narrowest grounds.” Marks v. United States, 430
U.S. 188, 193 (1977). “Because the circumstances in which the
plurality opinion deemed prearrest silence to be admissible—i.e.,
when the defendant has not expressly invoked the privilege—is
a logical subset of the concurring opinion’s view that prearrest
silence is admissible regardless of whether the defendant
invoked the privilege, the rule set forth in the plurality opinion
states the holding of the court.” People v. Tom, 331 P.3d 303, 313
(Cal. 2014); see also Ian C. Kerr, Note, Beyond Salinas v. Texas:
Why an Express Invocation Requirement Should Not Apply to
Postarrest Silence, 116 Colum. L. Rev. 489, 532 (2016) (citing
authority for the proposition that the Salinas plurality is the
controlling opinion).

¶41 The State argues that, at minimum, “competent counsel
could conclude that Salinas overruled Palmer and Gallup.”

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 State v. Anderson

Because neither this court nor the Utah Supreme Court has
squarely addressed the impact of Salinas on our precedent, we
agree that counsel could reasonably reach this conclusion. 4
Where Anderson never expressly invoked his Fifth Amendment
right as required by Salinas, it was not objectively unreasonable
for his trial counsel to forgo an objection to the State’s use of his
pre-arrest silence.

¶42 Anderson argues that this case is distinguishable from
Salinas because, under the unique facts of this case, he never had
the opportunity to affirmatively invoke his right to remain silent.
However, Anderson offers no legal support for the proposition
that the right is self-executing under such circumstances. In any
event, trial counsel’s failure to make this argument did not rise
to the level of deficient performance. See State v. Reigelsperger,
2017 UT App 101, ¶ 92, 400 P.3d 1127 (noting that counsel is not
required to “make every novel argument new counsel may later
derive and assert for the first time on appeal” in order to provide
reasonably effective assistance). In light of Salinas, competent
counsel could reasonably conclude that any objection to the

4. In a recent case where a defendant declined to sit for a pre-
arrest police interview, this court cited Palmer and Gallup for the
proposition “that evidence of a defendant’s pre-arrest silence
may not be used at trial ‘to infer [that the] defendant exhibited a
consciousness of guilt.’” State v. Popp, 2019 UT App 173, ¶ 46, 453
P.3d 657 (quoting State v. Palmer, 860 P.2d at 349 (Utah Ct. App.
1993)). However, the Popp court did not address the impact of
Salinas, nor did it consider whether the defendant’s failure to
expressly invoke the privilege was fatal to his argument that the
State’s use of his pre-arrest silence violated the Fifth
Amendment. Instead, the Popp court resolved the issue on the
basis that the State had not used the evidence “in a way that
‘raises the inference that silence equals guilt.’” Id. ¶¶ 46–47
(cleaned up).

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 State v. Anderson

prosecutor’s comments would have been futile. See State v.
Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile
objections does not constitute ineffective assistance of counsel.”).

¶43 Similarly, the district court had no duty to intervene sua
sponte. Under the plain error standard of review, Anderson
must demonstrate not only that an error exists, but also that the
error “should have been obvious to the district court.” Veracity
Networks LLC v. MCG S. LLC, 2019 UT App 53, ¶ 27, 440 P.3d 906
(cleaned up). “To show that the error complained of should have
been obvious to the district court, an appellant must show that
the law governing the error was clear at the time the alleged
error was made.” Id. (cleaned up). As explained above, the law
governing the use of pre-arrest silence was far from clear. Any
error in allowing the use of Anderson’s silence would not have
been obvious to the district court. Thus, Anderson has not
established plain error.

¶44 Because he has not established either ineffective
assistance of counsel or plain error, both of Anderson’s
unpreserved “prosecutorial misconduct” claims fail.

II. Psychosexual Evaluation

¶45 Anderson next contends that his trial counsel provided
ineffective assistance by providing a psychosexual evaluation to
the State without an agreement limiting its use and by failing to
object to the State’s use of the evaluation to impeach Anderson
on cross-examination. He further argues that the State’s use of
Anderson’s statements to the evaluator opened the door to his
use of the entire evaluation.

