State v. Garcia

2022 UT App 77

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
CHRISTOPHER GARCIA,
Appellant.

Opinion
No. 20190832-CA
Filed June 24, 2022

Third District Court, Salt Lake Department
The Honorable Adam T. Mow
No. 171906133

Andrea J. Garland and David Finlayson,
Attorneys for Appellant
Sean D. Reyes and John J. Nielsen,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN FORSTER and JUSTICE DIANA
HAGEN concurred. 1

ORME, Judge:

¶1 Christopher Garcia appeals his convictions for aggravated
sexual abuse of a child. He argues that (1) the trial court erred in
admitting evidence of his prior convictions for aggravated sexual
abuse of a child; (2) the court plainly erred when it permitted two
instances of bolstering of the victim’s (Victim) testimony; and

1. Justice Diana Hagen began her work on this case as a judge of
the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on this case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).
 State v. Garcia

(3) the sentencing statute mandating that he serve life in prison
without the possibility of parole because he already had a prior
conviction of a grievous sexual offense is unconstitutional under
both the United States Constitution and the Utah Constitution.
We disagree and affirm Garcia’s convictions.

BACKGROUND 2

¶2 In October 2014, Victim’s mother (Mother) met Garcia on
an online dating website. Mother’s profile on the website
indicated that she had children. A few days after making contact,
the two arranged to meet in person. At their first meeting, Garcia
told Mother that he had been convicted for “a drug deal gone
wrong and kidnapping,” that he had served prison time, and that
he was currently living in a halfway house. The two arranged to
meet again and eventually began a romantic relationship. Mother
then introduced Garcia to her four children, including
nine-year-old Victim.

¶3 Garcia and Mother became engaged two months after their
initial meeting. Approximately two months later, Garcia asked
Mother to be his sponsor because his parents, who had previously
acted as his sponsors, were moving out of state. Mother explained
at trial that a sponsor “takes on the responsibility of . . . babysitting
[Garcia when] he’s in public.” Mother agreed to take on the role,
and as part of the process of Mother becoming Garcia’s sponsor,
Garcia had to explain his previous charges to Mother in the
presence of a therapist.

¶4 In preparation for this step, Garcia revealed to Mother that
he had actually served prison time for raping a nine-year-old girl,

2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

20190832-CA 2 2022 UT App 77
 State v. Garcia

N.B.—and not for “a drug deal gone wrong and kidnapping.” But
he told Mother that what was “on paper” was “not what
happened.” Although he acknowledged having sexual
intercourse with N.B., he stated that “she was more mature for her
age and she came on to him,” that N.B.’s story changed multiple
times, and that he pled guilty to three counts of aggravated sexual
abuse of a child only because the State was “going to try to give
him something worse.” Mother believed Garcia and disregarded
the contrary information she learned in the documents she was
provided and during the meeting with the therapist.

¶5 Mother explained at trial that she knew Garcia, as a
condition of his parole, “was not supposed to be around
children.” Because he was also restricted from being in a romantic
relationship with anyone with minor children, Garcia lied to the
authorities about his relationship with Mother, telling them that
she was his childhood friend and that the two had recently
renewed their friendship. Even so, because Mother was a parent
to minor children, she was informed during the meeting with the
therapist that Garcia was not allowed near her house. Mother
disregarded these restrictions, and Garcia continued to visit her
home every day as he had done previously.

¶6 After Garcia was injured in the summer of 2015 while
riding a bike, he began spending even more time at Mother’s
home. Instead of going to work, he would stay at the home, where
he was frequently alone with Victim while Mother was at work
and while Victim’s older siblings were at their father’s house.
Garcia and Victim frequently watched TV in Mother’s bedroom
on the bed. During that time, Garcia touched Victim’s back and
hair “a lot.” He also “[o]ften” told Victim to turn over on her back
and, both over and under her clothing, he would touch her
stomach with his hands and “move down” to her vagina. His
hands would be “in motion” as he touched both the inside and
outside of her vagina. This made Victim feel “[u]ncomfortable,”
but Garcia would tell her “to get used to it and to be quiet.” Garcia
also frequently touched Victim’s breasts and buttocks both over

20190832-CA 3 2022 UT App 77
 State v. Garcia

and under her clothing. At times, Garcia threatened Victim with
a belt to get her to go to Mother’s bedroom or bribed her “[t]o kiss
and to touch him.” When Victim refused, he forced her to do so
by pushing or pulling her against him.

¶7 Twice, Garcia touched Victim’s vagina with his penis and
tried to insert it into her mouth. Victim recalled at trial that this
first took place while she was watching her favorite TV show,
Criminal Minds. She could not recall any details of the second time
that Garcia did this. Victim did not disclose the sexual abuse to
anyone in her family because Garcia threatened to hurt them if
she did. This abuse continued for two years until Mother and
Garcia ended their relationship.

¶8 Garcia and Mother’s relationship came to an end on Super
Bowl Sunday, 2017. That day, Garcia “mooed at [Mother] like a
cow.” Mother confronted Garcia, and after he laughed at her, she
punched him in the face. Mother then drove off in her vehicle and
Garcia pursued her in another vehicle. Later seeing that he was
“coming at me head-on,” Mother swerved and Garcia
side-swiped her vehicle. Following police intervention, when
Mother received a citation for domestic violence but neither party
was arrested, Mother texted Garcia’s mother, “Your son’s going
to prison.” Despite wanting Garcia incarcerated, she did not
disclose to police that Garcia had violated his parole by being
around children. Garcia left the house that day.

¶9 The next day, while Mother was packing Garcia’s
belongings, she came across the paperwork describing the facts
underlying his prior conviction and began reading. Although she
had previously reviewed the paperwork in preparation for her
meeting with the therapist, she became sick to her stomach and
cried. Mother’s eldest son and daughter asked why she was
crying, and Mother decided to reveal to them the real reason
Garcia had served prison time. She told them that Garcia had been
convicted of raping a nine-year-old girl and not for “[a] drug deal
gone wrong and kidnapping.” Both children became upset, and

20190832-CA 4 2022 UT App 77
 State v. Garcia

her son insisted that they ask Victim—who was asleep in her
bedroom—whether Garcia had sexually abused her.

¶10 While her older children waited outside the bedroom,
Mother entered and woke Victim. Mother then asked Victim
whether Garcia “had ever touched her.” Victim looked “terrified”
and started crying. Mother began repeating, “You’re not in
trouble, this is not your fault but I need to know.” Victim
eventually answered, “Yes,” and began telling Mother of the
sexual abuse she had endured. This conversation lasted between
ten to fifteen minutes, at the end of which Mother told Victim,
“You’re not his only victim, he’s done it before,” but she did not
provide any further details. Following the conversation, Mother
contacted Garcia’s parole officer, who directed her to call the
police. She did so, and a detective then interviewed Victim at the
Children’s Justice Center.

