State v. Aguilar

2022 UT App 97

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JESUS AGUILAR JR.,
Appellant.

Opinion
No. 20190980-CA
Filed August 4, 2022

Third District Court, Salt Lake Department
The Honorable Amber M. Mettler
No. 181900112

Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee

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

POHLMAN, Judge:

¶1 Jesus Aguilar Jr. was charged with three counts of
aggravated sexual abuse of a child. A jury found Aguilar guilty
on two counts and acquitted him on the remaining count. He
appeals, raising several claims of district court error and
ineffective assistance of counsel and asking us to remand his case
pursuant to rule 23B of the Utah Rules of Appellate Procedure.
We affirm Aguilar’s convictions and deny his rule 23B motion.
 State v. Aguilar

BACKGROUND 1

¶2 Victoria, 2 the nine-year-old daughter of Aguilar’s
girlfriend, reported to a school counselor (Counselor) that Aguilar
sexually abused her on three different occasions in the previous
three years. First, Victoria alleged that Aguilar made her touch his
penis under his boxers. Second, Victoria reported that Aguilar
touched her buttocks under her clothing. And third, Victoria
claimed that Aguilar made her touch his penis over his clothing.

¶3 Counselor reported the allegations to the Division of Child
and Family Services, and shortly thereafter a detective (Detective)
interviewed Victoria at the Children’s Justice Center (CJC).
Detective then interviewed Aguilar, who had waived his Miranda
rights, and two weeks later, Detective interviewed Victoria again
in response to a concern raised by Victoria’s mother (Mother) that
Victoria’s account may have changed. After interviewing Victoria
a second time, Detective found that her account did not
substantially change.

¶4 Following those interviews, Aguilar was arrested and
charged with three counts of aggravated sexual abuse of a child.
After a preliminary hearing—during which Victoria’s CJC
interviews were introduced into evidence—Aguilar was bound
over to stand trial on all three charges.

¶5 Before trial, the State filed a motion in limine seeking to
preclude the defense from questioning Counselor about the
termination of his employment at the school based on an

1. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly. We present
conflicting evidence only as necessary to understand issues raised
on appeal.” State v. Reigelsperger, 2017 UT App 101, ¶ 2 n.1, 400
P.3d 1127 (cleaned up).

2. A pseudonym.

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allegation that he had inappropriately touched another person—
which termination was subsequently ruled unlawful. The State
argued that the allegation against Counselor by another person
was not relevant and, in any event, should be excluded under rule
403 of the Utah Rules of Evidence. After hearing argument, the
district court agreed with the State and granted the motion.

¶6 The case proceeded to trial, and five witnesses testified
during the State’s case-in-chief: Victoria, Mother, Victoria’s older
brother, Counselor, and Detective. Aguilar’s trial counsel cross-
examined Counselor about, among other things, his lack of
training in interviewing children, and counsel explored the
potential that Victoria’s allegations were the result of improper
interview techniques.

¶7 During its deliberations, the jury sent a note to the judge,
asking the court to clarify which of the three alleged incidents of
sexual abuse corresponded to each of the three charged counts.
Over defense counsel’s objection, the court answered the question
in a written instruction that quoted from the Information’s
description of each count and directed the jury to instructions that
explained the State’s burden to prove each count beyond a
reasonable doubt. The jury subsequently convicted Aguilar on
two counts of aggravated sexual abuse of a child (Counts 1 and 3)
and acquitted him on a third (Count 2).

¶8 Prior to sentencing and after being appointed new counsel,
Aguilar moved for a new trial, asserting that his trial counsel was
constitutionally ineffective. After briefing and oral argument, the
district court denied the motion, concluding that “trial counsel’s
performance was not deficient” and that, even if it had been,
“[Aguilar] was not prejudiced.”

¶9 Aguilar now appeals and asks us to consider claims of
district court and attorney error, as well as a motion for remand
under rule 23B of the Utah Rules of Appellate Procedure.