¶46 Prior to the start of trial, Anderson notified the court that
he intended to call the psychologist who conducted the
evaluation as an expert witness and provided the State with the
expert’s written report. Trial counsel sought to admit this
evidence to show Anderson’s “propensity for physiological

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 State v. Anderson

response to age-appropriate female sexual interactions” and his
“lack of pedophilic interests.”

¶47 In response to Anderson’s notice of expert testimony, the
State moved to “exclude [the expert’s] testimony and the [report]
from consideration by the jury at trial as inadmissible under
Utah Rules of Evidence 401, 403 and 702.” The State provided
the court with a copy of the report. Over Anderson’s objection,
the court granted the State’s motion, finding that the expert’s
opinion as to Anderson’s non-pedophilia was unreliable, and
therefore excluded the evidence under rule 702 of the Utah Rules
of Evidence.

¶48 However, during trial, the State impeached Anderson
with statements he made during the evaluation that had been
included in the expert’s report. Trial counsel did not object. On
re-direct, trial counsel referred to the evaluation, and the State
objected. Trial counsel argued that the State had opened the door
by using the report during cross-examination. The court rejected
Anderson’s argument and sustained the objection.

¶49 Anderson argues that his counsel was ineffective for
providing the State with a copy of the report because the
“evaluation was not favorable for [him] under any reasonable
reading.” Specifically, Anderson contends that the evaluation
was not favorable to him because it contained (1) Anderson’s
“sexual risk classification and his screening scale for
pedophilia,” (2) “inculpatory admissions regarding [Anderson’s]
criminal conduct,” and (3) “a version of the facts that differed
from Anderson’s testimony.” Anderson argues that “no
reasonable attorney would have disclosed the confidential
evaluation to the prosecution.”

¶50 As to the first two categories of potentially damaging
information, Anderson cannot establish prejudice as a result of
the disclosure. The State never introduced Anderson’s sexual
risk classification, his screening scale for pedophilia, or his

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 State v. Anderson

admissions to other crimes. Consequently, even assuming that
divulging such information to the State fell below an objective
standard of reasonable performance, the disclosure did not
prejudice Anderson.

¶51 The State’s use of the evaluation was limited to the third
category of information that Anderson identifies as unfavorable.
Specifically, the State questioned Anderson about his own
inconsistent statements to the psychologist about the details of
the night he spent at the victim’s house. Those statements were
limited to such facts as the amount of alcohol Anderson drank,
the time he went to sleep, and the time he awoke. None of those
statements was obviously inculpatory. They became favorable to
the State only after Anderson testified in an inconsistent manner
at trial. At the time the report was disclosed, reasonable trial
counsel would not have considered Anderson’s statements to be
damaging information. A reasonably competent attorney would
not necessarily anticipate that Anderson would change his story
on the stand, thereby opening himself to impeachment based on
his prior statements to the psychologist.

¶52 Further, trial counsel did not perform deficiently in not
objecting to the State’s use of Anderson’s prior statements found
in the report. “The failure of counsel to make motions or
objections which would be futile if raised does not constitute
ineffective assistance.” State v. Alzaga, 2015 UT App 133, ¶ 73,
352 P.3d 107 (cleaned up). Here, any objection would have been
futile because Anderson’s prior statements were admissible. A
party may cross-examine a witness with that witness’s prior
inconsistent statements. See Utah R. Evid. 613(b). Moreover,
Anderson’s statements were not hearsay because they were
statements of a party opponent. See id. R. 801(d)(2). In addition,
the court’s prior ruling excluding the expert’s testimony did not
preclude the State from using Anderson’s statements referenced
in the report. The court excluded the expert opinion because it
was unreliable under rule 702 of the Utah Rules of Evidence. But

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 State v. Anderson

that ruling had no bearing on whether the State could use
Anderson’s own statements, as opposed to the expert’s
conclusions and opinions. Trial counsel did not perform
deficiently in forgoing a futile objection, and the trial court did
not commit plain error by failing to intervene.