¶11 The State charged Garcia with three counts of aggravated
sexual abuse of a child. Prior to trial, the State provided notice of
its intent to introduce evidence of Garcia’s prior convictions of
aggravated sexual abuse of a child under rule 404(c) of the Utah
Rules of Evidence. Garcia moved to bifurcate the trial so that the
jury would learn of his prior convictions only if it first found him
guilty of the charged crimes and needed to determine, for
sentencing purposes, whether he had a prior conviction of a
grievous sexual offense. Garcia further moved the court to
exclude evidence of his prior convictions under rule 403 of the
Utah Rules of Evidence, arguing that the danger of unfair
prejudice substantially outweighed its probative value because
the acts underlying his prior convictions were too dissimilar to his
alleged acts in the present case.

¶12 Following a hearing, the trial court ruled that the State
could present evidence of Garcia’s prior convictions as part of its
case-in-chief, including the testimony of two prior victims, “as
well as [Garcia’s] prior convictions, sentence, commitment, and
parole history.” The court determined that the risk of unfair

20190832-CA 5 2022 UT App 77
 State v. Garcia

prejudice did not substantially outweigh the probative value
because the evidence was “highly probative” and because a
limiting instruction would mitigate the risk of unfair prejudice.

¶13 At trial, N.B. testified that her older sister started dating
Garcia nineteen years earlier, when N.B. was nine years old. At
the time, N.B. lived with her mother and sister and shared a
bedroom with her sister. Garcia eventually moved in with them
and shared the same bedroom with N.B. and the sister. The three
slept in the same bed initially with the sister in the middle, but at
some point, Garcia began sleeping between the sister and N.B.
N.B. testified that “little by little [Garcia] started making more and
more inappropriate moves” toward her while the sister slept.
Garcia began placing his arm around N.B. and over time began
moving his hand under her shirt and then under her bra. Garcia
progressed to touching N.B.’s vagina, at first over and later under
her underwear. Things escalated even further, with Garcia forcing
N.B. to perform oral sex on him and Garcia inserting his finger
into N.B.’s vagina. Once, while N.B. was sitting on the floor,
Garcia discreetly played with her vagina with his toe while other
family members were nearby.

¶14 N.B. testified that she was home alone with Garcia the first
time he raped her. Sometime between three and five months after
Garcia moved into the house, Garcia told N.B. to go to her
mother’s bedroom where he had laid a towel on the bed. He then
pinned N.B. down on the bed with her hands over her head and,
while N.B. protested, proceeded to rape her vaginally using a
latex glove as an improvised condom. When he finished, he told
N.B. to hurry up and clean herself before the sister returned home.
Garcia raped N.B. other times when the sister was not home and
once while the sister was in the shower.

¶15 The only person to whom N.B. disclosed the sexual abuse
was her best friend, B.M., but she asked her not to tell anyone.
B.M. initially did as N.B. requested, but she eventually disclosed

20190832-CA 6 2022 UT App 77
 State v. Garcia

the abuse after an incident in which Garcia rubbed her breast
during a sleepover at N.B.’s house.

¶16 Toward the end of N.B.’s testimony, the State noted that
she was “getting droopy-eyed and . . . appear[ed] to be really
tired” and asked whether she had taken any medication prior to
testifying. N.B. responded that she had taken Xanax before
coming to court and that she otherwise “wouldn’t have made it”
because she was “having severe panic attacks all morning” at the
prospect of testifying. At another point, N.B. stated that because
Garcia pled guilty in her case, she had not previously needed to
testify against him. N.B. then stated, unprompted, “I was terrified
of this part, so this girl”—referring to Victim—“is strong.”

¶17 B.M. testified next. She explained that she used to
frequently sleep over at N.B.’s house, where she would usually
join N.B., Garcia, and the sister in bed. One time, when B.M. was
twelve years old, she, N.B., and Garcia were watching TV on the
bed. B.M. was sitting at the foot of the bed, N.B. was in the middle,
and Garcia was at the head of the bed. After N.B. had fallen asleep,
Garcia reached around N.B. and began rubbing B.M.’s left breast
over her shirt for “[a] few minutes” and then reached under the
shirt to do the same on her bare skin but did so “more
aggressive[ly].” B.M. stated that he rubbed her breast in a
“circular motion . . . [l]ike you would rub something sexually.”
She “just kind of froze” as he did that. When the movie ended,
N.B. woke up, and they got up from the bed. N.B. was unaware
of what had just transpired.

¶18 A few weeks after this incident, B.M. disclosed Garcia’s
sexual abuse of both her and N.B. to their mothers, which led to
Garcia’s arrest. Garcia then pled guilty to three counts of
aggravated sexual abuse of a child and was sentenced to three
concurrent terms of imprisonment of three years to life.

¶19 The trial court instructed the jury that it could consider the
evidence of Garcia’s prior convictions, “if at all, for the limited

20190832-CA 7 2022 UT App 77
 State v. Garcia

purpose of determining whether [Garcia] had a propensity to
commit the crimes charged in this case” and that it “may not
convict [him] in this case simply because he may have been
convicted of committing some other acts at another time.” The
court read this limiting instruction to the jury three times during
trial: before each of N.B.’s and B.M.’s testimony and during
closing instructions.

¶20 As part of its case-in-chief, the State also called the
detective who interviewed Victim at the Children’s Justice Center
and played a recording of the interview. During the interview,
Victim told the detective that Garcia had “raped another little
girl,” but the detective did not follow up on that comment even
though, as he acknowledged at trial, “That’s something that
would be pretty important to clarify[.]”

¶21 In his defense, Garcia called two experts to testify that
although the detective mostly followed appropriate guidelines,
his interview of Victim was still “fatally flawed.” The expert
witnesses testified that the detective should have followed up on
Victim’s statement that Garcia had raped another little girl and
asked questions to assess the influence Mother and Criminal
Minds may have had on Victim’s account. They also asserted that
Victim’s account was “neither reliable or valid.”

¶22 In rebuttal, the State called its own expert witness (Expert),
who testified that the detective’s interview was proper because “it
was conducted following and utilizing [relevant] guideline[s],
utilizing best practices in forensic interviewing, and that [Victim]
was able to provide narratives of . . . incidents that had occurred
based on her recall memory.” Expert also opined that Victim’s
disclosures during the interview “are reliable based on the
questions that she was asked.” Garcia did not object to this
statement but on cross-examination elicited testimony that, unlike
one of Garcia’s expert witnesses, Expert was not a child
psychologist, and that the detective should have followed up on

20190832-CA 8 2022 UT App 77
 State v. Garcia

several issues during the interview, including Mother’s statement
to Victim that Garcia had raped another girl.