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 State v. Aguilar

ANALYSIS

I. Motion for a New Trial

¶10 Aguilar first contends that the district court erred in
denying his motion for a new trial. “Ordinarily, we review a
court’s ruling on a motion for a new trial for an abuse of
discretion.” State v. Torres-Orellana, 2021 UT App 74, ¶ 26, 493 P.3d
711, cert. granted, 502 P.3d 268 (Utah 2021). “But when a defendant
moves for a new trial on ineffective assistance of counsel
grounds,” as Aguilar did here, “we apply the standard of review
set forth in Strickland v. Washington, 466 U.S. 668 (1984).” Torres-
Orellana, 2021 UT App 74, ¶ 26. Specifically, we review the district
court’s determinations on “both the performance and prejudice
components of [Strickland’s] ineffectiveness inquiry” 3 for
correctness as “mixed questions of law and fact.” Strickland, 466
U.S. at 698; see also State v. J.A.L., 2011 UT 27, ¶ 20, 262 P.3d 1 (“An
ineffective assistance of counsel claim is a mixed question of law
and fact. We review the trial court’s application of the law to the
facts under a correctness standard.” (cleaned up)).

¶11 In seeking a new trial before the district court, Aguilar
asserted that his trial counsel was constitutionally ineffective in
several ways. Aguilar largely repeats those arguments on appeal,
contending that he should have been granted a new trial because
trial counsel failed to (1) move for a bill of particulars, (2) object to
leading questions asked of Victoria, (3) object to the admission of
certain statements in Aguilar’s recorded interview with police,

3. To prove ineffective assistance of counsel, Aguilar must show
that trial counsel’s performance was deficient in that it “fell below
an objective standard of reasonableness.” See Strickland v.
Washington, 466 U.S. 668, 688 (1984). Aguilar must also show that
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” See id. at 694.

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 State v. Aguilar

and (4) make an effective closing argument. Aguilar also argued
in support of a new trial that the prosecutor committed
misconduct in his closing argument by injecting his opinions
relating to Victoria’s veracity. Aguilar repeats a similar assertion
on appeal, although he reframes it through an ineffective
assistance of counsel lens.

¶12 Aguilar has not shown error by the district court. The
district court considered each of these contentions after hearing
oral argument on a fully briefed motion. In a well-reasoned,
written ruling, the court addressed each argument, concluding
that Aguilar’s counsel was not deficient and, alternatively, that
Aguilar was not prejudiced by counsel’s performance. On appeal,
Aguilar has not addressed the bases for the court’s decision. And
although we review the district court’s decision for correctness,
Aguilar “necessarily must challenge the district court’s . . .
conclusions of law, and he cannot make the same arguments anew
while ignoring the proceedings below that adjudicated the same
issues.” See State v. Newton, 2018 UT App 194, ¶ 20, 437 P.3d 429,
aff’d, 2020 UT 24, 466 P.3d 135. Because Aguilar has not addressed
or even acknowledged the district court’s decision on these issues,
he has not met his burden of persuasion on appeal. See id.; Bad Ass
Coffee Co. of Hawaii Inc. v. Royal Aloha Int’l LLC, 2020 UT App 122,
¶ 55, 473 P.3d 624 (“Appeals are not do-overs. They are
opportunities to correct error. . . . And [appellants] cannot
persuade us that the district court erred without addressing the
district court’s decision on its own terms.” (cleaned up)).

II. Motion in Limine

¶13 Aguilar next asserts that the district court erred in granting
the State’s motion in limine. 4 We “afford district courts a great

4. Aguilar includes this argument as part of his challenge to the
district court’s denial of his new trial motion. But the motion in
(continued…)

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 State v. Aguilar

deal of discretion in determining whether to admit or exclude
evidence and will not overturn an evidentiary ruling absent an
abuse of discretion.” State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981
(cleaned up). We will discern an abuse of discretion where the
court applies the wrong legal standard in assessing the
admissibility of evidence or where the court’s “decision to admit
or exclude evidence is beyond the limits of reasonability.” Id.
(cleaned up). Further, we will not reverse an erroneous decision
to exclude evidence unless the error is harmful. See State v. Boyd,
2001 UT 30, ¶ 40, 25 P.3d 985 (“Even should we find such error [in
the exclusion of evidence], we will only reverse if . . . absent the
error there is a reasonable likelihood of an outcome more
favorable to the defendant.” (cleaned up)).