¶53 Similarly, the district court did not abuse its discretion in
refusing to admit the report after the State used it to cross-
examine Anderson. Anderson claimed that the State’s use of the
evaluation opened the door to its contents, and therefore trial
counsel “should have been able to then use the remainder of the
evaluation to his advantage.” However, the State did not open
the door to the expert’s opinions, which the court had already
deemed unreliable. During its cross-examination, the State did
not reference any of the expert’s tests or conclusions. In fact, the
State gave very little detail as to the purpose of Anderson’s
conversation with the psychologist. The district court did not
abuse its discretion in determining that the State’s use of the
report for the limited purpose of highlighting Anderson’s prior
inconsistent statements did not open the door to the introduction
of the entire report. 5

III. Comments on Failed Plea Agreement

¶54 Anderson next argues that his trial counsel provided
ineffective assistance when he “revealed to the jurors in opening
statements that he had tried to resolve the case, but could not,”
which “implied to the jury that Anderson was guilty, since his
counsel had tried to resolve the case.” Anderson claims that
counsel’s statements “alerted the jury to the inadmissible fact

5. Anderson also argues on appeal that the entirety of the report
was admissible under the rule of completeness. See Utah R. Evid.
106. However, Anderson’s trial counsel did not preserve this
issue, and we therefore decline to address it on appeal.

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 State v. Anderson

that Anderson had been attempting to resolve the case, but was
unsuccessful,” and that “the comment had no conceivable
tactical basis but served only to unfairly prejudice Anderson.”

¶55 The absence of a sound strategic reason for counsel’s act
or omission does not automatically establish deficient
performance. See State v. Ray, 2020 UT 12, ¶ 36, 469 P.3d 871. But,
more fundamentally, we disagree with Anderson’s
characterization of his counsel’s comments. During his opening
statement, counsel made the following remarks:

So what we’re going to be looking at over the next
couple of days is whether a crime was committed,
and if so did [Anderson] commit it. Now, he has
heard these allegations and he has said, “I didn’t
do it. I am not guilty. I didn’t do this thing,” and he
has persisted in that declaration of his innocence,
which is his right under the law. We haven’t been
able to resolve that issue, and we’ve tried. All
attorneys try to resolve their cases in a way that
both sides are happy with it, but in these kind of
cases sometimes there’s just no way around it.
Sometimes there’s just no other way than to say,
“Look, I’m – I’m never going to say I did
something I didn’t do. I don’t care how many times
you tell me I’ve done it, I’m not going to admit it
because I’m innocent.” That’s when we have to
have you, our fellow citizens come in and hear the
evidence on both sides as to what people saw,
what people heard, and what people said or did,
and then you make your decision, a factual
decision as to whether a crime has been committed
or not.

¶56 In context, trial counsel did not suggest in opening
statement that Anderson was guilty. There was no reference to

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 State v. Anderson

plea negotiations, a potential guilty plea, or the possibility that
Anderson was guilty but merely exercising his constitutional
right to a trial. To the contrary, counsel’s statement that
Anderson was “never going to say I did something I didn’t do”
was a strong denial of guilt. Including such remarks in the
opening statement was neither objectively deficient nor
prejudicial. Therefore, Anderson has not established ineffective
assistance of counsel.

IV. Incorrect Mandatory Minimum Sentence

¶57 Lastly, Anderson argues that the court abused its
discretion when it denied his motion to arrest judgment
regarding the child sodomy count, because he was not properly
notified of the mandatory minimum sentence for that count.
When Anderson was first charged in 2016, the initial information
stated that the child sodomy count was punishable “by
imprisonment for an indeterminate term of not less than 6, 10, or
15 years, and which may be for life.” He was also charged with
two counts of child sexual abuse. Following the preliminary
hearing, the State filed an amended information, which
eliminated one count of child sexual abuse. Again, the amended
information stated that the child sodomy count carried a 6, 10, or
15-year minimum mandatory. However, the minimum
mandatory for child sodomy is 25 years. Thus, both informations
incorrectly stated the mandatory minimum sentence.