¶23 The jury convicted Garcia on all three counts of aggravated
sexual abuse of a child and later found that he had a prior
conviction for a grievous sexual offense. Based on this finding,
Utah Code section 76-5-404.1(5)(c) required the trial court to
sentence Garcia to life in prison without the possibility of parole
(LWOP). Garcia filed a motion challenging the statute as
unconstitutional under the Eighth Amendment to the United
States Constitution and under Article I, Section 9 of the Utah
Constitution. The court denied Garcia’s motion, holding that
“[r]ather than shocking the moral sense as to what is right and
proper under the circumstances, [Garcia’s] situation shows the
appropriateness of the LWOP sentencing enhancement,” and
sentenced him to LWOP.

¶24 Garcia appeals.

ISSUES AND STANDARDS OF REVIEW

¶25 Garcia raises three issues. First, he argues that the trial
court erred in admitting evidence of his prior convictions under
rule 404(c) of the Utah Rules of Evidence because it was
substantially more prejudicial than probative. See Utah R. Evid.
403. We review a trial court’s evidentiary rulings for an abuse of
discretion. State v. Ring, 2018 UT 19, ¶ 17, 424 P.3d 845. See State v.
Beverly, 2018 UT 60, ¶ 56, 435 P.3d 160 (“Trial courts have wide
discretion in determining relevance, probative value, and
prejudice.”) (quotation simplified). “A district court’s decision to
admit or exclude evidence is only an abuse of discretion if it is
beyond the limits of reasonability.” Ring, 2018 UT 19, ¶ 17
(quotation simplified).

¶26 Second, Garcia argues that the trial court erred in allowing
N.B. and Expert to opine on Victim’s credibility. Because this issue

20190832-CA 9 2022 UT App 77
 State v. Garcia

is not preserved, Garcia asks us to review it for plain error. “To
demonstrate plain error, a defendant must establish that (i) an
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful.” State v. Johnson, 2017 UT 76,
¶ 20, 416 P.3d 443 (quotation simplified). “If any one of these
requirements is not met, plain error is not established.” Id.
(quotation simplified).

¶27 Third, Garcia argues that the LWOP mandate in Utah Code
section 76-5-404.1(5)(c) is unconstitutional. “Whether a statute is
constitutional presents a question of law that we review for
correctness.” South Salt Lake City v. Maese, 2019 UT 58, ¶ 10, 450
P.3d 1092 (quotation simplified). The party challenging a statute
“as unconstitutional bear[s] the burden of demonstrating its
unconstitutionality.” State v. Jones, 2018 UT App 110, ¶ 9, 427 P.3d
538 (quotation simplified). Furthermore, because “sentencing
statutes derive from a variety of often imprecise policy
considerations, . . . we must accord substantial deference to the
prerogatives of legislative power in determining the types and
limits of punishments for crimes.” State v. Houston, 2015 UT 40,
¶ 54, 353 P.3d 55 (quotation simplified). Accordingly, “absent a
showing that a particular punishment is cruelly inhumane or
disproportionate, we are not apt to substitute our judgment for
that of the legislature regarding the wisdom of a particular
punishment or of an entire sentencing scheme.” 3 Id. (quotation
simplified).

3. Garcia also raises a claim of cumulative error. But “because we
conclude that there are no errors to accumulate here, the
cumulative error doctrine is inapplicable in this case.” State v.
Modes, 2020 UT App 136, ¶ 12 n.5, 475 P.3d 153 (quotation
simplified).

20190832-CA 10 2022 UT App 77
 State v. Garcia

ANALYSIS

I. Rule 404(c) Evidence

¶28 Generally, evidence of prior bad acts “is not admissible to
prove a person’s character in order to show that on a particular
occasion the person acted in conformity with the character.” Utah
R. Evid. 404(b)(1). Such evidence may, however, “be admissible
for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident,” id. R. 404(b)(2), subject to limits under rules 402
and 403 of the Utah Rules of Evidence, see State v. Thornton, 2017
UT 9, ¶ 36, 391 P.3d 1016. See also Utah R. Evid. 402 (“Irrelevant
evidence is not admissible.”); id. R. 403 (stating that evidence may
be excluded “if its probative value is substantially outweighed by
a danger of,” among other things, “unfair prejudice”).

¶29 But rule 404(c) of the Utah Rules of Evidence exempts
evidence of prior acts of child molestation from this “exercise of
articulating a non-propensity purpose,” instead allowing such
evidence “even if there is no other plausible or avowed purpose
for such evidence.” State v. Fredrick, 2019 UT App 152, ¶ 42, 450
P.3d 1154. The rule states, “In a criminal case in which a defendant
is accused of child molestation, the court may admit evidence that
the defendant committed any other acts of child molestation to
prove a propensity to commit the crime charged.” Utah R. Evid.
404(c)(1). Because rule 404(c) “addresses evidence that the
defendant committed previous acts of child molestation,” “the
ultimate legal disposition of a previous act of child molestation is
largely irrelevant to whether the evidence is admissible.” State v.
Modes, 2020 UT App 136, ¶ 17, 475 P.3d 153 (emphasis in original).
Additionally, “to meaningfully assess the appropriate weight to
afford such evidence, the fact-finder will need to hear and
consider at least some of the details of the previous acts.” Id. ¶ 18.

¶30 Evidence of prior acts of child molestation admitted under
rule 404(c) is still subject to rule 403’s balancing test. See State v.

20190832-CA 11 2022 UT App 77
 State v. Garcia

Ring, 2018 UT 19, ¶ 28, 424 P.3d 845. Under rule 403, 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. In conducting the balancing test, a court “has
the discretion to consider any relevant factors,” Ring, 2018 UT 19,
¶ 29 (quotation simplified), including but not limited to the
Shickles factors, 4 see State v. Cuttler, 2015 UT 95, ¶¶ 18–19, 367 P.3d
981; id. ¶ 18 (“Courts are bound by the text of rule 403, and it is
unnecessary for courts to evaluate each and every Shickles factor
in every context.”) (quotation simplified); State v. Lintzen, 2015 UT
App 68, ¶ 15, 347 P.3d 433 (“Each [Shickles] factor need not be
considered in every case, but a district court evaluating 404(b) and
404(c) evidence should consider those factors it finds helpful in
assessing the probative value of the evidence.”) (quotation
simplified).