¶14 Before trial, the State filed a motion in limine seeking
to preclude questioning regarding the temporary termination
of Counselor’s employment after another person alleged
that Counselor had “inappropriately touched them.” Counselor’s
employment was terminated, but after an investigation and
screening by the district attorney’s office, Counselor was
not charged and his employment was reinstated after a
finding that he had been unlawfully discharged. The
State challenged the relevance of the circumstances
surrounding Counselor’s termination and alternatively
argued that the evidence should be excluded under rule 403 of
the Utah Rules of Evidence. After hearing argument on
the motion, the district court found that the evidence was
not relevant under rule 401 of the Utah Rules of Evidence,
rejecting Aguilar’s argument that the evidence was probative
of truthfulness, bias, or motive. The court also explained
that “even assuming there is some sort of probative value of
the evidence,” “it should be excluded under [rule] 403” because

limine was argued and decided separately from the new trial
motion. We therefore analyze it separately.

20190980-CA 6 2022 UT App 97
 State v. Aguilar

it could become “a mini-trial,” “confuse the issues,” “result in
delay,” and “wast[e] time.”

¶15 Aguilar contends that the district court erred in granting
the State’s motion in limine. He argues that (1) Counselor’s
interview with Victoria “had the potential of tainting the story
that [she] was telling,” and thus Counselor’s “background and his
own sexual proclivities were of importance and highly relevant”;
(2) the probative value of the evidence “far outweigh[ed]” the
dangers of confusion or of wasting time; and (3) the court’s
alleged error was harmful. We disagree on all three counts.

¶16 First, Aguilar has not shown that the district court’s “ruling
on the relevancy of the excluded evidence was unreasonable.” See
State v. Bernards, 2007 UT App 238, ¶ 20, 166 P.3d 626. Evidence is
relevant if it makes a fact of consequence “more or less probable
than it would be without the evidence.” Utah R. Evid. 401. But
Aguilar does not explain how an allegation against Counselor
created any bias or prejudice. “[B]ias is usually defined as an
interest in the outcome of the case or a personal connection to the
crime being prosecuted.” State v. Kan Ting Fung, 907 P.2d 1192,
1195 (Utah Ct. App. 1995). Even if the allegation had been proven
true, Aguilar has not shown how the allegation by another
person—leveled after Counselor met with Victoria—would have
caused him to have a personal interest in the outcome of this case.

¶17 Second, Aguilar has not shown that the district court
abused its discretion in weighing the probative value of the
evidence against the danger of confusing the issues or wasting
time. No charges against Counselor were ever brought, and his
employment at the school was ultimately reinstated following an
investigation. Had Aguilar been allowed to ask Counselor about
the allegations and his temporary termination, the State surely
would have responded by introducing evidence that an
investigation was conducted, that no charges were filed, and that
Counselor’s employment was reinstated after it was found that he

20190980-CA 7 2022 UT App 97
 State v. Aguilar

was unlawfully discharged. Thus, we agree with the State that
“even if the evidence had some probative value, the danger of
confusing the issues and needlessly wasting time substantially
outweighed any probative value the evidence had.” See Utah R.
Evid. 403 (giving discretion to the district court to “exclude
relevant evidence if its probative value is substantially
outweighed by a danger of,” among other things, confusing the
issues, undue delay, or wasting time).

¶18 Third, Aguilar’s claim fails for the additional reason that
the exclusion of the evidence was harmless. Even if the evidence
of the allegation had been admitted, any effect it had on the jury
would have been blunted by, among other things, the fact that no
charges were filed against Counselor and his job was reinstated.
Further, Counselor’s testimony on direct was limited, and Aguilar
has not shown that the jury would have been reasonably likely to
disbelieve Victoria’s own testimony about the abuse as the result
of an unproven allegation against Counselor.

III. Alleged Errors Relating to the District Court’s Response to
the Jury’s Question

¶19 During deliberations, the jury asked the district court to
clarify which of three alleged incidents of sexual abuse
corresponded to each of the three charged counts. Over defense
counsel’s objection, the court responded with the following
written instruction: “As alleged in and taken directly from the
Information filed by the State: Count 1: ‘To Wit: Hand/Penis
contact first time,’ Count 2: ‘To Wit: Hand/Buttocks contact,’
Count 3: ‘To Wit: Hand/Penis contact over the clothes.’” The court
also referred the jury to instructions 22 and 42 5 and reminded the
jury that it had “been given all the evidence.”