¶58 On the first day of trial, before the jury was empaneled,
the State made a record that it had offered a plea deal to
Anderson and that he had rejected it. The State’s plea offer
would have allowed Anderson to plead guilty to two counts of
sexual abuse of a child, both second-degree felonies. The State
incorrectly noted, “As you – or as the Court’s well aware,
sodomy on a child as a first-degree felony is a mandatory prison
[sentence of] 15 years to life if convicted.” The court then
confirmed with trial counsel that Anderson had rejected the

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 State v. Anderson

offer. Trial counsel stated, “Yes, your Honor, with one
correction. It’s my understanding that sodomy on a child is 25 to
life mandatory, but be that as it may, I have communicated that
offer to him and he has . . . declined that offer, and he wants to
go to trial.” The court asked Anderson whether that was correct,
to which Anderson replied, “[Y]es sir.”

¶59 Following trial, Anderson obtained new counsel, who
discovered the discrepancy in the applicable mandatory
minimum stated in the amended information and moved for an
order arresting judgment as to his child sodomy conviction. The
court denied the motion, acknowledging that a mistake had been
made, but finding that Anderson had been given adequate
notice as to the correct mandatory minimum before trial began
and “had an opportunity at that point to make some point, make
an issue of it.” Now, Anderson contends that the court abused its
discretion when it denied the motion to arrest judgment, and
that trial counsel was ineffective during the plea-bargaining
process.

¶60 In Lafler v. Cooper, 566 U.S. 156 (2012), the United States
Supreme Court held that the Sixth Amendment right to effective
assistance of counsel extends to the plea negotiation phase and
that “if a plea bargain has been offered, a defendant has the right
to effective assistance of counsel in considering whether to
accept it.” Id. at 168. “If that right is denied, prejudice can be
shown if loss of the plea opportunity led to a trial resulting in a
conviction on more serious charges or the imposition of a more
severe sentence.” Id.

¶61 To establish ineffective assistance in the plea negotiation
context, Anderson must first establish “that counsel’s
representation fell below an objective standard of
reasonableness.” Id. at 163 (cleaned up); see also Strickland v.
Washington, 466 U.S. 668, 688 (1984). He then must demonstrate
that “the outcome of the plea process would have been different

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 State v. Anderson

with competent advice.” Lafler, 566 U.S. at 163. Here, this
requires a showing that (1) “but for the ineffective advice of
counsel there is a reasonable probability that the plea offer
would have been presented to the court (i.e., that the defendant
would have accepted the plea and the prosecution would not
have withdrawn it in light of intervening circumstances),” (2)
that “the court would have accepted its terms,” and (3) “that the
conviction or sentence, or both, under the offer’s terms would
have been less severe than under the judgment and sentence that
in fact were imposed.” Id. at 164.

¶62 Anderson cannot make these showings. Anderson has not
pointed to any evidence to suggest that trial counsel
misinformed him of the mandatory minimum sentence he faced
if he did not accept the plea offer. Indeed, the information found
in the record suggests the opposite. As the district court noted,
trial counsel immediately corrected the State’s misstatement of
the mandatory minimum when making a record of Anderson’s
rejection of the plea offer. Although Anderson is correct that
both the State and the court stated the wrong mandatory
minimum, there is nothing in the record to suggest that
Anderson’s counsel was likewise misinformed and advised him
of the incorrect sentence. Therefore, he cannot establish that his
counsel’s assistance during the plea negotiation phase fell below
an objective standard of reasonableness.

¶63 The district court similarly did not abuse its discretion
when it denied Anderson’s motion to arrest judgment. In his
motion to arrest judgment, Anderson argued that his due
process rights had been violated because he was not given
adequate notice of the correct mandatory minimum sentence.
The court, in its oral ruling on the motion, made a factual finding
that although a mistake had been made in the original and
amended informations, Anderson had received notice of the
correct mandatory minimum prior to trial. A “district court’s
factual findings are reviewed deferentially under the clearly

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 State v. Anderson

erroneous standard.” Plaia v. Plaia, 2019 UT App 130, ¶ 10, 450
P.3d 80 (cleaned up). Anderson has not challenged that factual
finding—and for good reason, given the colloquy that occurred
before trial. In light of that factual finding, the district court did
not abuse its discretion when it denied Anderson’s motion to
arrest judgment.

CONCLUSION

¶64 Anderson has not demonstrated that his counsel
performed deficiently or that the district court plainly erred or
exceeded its discretion. Therefore, we affirm.

20190235-CA 28 2020 UT App 135