¶31 But unlike evidence admitted under rule 404(b), because
the defendant’s propensity to molest children “is the reason for

4. The Shickles factors are:
the strength of the evidence as to the commission of
the other crime, the similarities between the crimes,
the interval of time that has elapsed between the
crimes, the need for the evidence, the efficacy of
alternative proof, and the degree to which the
evidence probably will rouse the jury to
overmastering hostility.
State v. Shickles, 760 P.2d 291, 295–96 (Utah 1988) (quotation
simplified), abrogated on other grounds by State v. Doporto, 935 P.2d
484 (Utah 1997). However, our Supreme Court has held that “it is
inappropriate for a district court to ever consider” the final factor,
i.e., “whether evidence will lead a jury to overmastering
hostility.” State v. Cuttler, 2015 UT 95, ¶ 20, 367 P.3d 981 (quotation
simplified).

20190832-CA 12 2022 UT App 77
 State v. Garcia

admission” under rule 404(c), propensity does not constitute
unfair prejudice. Lintzen, 2015 UT App 68, ¶ 17 (quotation
simplified). See Fredrick, 2019 UT App 152, ¶ 46 (“[I]n order for
rule 404(c) evidence to be unfairly prejudicial, the defendant must
be able to show something other than the propensity nature of the
evidence that weighs on the prejudice side of the equation.”)
(emphasis in original). Additionally, because “similarities suggest
that [the defendant] had the propensity to commit the alleged
crime,” the probative value of rule 404(c) evidence for purposes
of the rule 403 balancing test increases with the degree of
similarity between the prior acts and the acts for which a
defendant stands accused. Ring, 2018 UT 19, ¶ 30. See Modes, 2020
UT App 136, ¶ 18. Nevertheless, the admission of “inflammatory
details beyond what is necessary or appropriate for [the
fact-finder] to consider” propensity may be unduly prejudicial.
Cuttler, 2015 UT 95, ¶ 27. See Fredrick, 2019 UT App 152, ¶ 46.

¶32 Garcia contends that the trial court exceeded its discretion
when, pursuant to rule 404(c), it admitted evidence of his prior
aggravated sexual abuse convictions because the probative value
of such evidence was substantially outweighed by its risk of
unfair prejudice under rule 403. First, he argues that because
Victim’s testimony about his uncharged sexual acts against her
already “provided propensity evidence,” the testimony of N.B.
and B.M. was substantially less probative than unfairly
prejudicial. 5 Specifically, Garcia asserts that because Victim
testified that he touched her genitals, breasts, and buttocks on
more than three occasions but the State charged him with only

5. The State asserts that this argument is unpreserved. Because we
resolve the merits of the claim in the State’s favor, we need not
address its preservation argument. See State v. Kitches, 2021 UT
App 24, ¶ 28, 484 P.3d 415 (“If the merits of a claim can easily be
resolved in favor of the party asserting that the claim was not
preserved, we readily may opt to do so without addressing
preservation.”) (quotation simplified).

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 State v. Garcia

three counts of aggravated sexual abuse of a child, “the State had
little need for other 404(c) evidence, having cooperative fact
witnesses, expert witnesses, and officers.” In sum, Garcia argues
that in light of Victim’s testimony, N.B.’s and B.M.’s testimony
was “unnecessary, needlessly cumulative, and less probative than
prejudicial.” We disagree. Even accepting Garcia’s premise that
Victim’s testimony that Garcia molested her on more than three
occasions constitutes propensity evidence of child molestation,
the court’s admission of evidence of other prior acts of aggravated
sexual abuse of a child was not needlessly cumulative,
unnecessary, or less probative than Victim’s testimony of other
uncharged acts.

¶33 Evidence of Garcia’s prior acts of sexual abuse against N.B.
and B.M. were arguably more probative of Garcia’s propensity to
molest children than was Victim’s testimony of other uncharged
acts Garcia committed against her. At trial, Garcia challenged
Victim’s credibility on several grounds. For example, he called
two expert witnesses who testified that Mother likely tainted
Victim’s account and that Victim’s testimony was “neither reliable
or valid.” Thus, because Victim’s credibility was at issue, other
evidence of Garcia’s propensity to molest children was
independently probative and was also relevant to corroborate
Victim’s account.

¶34 Additionally, although “the ultimate legal disposition of a
previous act of child molestation is largely irrelevant to whether
the evidence is admissible under rule 404(c),” Modes, 2020 UT App
136, ¶ 17, acts that resulted in conviction certainly carry more
probative weight than allegations that did not lead to prosecution
or that led to a prosecution that resulted in acquittal. Here, Garcia
previously pled guilty to acts of sexual abuse against N.B. and
B.M. This stands in sharp contrast to Victim’s testimony of
Garcia’s additional acts of sexual abuse against her, which largely
hinged on the jury’s evaluation of her credibility. Accordingly,
evidence of Garcia’s convictions was more probative of his
propensity to commit such acts than Victim’s testimony about

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uncharged acts. For these reasons, it was not an abuse of
discretion for the court to admit N.B.’s and B.M.’s testimony in
addition to Victim’s testimony, and the evidence was not
needlessly cumulative.

¶35 Second, Garcia argues that the probative value of his prior
acts of sexual abuse toward N.B. and B.M. was substantially
outweighed by the risk of unfair prejudice because those acts were
dissimilar and more egregious than what Victim alleged. The
differences to which Garcia points are that Garcia abused Victim
when no one else was at home but abused N.B. and B.M. when
others were present in the home; Garcia was not dating a close
family member of B.M.; and Garcia touched B.M. only once.
Concerning egregiousness, and quoting Fredrick, 2019 UT App
152, Garcia argues that N.B.’s testimony that he “made her
participate in oral sex while her sister slept in the same bed,
rubbed her vagina with his toe, and used a latex glove as a
condom, ‘contain[ed] technicolor details, beyond its tendency to
show a propensity for child molestation.’” 6 See id. ¶ 46.

¶36 As discussed above, the probative value of 404(c) evidence
increases with the degree of similarity between the prior and
alleged acts. Ring, 2018 UT 19, ¶ 30. The differences to which
Garcia points are relatively minor, and there are significant
macro-level similarities among the acts Garcia committed against
Victim and those he committed against N.B. and B.M. that

6. Garcia also asserts that B.M.’s testimony that he rubbed her
breast “aggressive[ly]” was more egregious than what Victim
alleged. We disagree with this characterization. Victim testified
that Garcia frequently touched her breasts and buttocks both over
and under her clothing. She also alleged even more egregious acts
such as Garcia rubbing the inside and outside of her vagina,
touching her vagina with his penis, and trying to insert his penis
into her mouth.

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 State v. Garcia

increase the probative value of the evidence concerning N.B. and
B.M.