5. Instruction 22 advised the jury that Aguilar was presumed
innocent and that it was the State’s burden to prove Aguilar’s
(continued…)

20190980-CA 8 2022 UT App 97
 State v. Aguilar

¶20 Aguilar contends that the district court committed error in
responding to the jury’s request for clarification. 6 Specifically, he
argues that the court prejudiced him by improperly commenting
on the evidence in violation of rule 19(f) of the Utah Rules of
Criminal Procedure. Because Aguilar’s challenge to the court’s
supplemental jury instruction presents a question of law, we
review it for correctness. See State v. Gollaher, 2020 UT App 131,
¶ 20, 474 P.3d 1018. Relatedly, Aguilar argues that the court
committed structural error based on his claim that in responding
to the jury’s question, the court spoke to the jury outside the
presence of Aguilar and his counsel. This claim is unpreserved,
but Aguilar appears to request that we review it under the rubric
of plain error. We conclude that neither challenge has merit.

¶21 First, we discern no error in the supplemental instruction
given in response to the jury’s question. Rule 19(f) of the Utah
Rules of Criminal Procedure states that “[t]he court shall not
comment on the evidence in the case, and if the court refers to any
of the evidence, it shall instruct the jury that they are the exclusive
judges of all questions of fact.” But the court did not mention any
evidence—much less comment on it—in response to the jury’s
inquiry. Rather, the court merely repeated the State’s limited
description of the three instances of alleged abuse, exactly as it
was set forth in the Information, and it identified which of those
instances aligned with each of the enumerated counts. 7 Such a

guilt beyond a reasonable doubt. Instruction 42 advised the jury
to consider each charge separately.

6. Although Aguilar includes this contention in the section of his
brief challenging the denial of his new trial motion, we address it
separately because the issue was not raised in that motion.

7. The court had previously instructed the jury that the
Information was “not evidence of anything” and that it was “only
a method of accusing a defendant of a crime.”

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limited instruction does not run afoul of rule 19(f). See, e.g., State
v. Salgado, 2018 UT App 139, ¶ 38, 427 P.3d 1228 (explaining that
a jury instruction may amount to an improper comment on the
evidence where the court emphasizes certain evidence, comments
on the weight of the evidence, or comments on the merits of the
case in a way that indicates a preference toward one party); State
v. Maama, 2015 UT App 235, ¶¶ 20–21, 359 P.3d 1272 (explaining
that rule 19(f) forbids a judge from telling the jury what the
evidence is and from opining on the credibility of evidence or on
disputed issues of fact).

¶22 Second, Aguilar argues that in providing the supplemental
instruction, the court “apparently spoke” to the jury without
Aguilar and his counsel present. As we understand it, Aguilar
contends that because the record does not expressly state how the
supplemental jury instruction was given to the jury, the substance
of the instruction might have been verbally delivered to the jury
without him there. Aguilar asserts that such contact would
constitute structural error and this court would be “obliged to
reverse.” We disagree for two reasons.

¶23 To begin, the premise of Aguilar’s argument is unfounded.
The transcript of the court’s exchange with counsel reflects that
the court typed the supplemental instruction in response to the
jury question, the typewritten instruction is found in the record,
and the minutes state that the court “is answering [the] jury
question . . . as stated on the record.” There is nothing in the record
to suggest that the jury was not instructed through the
typewritten instruction, and Aguilar’s claim that the court spoke
to the jury outside his presence is mere speculation. Because we
must presume the regularity of the court’s proceedings in the
absence of contrary evidence, Aguilar cannot establish error. See
State v. Hummel, 2017 UT 19, ¶ 82, 393 P.3d 314 (“Uncertainty . . .
is not a basis for reversal. Uncertainty counts against the
appellant, who bears the burden of proof on appeal, and must
overcome a presumption of regularity as to the record and

20190980-CA 10 2022 UT App 97
 State v. Aguilar

decision in the trial court. Thus, a lack of certainty in the record
does not lead to a reversal and new trial; it leads to an affirmance
on the ground that the appellant cannot carry his burden of
proof.” (cleaned up)).

¶24 Further, even assuming Aguilar could establish that the
court verbally delivered the supplemental instruction to the jury
outside his presence, and that such a communication constitutes
a structural error, Aguilar has not engaged in the necessary
analysis to prove his claim. Contrary to his suggestion, a claim of
structural error requires a showing of prejudice if asserted
through the framework of plain error. See State v. Bond, 2015 UT
88, ¶ 42, 361 P.3d 104; State v. Sagal, 2019 UT App 95, ¶¶ 24–25
& n.3, 444 P.3d 572. In other words, Aguilar still bears the burden
to show that “absent the error, there is a reasonable likelihood of
a more favorable outcome for [him].” See Bond, 2015 UT 88, ¶ 49
(cleaned up). Aguilar has not made this showing. He has not
suggested that it is reasonably likely the result of this case would
have been different had the court not verbally instructed the jury
(again, even assuming it did). Accordingly, his claim fails.

IV. Alleged Ineffective Assistance of Counsel

¶25 Aguilar raises two claims of ineffective assistance of
counsel relating to evidence elicited during Detective’s direct
examination at trial. “An ineffective assistance of counsel claim
raised for the first time on appeal presents a question of law.” State
v. Ott, 2010 UT 1, ¶ 16, 247 P.3d 344 (cleaned up). To succeed,
Aguilar must show both deficient performance and prejudice. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). Aguilar has not
met his burden on either claim.

¶26 First, Aguilar contends that his trial counsel was
constitutionally ineffective for not objecting to testimony elicited
from Detective regarding her CJC interviews of Victoria.
Referring to two separate CJC interviews conducted two weeks
apart, the State asked Detective if “there [was] anything from that

20190980-CA 11 2022 UT App 97
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first interview to that second interview that changed
substantially?” Detective responded, “No.” Aguilar argues that
trial counsel “should have objected to the question, which was
leading, and requested [Detective’s] testimony [be] stricken and
the jury admonished to disregard her response.” Aguilar further
argues that Detective testified as an expert in violation of rule 702
of the Utah Rules of Evidence and improperly testified as to
Victoria’s “mental state” in violation of rule 704(b).

¶27 This claim fails on the deficient performance prong
because other than reciting the rules, Aguilar has not engaged in
any analysis to show that the question was leading, that the
answer constituted “[s]cientific, technical, or other specialized
knowledge” that would invite the application of rule 702, see Utah
R. Evid. 702(b), or that the testimony violated rule 704(b), which
applies to opinions about criminal defendants, see id. R. 704(b) (“In
a criminal case, an expert witness must not state an opinion about
whether the defendant did or did not have a mental state or
condition that constitutes an element of the crime charged or of a
defense.”). Without this analysis, Aguilar cannot demonstrate
that it was objectively unreasonable for counsel not to object on
the bases he identifies. See State v. Makaya, 2020 UT App 152, ¶ 9,
476 P.3d 1025 (“[T]he failure of counsel to make motions or
objections which would be futile if raised does not constitute
ineffective assistance.” (cleaned up)).

¶28 Second, during Detective’s direct examination, the State
played portions of her interview of Aguilar. In one exchange,
Detective stated, “[W]hile you’re in there, you’ll probably just be
served at the jail,” referring to a protective order that Aguilar’s
family was going to obtain. Aguilar responded, “Okay,” and
Detective said, “Violated.” Aguilar argues that trial counsel
performed ineffectively by not objecting to the evidence, claiming
that the reference to “violated” would have suggested to the jury
that Aguilar “had a prior federal conviction, and probably for a
sex related crime.” We disagree.

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 State v. Aguilar

¶29 Counsel could reasonably decide that a jury would not
understand Detective to be referring to a prior conviction for a sex
crime or, at the very least, that the passing remark was vague
enough that it did not warrant an objection that would draw
additional attention to the issue. Thus, because trial counsel’s
actions could constitute reasonable trial strategy, Aguilar cannot
show deficient performance. 8 See State v. Harper, 2006 UT App 178,
¶¶ 23–25, 136 P.3d 1261 (rejecting an ineffective assistance of
counsel claim on the deficient performance prong because
“counsel may reasonably have believed it ill-advised to call undue
attention to the unanticipated testimony”).