¶37 Garcia dated a close relative of both Victim and N.B., and
he frequently ordered each young girl into their relative’s
bedroom where he sexually abused them. Beginning when Victim
and N.B. were both nine years old, Garcia touched their breasts,
buttocks, and genitals both over and under their clothes and
digitally penetrated their vaginas. 7 And although Garcia did not
insert his penis into Victim’s mouth and vagina like he did to N.B.,
his penis still touched Victim’s vagina and, on two occasions, he
unsuccessfully attempted to insert his penis into Victim’s mouth.
Thus, both sets of acts were of a relatively similar nature, i.e., they
involved contact of Garcia’s penis to both Victim’s and N.B.’s
mouths and vaginas. Finally, the fact that N.B.’s sister was asleep,
in the shower, or otherwise preoccupied—and not away at work
as was the case with Mother—when Garcia chose to engage in
sexual abuse is an insignificant dissimilarity. In more general
terms, Garcia abused N.B. and Victim, both nine-year-old girls at
the time, when the opportunity presented itself. 8

¶38 And regarding Garcia’s abuse of B.M., the rubbing of her
breast both over and under her clothing was similar to how his
abuse of Victim and N.B. began. The fact that he abused B.M. only
once is immaterial given that he did not have the same access to
B.M. that he did to Victim and to N.B. due to B.M. reporting the
abuse shortly after it occurred, thereby depriving him of the

7. Although Garcia touched N.B.’s vagina with his toe on one
occasion, this still falls within the larger picture of his tendency to
touch Victim’s and N.B.’s vaginas.

8. The same is true for the incident in which Garcia discreetly
touched N.B.’s vagina with his toe while others were in the room.
Although this act was in a less private setting, he was careful to
avoid getting caught and effected this rather brazen touch only
when the attention of others was not focused on the two of them.

20190832-CA 16 2022 UT App 77
 State v. Garcia

further opportunity to abuse her. The fact that Garcia did not date
a close relative of B.M. is likewise an immaterial difference. B.M.
was a close friend of N.B.’s who frequently slept over at N.B.’s
house. Therefore, although he had less access to B.M. than he did
to N.B., B.M. was still a child with whom Garcia found an
opportunity to be in a bedroom and to sexually abuse.

¶39 Thus, Garcia’s abuse of Victim, N.B., and B.M. was
substantially similar on a macro level. Although there were
differences among the three girls’ accounts, these differences were
comparatively minor and were not so drastic as to significantly
detract from the probative value of the 404(c) evidence for
purposes of the 403 balancing test.

¶40 The remaining aspect of N.B.’s testimony of which Garcia
complains is that he used a latex glove as an improvised condom
when he raped her for the first time. This arguably carried the
highest risk of unfair prejudice compared to the rest of N.B.’s and
B.M.’s testimony. However, although Garcia lodged a general
objection to the admission of the 404(c) evidence, following the
court’s ruling that it was admissible, he did not ask the court to
limit N.B.’s testimony to exclude this specific fact on the ground
that it was excessively inflammatory. Accordingly, we balance the
risk of unfair prejudice this fact posed against the probative value
of N.B.’s testimony as a whole. And when considering the highly
probative value of N.B.’s testimony, see supra ¶¶ 33–39, we cannot
say that it was substantially outweighed by the risk of unfair
prejudice, especially given the facts of this case. Throughout the
course of the trial, the jury heard a lot of distressing—but properly
admitted—evidence concerning multiple instances of aggravated
sexual abuse of a child. In the context of hearing evidence of
Garcia’s sexual abuse of three young girls, Garcia’s unorthodox
use of a latex glove as a condom does not stand out as uniquely
inflammatory.

¶41 Additionally, the risk of unfair prejudice was somewhat
mitigated by the court’s limiting instruction to the jury that it

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 State v. Garcia

“may not convict [Garcia] in this case simply because he may have
been convicted of committing some other acts at another time.”
See State v. Balfour, 2018 UT App 79, ¶ 34, 418 P.3d 79 (“Utah courts
have recognized that limiting instructions . . . reduce somewhat
the danger of improper prejudice.”) (quotation simplified); State
v. Toki, 2011 UT App 293, ¶ 34, 263 P.3d 481 (“In the absence of the
appearance of something persuasive to the contrary, we assume
that the jurors were conscientious in performing their duty, and
that they followed the instructions of the court.”) (quotation
simplified). 9 Accordingly, the risk of unfair prejudice was not so
great as to substantially outweigh the probative value of N.B.’s
testimony.

¶42 Lastly, Garcia argues that the probative value of the 404(c)
evidence is limited because fifteen years had passed since his
abuse of N.B. and B.M., and he was therefore “less likely to
reoffend.” “[T]he passing of time, on its own, is not enough to rob
404(c) evidence of its probative value.” State v. Ring, 2018 UT 19,
¶ 30, 424 P.3d 845. In this case, the effects of the passage of time
on the probative value of the 404(c) evidence are lessened even
more so because Garcia spent a majority of the fifteen years in

9. Quoting State v. Wetzel, 868 P.2d 64 (Utah 1993), Garcia asserts
that “curative instructions are not always sufficient to avoid the
potential prejudice to the defendant.” Id. at 69. But “we normally
presume that a jury will follow an instruction . . . unless there is
an overwhelming probability that the jury will be unable to follow
the court’s instructions, and a strong likelihood that the effect of
the evidence would be devastating to the defendant.” State v.
Harmon, 956 P.2d 262, 273 (Utah 1998) (quotation simplified). As
discussed above, because the admission of the testimony
regarding the latex glove was not so unfairly prejudicial as to
substantially outweigh the probative value of the 404(c) evidence,
it follows that the admission of this testimony did not create such
an overwhelming possibility that the jury would disregard the
limiting instruction.

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 State v. Garcia

prison and was living in a halfway house when he met Mother.
Garcia therefore did not have the opportunity to reoffend during
most of those fifteen years. Cf. State v. Cuttler, 2015 UT 95,
¶¶ 28-29, 367 P.3d 981 (stating that the twenty-seven-year time
gap between offenses was less material because “the opportunity
to sexually batter young children in the familial setting often
occurs only generationally and when the opportunity arises”)
(quotation simplified).

¶43 Having taken all of Garcia’s arguments into consideration,
we are not convinced that the court exceeded its “wide discretion
in determining relevance, probative value, and prejudice,” see
State v. Beverly, 2018 UT 60, ¶ 56, 435 P.3d 160 (quotation
simplified), when it determined that the probative value of the
404(c) evidence was not substantially outweighed by the risk of
unfair prejudice.

II. Improper Bolstering

¶44 Garcia claims that the trial court plainly erred when it
permitted two instances of improper bolstering by the State’s
witnesses: first, when N.B. called Victim “strong” for testifying,
and second, when Expert opined that Victim’s “disclosures
[during the interview] are reliable based on the questions that she
was asked.” We hold that neither admission amounted to plain
error.