V. Cumulative Error

¶30 Aguilar requests that we reverse his convictions under the
cumulative error doctrine. Under that doctrine, we will reverse
“only if the cumulative effect of the several errors undermines our
confidence that a fair trial was had.” State v. Martinez-Castellanos,
2018 UT 46, ¶ 39, 428 P.3d 1038 (cleaned up). Because there are no

8. In his motion for a new trial, Aguilar asserted that his trial
counsel was ineffective for not objecting to three other statements
from Aguilar’s interview that played during Detective’s direct
examination. See supra ¶ 11. To the extent Aguilar now argues that
counsel was ineffective for not including the “violated” remark in
the motion for a new trial, Aguilar has not shown that it is
reasonably likely that the district court would have granted a new
trial had the additional remark been included. The court
previously determined that counsel acted reasonably in choosing
not to “call undue attention” to the “brief statements,” and that
no reasonable juror would conclude that Aguilar had a prior sex
conviction based on the passing remarks. Aguilar has not
suggested any basis on which we could conclude that the addition
of the “violated” remark would have altered the court’s
conclusion.

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errors to accumulate in this case, the doctrine does not apply. See
State v. Gonzales, 2005 UT 72, ¶ 74, 125 P.3d 878.

VI. Motion for Rule 23B Remand

¶31 Pursuant to rule 23B of the Utah Rules of Appellate
Procedure, Aguilar asks us to remand his case to the district court
to supplement the record with facts that he contends support
additional ineffective assistance of counsel claims. “Rule 23B
allows this court to remand a criminal case to the trial court for
entry of findings of fact, necessary for the appellate court’s
determination of a claim of ineffective assistance of counsel.” State
v. Powell, 2020 UT App 63, ¶ 11, 463 P.3d 705 (cleaned up). This
court will grant a rule 23B motion to remand “only upon a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.” See Utah R. App. P. 23B(a). If
Aguilar cannot “meet the test for ineffective assistance of counsel,
even if his new factual allegations were true, there is no reason to
remand the case, and we should deny the motion.” See State v.
Griffin, 2015 UT 18, ¶ 20, 441 P.3d 1166. Because we conclude that
Aguilar has not satisfied this standard, we deny his motion.

A. Jury Voir Dire

¶32 Aguilar first asserts that his trial counsel was “ineffective
for failing to voir dire the prospective jurors for possible racial
bias and to move to strike the jury panel as not being a fair cross-
section of the community.” 9 He seeks a remand to permit the
district court to determine whether there was “a violation of the
jury selection act” and “to ferret out the emotional bent of the jury
toward persons of another race and color.” Although we are
sensitive to Aguilar’s generalized concerns about systemic racism,

9. Aguilar raised this issue in his principal brief but ultimately
agreed that it was dependent on facts not in the record and should
be considered as part of his rule 23B motion.

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Aguilar has not demonstrated that remand under rule 23B is
warranted.

¶33 First, regarding his claim that counsel was ineffective for
not questioning the prospective jurors regarding potential racial
bias, our supreme court has held that when a defendant claims
attorney ineffectiveness for not investigating potentially biased
jurors, prejudice under Strickland will not be presumed. State v.
King, 2008 UT 54, ¶ 13, 190 P.3d 1283. Instead, for Aguilar to
prevail on his claim that counsel was deficient, he must
demonstrate actual prejudice, which, in this context, requires a
showing of “actual juror bias.” See id. ¶ 39. And while a remand
under rule 23B may be, in some circumstances, an appropriate
tool for establishing actual bias, see id. ¶ 43, Aguilar’s allegations
fall short.

¶34 In King, the supreme court (on the State’s suggestion)
remanded the case for posttrial voir dire because two of the jurors
had articulated a concrete basis for potential bias. Id. ¶¶ 19, 40.
They had each stated that they, a family member, or a close friend
had been the victim of abuse, but without follow-up questioning
to test whether they could impartially decide allegations of abuse,
they were seated as jurors. Id. ¶¶ 7–8. In contrast, Aguilar’s
allegations are rooted entirely in speculation. His claims of bias
are based on his generalized complaints about systemic racism; he
has not alleged any facts beyond skin color to support his belief
that the jurors were biased against him. Under rule 23B, this is
insufficient. See Griffin, 2015 UT 18, ¶ 19 (indicating that remand
under rule 23B should be denied where allegations “have little
basis in articulable facts but instead rest on generalized
assertions”).

¶35 Second, Aguilar’s claim that his trial counsel was
ineffective for not moving to strike the panel on the basis that the
jury venire did not represent a fair cross-section of the community
likewise fails. Aguilar concedes that “he cannot demonstrate that

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the [alleged] underrepresentation [of Latinos] was due to
systematic exclusion of the group in the jury-selection process.”
(Cleaned up.) Yet he contends that his counsel acted unreasonably
in not moving to strike the panel on that basis. But simply because
counsel could have made such a motion does not mean that it was
deficient performance not to. Aguilar has not engaged with the
relevant law and has not shown that there was a sound legal basis
for trial counsel to move to strike the panel, nor has he shown that
it is reasonably likely that the district court would have granted
such a motion if one had been made.

B. Defense Investigation and Uncalled Witness

¶36 Aguilar next asserts that trial counsel performed
deficiently by not calling Aguilar’s sister (Sister) to testify and by
not investigating Mother. Regarding Sister, Aguilar argues that
because she lived with Aguilar and Victoria “for a significant
period of time,” she could have testified about the “interactions of
the personalities in the home” and the various sleeping
arrangements, including Aguilar’s adamance that Victoria not
sleep in the bed he shared with Mother. And as to Mother, Aguilar
argues that it was ineffective not to interview Mother about her
reported concern that Victoria was changing her story. On these
bases, Aguilar seeks remand to allow Sister’s testimony to be put
in the record and to “[u]nearth[]” what Victoria said to Mother.
Aguilar’s request does not satisfy rule 23B.

¶37 First, we agree with the State that it was not objectively
unreasonable for counsel to conclude that Sister had little to add.
Even assuming she could have testified of her familiarity with
Victoria and Aguilar’s interactions, she could not testify that
Aguilar never had opportunities to abuse Victoria. Similarly, it
was not unreasonable for counsel to conclude that Sister’s
knowledge of different sleeping arrangements or Aguilar’s
insistence that Victoria not sleep in his bed would do little to

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undermine Victoria’s claims. 10 See State v. Boyer, 2020 UT App 23,
¶ 62, 460 P.3d 569 (“There are countless ways to provide effective
assistance in any given case and . . . even the best criminal defense
attorneys would not defend a particular client in the same way.”
(cleaned up)).

¶38 Second, Aguilar contends that because his counsel did not
interview Mother, counsel could not cross-examine Victoria on
the perceived change. But it is Aguilar’s burden to produce
nonspeculative allegations of fact “that will demonstrate both
deficient performance and prejudice.” State v. Gallegos, 2020 UT
19, ¶¶ 39–40, 463 P.3d 641. Without a nonspeculative allegation of
what Mother would have said, Aguilar cannot demonstrate that
it is reasonably likely the jury would have reached a different
result had counsel interviewed Mother and further cross-
examined Victoria. 11 See State v. Cecala, 2021 UT App 141, ¶ 42, 502
P.3d 790 (rejecting a request for remand under rule 23B because
the defendant did not establish that a witness, if called, would
have provided testimony favorable to the defense); cf. Gallegos,
2020 UT 19, ¶ 40 (“Rule 23B is not an invitation to fish for facts.”).

C. Impeachment of Counselor

¶39 Aguilar makes two related arguments in support of his
complaints about his trial counsel’s handling of Counselor.
Aguilar first contends that counsel was “ineffective in failing to

10. In support of the two counts on which Aguilar was convicted,
Victoria testified that Aguilar told her to come in the room and get
on the bed with him. In neither instance did Victoria claim that
the abuse occurred when they had been sleeping together in the
bed.

11. Aguilar also has not proffered evidence that Mother would
have been willing to meet with trial counsel if counsel had
requested an interview.

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 State v. Aguilar

fully impeach” Counselor “with respect to interviewing children
of tender age.” This argument fails because the facts on which this
argument is based are already in the record. See Griffin, 2015 UT
18, ¶ 18 (“[R]emand is not appropriate where the alleged facts are
already in the record.”). In fact, Aguilar acknowledges that his
counsel “had all of th[e] information” demonstrating that
Counselor was unqualified to interview children about sexual
abuse. Thus, Aguilar’s real complaint is that counsel did not put
the information to better use, an argument that should have been
made, if at all, in his principal brief. 12 Cf. id.