¶45 “It is the exclusive province of the jury to determine the
credibility of witnesses.” State v. Lewis, 2020 UT App 132, ¶ 21, 475
P.3d 956. In line with this principle, rule 608(a) of the Utah Rules
of Evidence “prohibits any testimony as to a witness’s
truthfulness on a particular occasion.” State v. King, 2010 UT App
396, ¶ 44, 248 P.3d 984 (quotation simplified). But the rule does
not prohibit a witness “from giving testimony from which a jury
could infer the veracity of the witness.” State v. Adams, 2000 UT
42, ¶ 14, 5 P.3d 642. In other words, testimony that does “not

20190832-CA 19 2022 UT App 77
 State v. Garcia

directly address” the veracity of a witness does not violate rule
608(a). Id.

¶46 N.B.’s comment calling Victim “strong” for testifying at
trial—the prospect of which had “terrified” N.B. as a child and
still caused her anxiety as an adult—did not obviously violate rule
608(a) because it did not “directly address” Victim’s veracity at
trial. 10 See id. See also State v. Bair, 2012 UT App 106, ¶ 47 n.10, 275

10. Quoting State v. Rammel, 721 P.2d 498 (Utah 1986), Garcia
contends that N.B.’s unsolicited statement amounted to improper
bolstering because her “opinion ‘invited the jury to draw
inferences about [Victim’s] character based upon [N.B.’s] past
experience with’ Garcia.” See id. at 500. Specifically, he asserts that
“[t]o call [Victim] ‘strong’ for testifying, [N.B.] assumed—and
conveyed to the jury—that [Victim’s] testimony was truthful”
based on her own “personal experience with Garcia.”
In Rammel, the State called a detective to testify as an expert on
a witness’s “capacity for telling the truth.” Id. The witness in
question testified, under a grant of immunity, that he had planned
a robbery with the defendant and driven him away from the scene
of the crime in a getaway car. See id. at 499. But during his first
police interrogation, he denied any involvement in the crime. See
id. The detective testified at trial that it was not “unusual” for
suspects who had been granted immunity to lie during their first
police interrogation. See id. at 500. As relevant here, our Supreme
Court held that the testimony was impermissible because
evidence relating to a witness’s truthfulness “must go to that
individual’s character for veracity” and because it “invited the
jury to draw inferences about [the witness’s] character based upon
[the detective’s] past experience with other suspects.” Id.
(emphasis in original).
Rammel is distinguishable from the case before us for two
reasons. First, the detective’s testimony went directly to the
witness’s veracity—indeed, he was called for the purpose of
(continued…)

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 State v. Garcia

P.3d 1050 (stating that a detective’s testimony was not improper
because he “did not directly comment on [two witnesses’]
veracity, or . . . otherwise directly opine on either person’s
veracity”). Accordingly, the trial court did not commit error, plain
or otherwise, when it permitted this testimony to stand at trial.

¶47 Whether Garcia’s second claim of improper bolstering
violated rule 608(a), however, is less straightforward. But even
assuming, without deciding, that Expert’s statement violated the
rule, we conclude that the court did not plainly err in admitting
the statement because the error was not obvious. Under the plain
error standard of review, an error is obvious if “the law governing
the error was clear or plainly settled at the time the alleged error
was made.” State v. Johnson, 2017 UT 76, ¶ 21, 416 P.3d 443
(quotation simplified).

¶48 In several cases, this court has held that violations of rule
608(a) amount to obvious error. For example, in State v. Cegers,
2019 UT App 54, 440 P.3d 924, we held that the trial court plainly
erred when it permitted a victim’s school counselor to testify that
she did not believe the victim fabricated allegations of sexual
abuse in a scholarship application. Id. ¶ 30. Similarly, in State v.
Hoyt, 806 P.2d 204 (Utah Ct. App. 1991), this court held that “it
was clearly impermissible under [rule] 608(a)” for the trial court
to admit an expert’s testimony that a victim was “truthful in her
allegations” of sexual abuse. Id. at 210–11. And in both State v.

rehabilitating the witness’s character for truthfulness. Id. But as
discussed above, N.B.’s statement calling Victim “strong” did not
go directly to Victim’s veracity. And second, our Supreme Court
took issue with the testimony inviting the jury to base its
evaluation of the witness’s truthfulness on the actions of other
suspects in similar situations. Id. Here, Garcia contends that N.B.
was suggesting to the jury that Victim was truthful because Garcia
had previously sexually abused N.B. This implicates rules 404(c)
and 403—not rule 608(a)—of the Utah Rules of Evidence and, as
discussed in section I, those rules were not violated in this case.

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 State v. Garcia

Bragg, 2013 UT App 282, 317 P.3d 452, and State v. Adams, 955 P.2d
781 (Utah Ct. App. 1998), aff’d, 2000 UT 42, 5 P.3d 642, we held
that it was obvious error for the trial court to allow a detective to
testify that the victim’s account was consistent and did not appear
to be coached. See Bragg, 2013 UT App 282, ¶ 31; Adams, 955 P.2d
at 786.

¶49 But Expert’s statement that Victim’s “disclosures [during
the interview] are reliable based on the questions that she was
asked,” especially considering the context in which the statement
was made, is not obviously in line with these cases. Garcia called
two expert witnesses at trial who opined that the detective’s
interview with Victim at the Children’s Justice Center was
unreliable because it was “fatally flawed.” The State then called
Expert to rebut the testimony of those expert witnesses. Expert’s
testimony focused on the detective’s methodology and on
Expert’s conclusion that the interview was properly conducted. In
that context, Expert opined, with our emphasis, that Victim’s
account during that interview was “reliable based on the questions
that she was asked.” Expert was thus not obviously opining directly
on Victim’s veracity during the interview or on whether she had
been coached. Rather, considering Expert’s focus on
methodology, the trial court could have interpreted Expert’s
statement to mean that the specific questions the detective asked
Victim during the interview did not affect the reliability of or
otherwise taint her answers—and not that Victim’s responses
were inherently believable. 11 Because Expert’s testimony did not

11. It is worth noting that Expert’s alleged impermissible
bolstering of Victim’s testimony was counterbalanced by Garcia’s
own two expert witnesses, who testified that Mother likely
influenced Victim’s account, that the detective’s interview was
“fatally flawed,” and that Victim’s account was “neither reliable
or valid.” Additionally, on cross-examination, Expert
acknowledged that, unlike one of Garcia’s expert witnesses, he
(continued…)

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 State v. Garcia

obviously amount to impermissible bolstering, its admission was
not plain error.

III. Utah Code Section 76-5-404.1(5)(c)

¶50 Our Legislature “has the power to define crimes and to
prescribe punishments, within certain constitutional limits,”
including the Eighth Amendment to the United States
Constitution and Article I, Section 9 of the Utah Constitution. State
v. Bishop, 717 P.2d 261, 263 (Utah 1986). Garcia argues that Utah
Code section 76-5-404.1(5)(c)’s mandate that he be sentenced to
LWOP based on his prior conviction of a grievous sexual offense
violates both limitations.

¶51 The statute provides,

Aggravated sexual abuse of a child is a first degree
felony punishable by a term of imprisonment of . . .
life without parole, if the trier of fact finds that at the
time of the commission of the aggravated sexual
abuse of a child, the defendant was previously
convicted of a grievous sexual offense.

Utah Code Ann. § 76-5-404.1(5)(c) (LexisNexis Supp. 2021). 12 A
“grievous sexual offense” includes, among other things,
convictions for rape, rape of a child, object rape, object rape of a
child, forcible sodomy, sodomy on a child, aggravated sexual

was not a child psychologist. He also conceded that the detective
should have followed up on several issues, including Mother’s
influence on Victim.

12. Because the applicable provisions of the Utah Code in effect at
the relevant time do not materially differ from those in the most
recent printed version of the code, we cite that version for
convenience, notwithstanding recent amendments that have no
bearing on this appeal.

20190832-CA 23 2022 UT App 77
 State v. Garcia

abuse of a child, and aggravated sexual assault. Id. § 76-1-601(8).
We hold that Utah Code section 76-5-404.1(5)(c) violates neither
constitutional limitation on sentencing.

A. Eighth Amendment

¶52 The Eighth Amendment to the United States Constitution
provides, “Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” 13 U.S.
Const. amend. VIII. In other words, it “guarantees individuals the
right not to be subjected to excessive sanctions,” which “flows
from the basic precept of justice that punishment for crime should
be graduated and proportioned to both the offender and the
offense.” Miller v. Alabama, 567 U.S. 460, 469 (2012) (quotation
simplified).

¶53 Criminal punishments are cruel and unusual if they “are
excessive or contravene evolving standards of decency and
human dignity.” State v. Houston, 2015 UT 40, ¶ 54, 353 P.3d 55
(quotation simplified). See State v. Herrera, 1999 UT 64, ¶ 33, 993
P.2d 854 (“A criminal punishment may be cruel and unusual
when it is barbaric, excessive, or disproportional to the offense
committed.”) (quotation simplified). “Only rarely will a
statutorily prescribed punishment be so disproportionate to the
crime that the sentencing statute is unconstitutional.” State v.
Guadarrama, 2015 UT App 77, ¶ 4, 347 P.3d 857 (quotation
simplified). “Indeed, outside the context of capital punishment,
successful challenges based on a proportionality argument are
exceedingly rare.” Id. (quotation simplified).

13. The “cruel and unusual punishments” clause of the Eighth
Amendment is made applicable to the states through the Due
Process Clause of the Fourteenth Amendment. See Louisiana ex rel.
Francis v. Resweber, 329 U.S. 459, 463 (1947); State v. Houston, 2015
UT 40, ¶ 54 n.86, 353 P.3d 55.

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 State v. Garcia

¶54 Garcia argues that Utah Code section 76-5-404.1(5)(c)’s
mandatory sentence of LWOP violates the Eighth Amendment as
applied to him 14 because it “is harsher than sentences imposed in
Utah for more serious crimes” such as aggravated murder, 15

14. Garcia also argues that the statute is unconstitutional on its
face. But because we conclude that the statute withstands his
as-applied challenge, his facial challenge also necessarily fails. See
State v. Herrera, 1999 UT 64, ¶ 4 n.2, 993 P.2d 854 (“A facial
challenge . . . requires the challenger to establish that no set of
circumstances exists under which the statute would be valid.”)
(quotation simplified); id. ¶ 50 (holding that a defendant’s “facial
challenge fails a fortiori” when a court concludes that the
challenged statute is constitutional as applied to the defendant).

15. Aggravated murder is a knowing and intentional homicide
plus an aggravator. See Utah Code Ann. § 76-5-202(1) (LexisNexis
2017). An aggravator can be, among other things, a prior
conviction for rape, rape of a child, object rape, object rape of a
child, forcible sodomy, sodomy on a child, aggravated sexual
abuse of a child, and aggravated sexual assault, see id.
§ 76-5-202(1)(j)(vi)–(xiii), which closely mirrors the crimes
constituting a “grievous sexual offense” as used in Utah Code
section 76-5-404.1(5)(c), see id. § 76-1-601(8) (Supp. 2021).
Aggravated murder is punishable by death, LWOP, or 25 years to
life. See id. §§ 76-5-202(3)(a)–(b); 76-3-206(2)(a) (2017);
76-3-207.7(2)(a). See also id. § 76-3-207 (setting forth the sentencing
procedure for capital aggravated murder).
Under this sentencing scheme, Garcia notes that “someone
convicted of aggravated murder in Utah while having a prior
conviction for a ‘grievous sexual offense’ could receive a sentence
of twenty-five years to life,” whereas LWOP is mandated for a
person convicted of aggravated sexual abuse of a child while
having a prior conviction for a “grievous sexual offense.”
Additionally, a jury (or court, on the defendant’s request) must
(continued…)

20190832-CA 25 2022 UT App 77
 State v. Garcia

because “most neighboring states and many other states do not
mandate LWOP as a sentence for a second conviction for child
sexual assault,” 16 and because the mandatory sentence “is
contrary to evolving standards of decency.” We disagree that
Garcia’s statutorily mandated prison sentence of LWOP amounts
to cruel and unusual punishment on these grounds.

¶55 Because the “sentencing statutes derive from a variety of
often imprecise policy considerations,” Houston, 2015 UT 40, ¶ 54,
and because “legislatures are far better equipped than courts to
balance the competing penal and public interests and to draw the
essentially arbitrary lines between appropriate sentences for
different crimes,” Guadarrama, 2015 UT App 77, ¶ 7 (quotation
simplified), “we must accord substantial deference to the
prerogatives of legislative power in determining the types and
limits of punishments for crimes,” Houston, 2015 UT 40, ¶ 54
(quotation simplified). Accordingly, “absent a showing that a
particular punishment is cruelly inhumane or disproportionate,
we are not apt to substitute our judgment for that of the legislature
regarding the wisdom of a particular punishment or of an entire

consider aggravating and mitigating factors when sentencing a
defendant convicted of capital aggravated murder, see id.
§ 76-3-207, whereas section 76-5-404.1(5)(c) simply mandates
LWOP. Based on this, Garcia argues that although aggravated
murder is a more serious crime than aggravated sexual abuse of a
child, the statutory scheme “implies that [his] guilt could be less
heinous if he had murdered” Victim.