¶40 Second, Aguilar argues that counsel performed deficiently
in arguing the motion in limine when counsel did not inform the
court that Counselor previously entered a plea of guilty in
abeyance to one count of disorderly conduct years before Victoria
reported Aguilar’s abuse. Aguilar asserts that had this additional
information been provided, the court could have “more clearly
see[n]” how the allegation that Counselor inappropriately
touched another person reflected “on his character for
truthfulness and bias.” Aguilar, however, has not identified a
legal basis for the evidence’s admission, nor has he engaged in the
necessary analysis to demonstrate a reasonable likelihood that the
court would have denied the motion in limine had the court been
aware of the plea. See Salt Lake City v. Kidd, 2019 UT 4, ¶ 35, 435
P.3d 248 (“A party may not simply point toward a pile of sand
and expect the court to build a castle. In both district and appellate
courts, the development of an argument is a party’s responsibility,

12. Even if Aguilar had included this argument in his principal
brief, it likely would have been difficult to establish ineffective
assistance of counsel. After all, his counsel highlighted
Counselor’s lack of training in interviewing children and explored
the potential that Victoria’s allegations were the result of
improper interview techniques.

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 State v. Aguilar

not a judicial duty.”). Thus, Aguilar has not demonstrated that
remand is warranted.

D. Cross-Examination of Victoria and Mother

¶41 Aguilar seeks remand to demonstrate alleged deficiencies
in trial counsel’s cross-examination of Victoria and Mother.
Specifically, he complains that counsel did not cross-examine
Victoria “about the reasons she may” want Aguilar “out of her
life” or about whether she was experiencing “difficulty” after the
abuse. He also contends that counsel should have cross-examined
Mother about an alleged motive to “get rid of” Aguilar and to
expose Mother’s purported “vindictive[ness].” We reject these
arguments as a basis for remand for two reasons. First,
regarding Victoria, Aguilar does not aver that he shared with his
counsel his suspicions about reasons Victoria may have had to
want Aguilar out of her life or her post-abuse conduct. Thus,
counsel may not have asked about Aguilar’s suspicions because
counsel was unaware of them. See State v. Biebinger, 2018 UT App
123, ¶ 17, 428 P.3d 36 (“An attorney cannot be charged with
providing ineffective assistance for failing to bring a competency
petition based on facts he does not know and has no reason to
know.”).

¶42 Second, regarding both witnesses, Aguilar again has not
demonstrated that it was objectively unreasonable for counsel to
adopt a defense strategy that did not include accusing Mother of
encouraging Victoria to fabricate allegations against Aguilar to
“get rid of” him. Counsel instead adopted a strategy that painted
Aguilar in a good light. Further, rather than paint Victoria and
Mother as untruthful, counsel instead chose to highlight the
problems with Counselor’s interview and his lack of training and
to suggest that confusion, not resentment or any vindictiveness,
fueled Victoria’s allegations. Because Aguilar has not shown that
counsel’s choices were objectively unreasonable, he is not entitled
to remand. See Griffin, 2015 UT 18, ¶ 20.

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 State v. Aguilar

E. Expert Testimony About Victoria’s Behavior

¶43 Aguilar last asserts that trial counsel’s performance “fell
below the prevailing standard of professional norms” because
counsel “refused to confer with or call an expert” to address the
theory that “if [Victoria] were really abused sexually, she would
be suffering emotionally and would show signs of the trauma.”
This argument fails because Aguilar has not provided
nonspeculative allegations about who would have testified on
Aguilar’s behalf and what the expert’s testimony would have
been. See State v. Curtis, 2013 UT App 287, ¶ 20, 317 P.3d 968
(rejecting remand under rule 23B because the defendant failed to
identify the uncalled witnesses and “specific facets of their
testimony that might have helped the case” (cleaned up)). Thus,
remand on this basis is unwarranted. See Utah R. App. P. 23B(a).

CONCLUSION

¶44 Aguilar has not demonstrated that the district court
committed reversible error in denying his motion for a new trial,
in granting the State’s pretrial motion in limine, or in providing
the jury with a supplemental jury instruction in response to the
jury’s inquiry. Aguilar also has not shown that his trial counsel
was constitutionally ineffective or that remand under rule 23B of
the Utah Rules of Appellate Procedure is appropriate on any one
of his several ineffective assistance of counsel claims. We
therefore decline to order remand for additional factfinding and
affirm his convictions.

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