16. The states Garcia identifies are Alabama, Alaska, Arizona,
California, Colorado, Connecticut, Florida, Hawaii, Idaho,
Indiana, Kentucky, Maine, Massachusetts, Mississippi, Nebraska,
New Mexico, New York, North Carolina, North Dakota, Ohio,
Oregon, Rhode Island, South Dakota, Texas, Vermont, and West
Virginia.

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 State v. Garcia

sentencing scheme.” Id. (quotation simplified). The statutory
scheme at issue in this case does not rise to that level.

¶56 Under Utah law, LWOP “is only permitted for the gravest
of offenses.” Id. ¶ 66. And while “murder is more serious than
other crimes,” State v. Bishop, 717 P.2d 261, 269 (Utah 1986), our
Supreme Court has also recognized that “[s]exual abuse of a child
is one of the most heinous crimes recognized by our penal code,”
In re Z.C., 2007 UT 54, ¶ 18, 165 P.3d 1206. See LeBeau v. State, 2014
UT 39, ¶ 50, 337 P.3d 254 (“[S]exual crimes, particularly those
involving children, represent an especially heinous form of bodily
insult.”); Bishop, 717 P.2d at 269 (“Crimes against children are
usually looked upon as more heinous than those committed
against adults[.]”); id. at 270 (holding that severe punishment for
sodomy on a child is “justified by the effects of the crime on the
victims, the prevalence of the crime in society, the defenselessness
of the victims, and the high degree of recidivism by offenders”).
Furthermore, we agree with the State that because “it is not
possible to objectively rank-order each crime by seriousness,”
“[t]he best available source of those aggregate values is . . . the
criminal code itself, which is the collective judgment of the people
as expressed through their representatives in the Legislature.”

¶57 And although Garcia points to several states that do not
mandate LWOP under circumstances similar to this case, he
likewise acknowledges that 22 other states do mandate LWOP in
these circumstances. 17 Indeed, Alabama and Delaware mandate

17. In addition to Utah, the 22 states Garcia identifies that mandate
LWOP under similar circumstances are Arkansas, Delaware,
Georgia, Iowa, Illinois, Kansas, Louisiana, Maryland, Michigan,
Minnesota, Missouri, Montana, Nevada, New Hampshire, New
Jersey, Oklahoma, Pennsylvania, South Carolina, Tennessee,
Washington, Wisconsin, and Wyoming. Additionally, the federal
government mandates LWOP for “[a] person who is convicted of
a Federal sex offense in which a minor is the victim . . . if the
(continued…)

20190832-CA 27 2022 UT App 77
 State v. Garcia

LWOP for some first-time child sex offenders. See Ala. Code
§ 13A-5-6(d) (mandating LWOP for certain sex offenses where the
offender is 21 or older and the victim is six or younger); Del. Code
Ann. tit. 11, § 778(6)(a)(2)(A)–(C) (mandating LWOP for a person
“in a position of trust, authority or supervision” who commits
sexual abuse of a child resulting in certain injuries or who
commits the offenses against three separate victims). This also
undermines Garcia’s contention that mandatory LWOP “is
contrary to the evolving standards of decency,” and all the more
so when that punishment is applied to recidivist child sex
offenders.

¶58 In sum, given the seriousness and heinousness of sexual
crimes against children, although “[i]t may seem odd” to some
that a defendant with a prior conviction of a grievous sexual
offense could potentially serve a lesser sentence for aggravated
murder than for aggravated sexual abuse of a child, 18 Guadarrama,
2015 UT App 77, ¶ 7, this does not amount to a “cruelly inhumane
or disproportionate” punishment in violation of the Eighth
Amendment, Houston, 2015 UT 40, ¶ 54 (quotation simplified).
Indeed, several other states impose similar sentences for child sex
offenders with prior sex offense convictions. See supra note 17. For
this reason, “[i]t is not our role to supplant the Legislature’s
considered judgment,” and “we defer to the Legislature’s
determination regarding the appropriate penalty.” Guadarrama,
2015 UT App 77, ¶ 7.

person has a prior sex conviction in which a minor was the
victim[.]” 18 U.S.C. § 3559(e)(1).

18. However, that same defendant also faces the possibility of
capital punishment for aggravated murder. See Utah Code Ann.
§ 76-3-206(2)(a) (LexisNexis 2017).

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 State v. Garcia

B. Article I, Section 9

¶59 Article I, Section 9 of the Utah Constitution “closely
approximates the language of the Eighth Amendment to the
United States Constitution.” 19 Dexter v. Bosko, 2008 UT 29, ¶ 7, 184
P.3d 592. It states,

Excessive bail shall not be required; excessive fines
shall not be imposed; nor shall cruel and unusual
punishments be inflicted. Persons arrested or
imprisoned shall not be treated with unnecessary
rigor.

Utah Const. art. I, § 9.

¶60 Similar to the Eighth Amendment standard, “a criminal
punishment is cruel and unusual” under Article I, Section 9 “if the
punishment is so disproportionate to the offense committed that
it shocks the moral sense of all reasonable men as to what is right
and proper under the circumstances.” State v. Herrera, 1999 UT 64,
¶ 33, 993 P.2d 854 (quotation simplified). For the same reasons
provided in the context of Garcia’s Eighth Amendment challenge
to Utah Code section 76-5-404.1(5)(c), see supra section III(A), we
likewise hold that Garcia’s statutorily mandated sentence of

19. Our Supreme Court has held that “the last sentence”—often
referred to as the Unnecessary Rigor Clause—“makes section 9
broader than its federal counterpart.” State v. Lafferty, 2001 UT 19,
¶ 73, 20 P.3d 342. Because the Unnecessary Rigor Clause “is
focused on the circumstances and nature of the process and
conditions of confinement, not on the sentence imposed,” State v.
Houston, 2015 UT 40, ¶ 50, 353 P.3d 55 (quotation simplified), it
does not apply to Garcia’s challenge. Instead, because his
challenge “is directed to the sentence imposed,” see Dexter v.
Bosko, 2008 UT 29, ¶ 17, 184 P.3d 592, we base our analysis on the
first sentence of Article I, Section 9, which is very similar to the
language of the Eighth Amendment.

20190832-CA 29 2022 UT App 77
 State v. Garcia

LWOP does not “shock[] the moral sense of all reasonable”
persons, see Herrera, 1999 UT 64, ¶ 33, and therefore does not
violate Article I, Section 9.

CONCLUSION

¶61 The trial court did not err in admitting evidence of Garcia’s
prior convictions of aggravated sexual abuse of a child. It likewise
did not plainly err when it admitted two instances of alleged
impermissible testimony that bolstered Victim’s credibility.
Finally, Garcia’s statutorily mandated sentence of LWOP based
on his prior convictions of aggravated sexual abuse of a child does
not violate the Eighth Amendment to the United States
Constitution or Article I, Section 9, of the Utah Constitution.

¶62 Affirmed.

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