State v. Mitchell

2023 UT App 42

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
AVERY HOLIDAY MITCHELL,
Appellant.

Opinion
No. 20200371-CA
Filed April 20, 2023

Third District Court, Salt Lake Department
The Honorable Heather Brereton
No. 191901794

Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUSTICE JILL M. POHLMAN and JUDGE RYAN M. HARRIS
concurred.1

CHRISTIANSEN FORSTER, Judge:

¶1 Avery Holiday Mitchell appeals his convictions of one
count of rape of a child and two counts of aggravated sexual abuse
of a child. We affirm.

1. Justice Jill M. Pohlman began her work on this case as a member
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. Mitchell

BACKGROUND

¶2 Mitchell’s convictions arose from several incidents
involving two of his family members—twelve-year-old Leah and
thirteen-year-old Penny.2 At the time of the abuse, Leah and
Penny were living in their grandparents’ apartment, where
Mitchell was also living.

¶3 When the abuse came to light, Leah and Penny spoke to
their mother, their stepfather, two aunts, and their grandparents
about the abuse before going to the Children’s Justice Center for
an interview with a police detective (Detective). They also were
examined by a nurse (Nurse) to whom they relayed their
experiences. There is no information in the record about what
specific details the girls shared with their family and with
Detective.

¶4 At trial, Nurse testified that Leah told her Mitchell had
“used his penis . . . to touch [her] vagina” on six different
occasions but that Leah did not specifically mention penetration.
Nurse testified that Penny told her Mitchell had “raped [her] in
[her] vagina and bottom” but that she did not mention anything
about him touching her breasts. Nurse did not observe any
injuries in her examination of either girl.

¶5 At trial, Leah testified that while she was sleeping on a
beanbag chair, she woke to find Mitchell on top of her and that he
put his penis in her vagina. She further testified that the same
thing happened on a second occasion when she was resting on her
grandparents’ bed. She also testified that Mitchell touched her
vagina on each of these occasions.

¶6 At trial, Penny testified that Mitchell would sometimes
“grab” her breasts when she lived in the apartment and that it

2. We use pseudonyms to refer to Mitchell’s victims.

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 State v. Mitchell

happened about twenty-five times. In particular, she recalled him
grabbing her breast for “a couple of seconds” when she was
“cooking or cleaning” in the kitchen. She also recalled Mitchell
touching her breast while she played video games with him in his
room. On cross-examination, Mitchell’s attorney (Defense
Counsel) asked Penny if she recalled telling Nurse that Mitchell
had “raped [her] in [her] vagina and in [her] bottom,” and she
said, “Yes.”

¶7 In addition to witness testimony, the jury heard a
recording of Detective’s interview with Mitchell, in which
Mitchell admitted that he “had sex” with Leah on the beanbag
chair and that his penis went into her vagina “a little bit.” He also
admitted to rubbing the outside of her vagina with his hand. He
further admitted to “cupping” Penny’s breast when they were in
the kitchen, although he claimed it was an accident.

¶8 Detective testified about his training in conducting
interviews with children who may be victims of crime, as well as
his training in conducting interviews with adult suspects. He
explained that he was taught to ask children “open ended
questions, to be non-leading and allow the child to tell a narrative
of an incident in their words with some room for clarification.”
He was taught not to “introduce any information to” children
because they “can be easily led or suggested in an interview.”
Detective testified that he used these techniques when
questioning Leah and Penny. Detective then explained that when
questioning an adult suspect, he uses the “Reid Interview and
Interrogation” model, which recommends asking the suspect for
a narrative, while also using “suggestive questioning” by
“giv[ing] [the suspect] a little bit of information on what [the
officer] know[s] and then allow[ing] [the suspect] to elaborate on
it.”

¶9 While cross-examining Detective, Defense Counsel elicited
more detail about Detective’s interview techniques, including the

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ways a child’s testimony may be contaminated if appropriate
techniques are not followed. He also asked Detective
about leading questions he used in his interview with Mitchell to
try to obtain a confession. Finally, Defense Counsel asked
Detective about some of the differences between what Leah and
Penny told him in their interviews and what they testified to at
trial. Defense Counsel suggested in his opening statement and
argued in his closing that Leah’s and Penny’s recollections were
contaminated by their previous discussions with multiple family
members and that Detective had coerced Mitchell into a false
confession.

¶10 During closing argument, the State discussed the evidence
supporting each of the three charges. With respect to Count 1,
rape of a child, the State made clear that this count had to do with
Leah and reminded the jury of the evidence—including Mitchell’s
own admission—that Mitchell had sexual intercourse with Leah
on the beanbag chair. Other than a brief reference in rebuttal, the
State did not discuss the incident on the bed that Leah had also
recounted. With respect to Count 2, the first count of aggravated
sexual abuse of a child, the State also made clear that this count
had to do with Leah and reminded the jury of the evidence—
including Mitchell’s own admission—that Mitchell touched
Leah’s vagina with his hand. Finally, with respect to Count 3, the
second count of aggravated sexual abuse of a child, the State made
clear that this count had to do with Penny and reminded the jury
of the evidence that Mitchell touched Penny’s breast in the kitchen
and pointed out how that evidence lined up with Mitchell’s
confession. The State also explained that the jury should not
consider any evidence of sexual contact between Mitchell and
Penny besides him touching her breast in reaching its verdict on
Count 3.

¶11 The jury returned a guilty verdict on all three counts.
Mitchell appeals.

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 State v. Mitchell

ISSUES AND STANDARDS OF REVIEW

¶12 Mitchell raises three claims of error on appeal: (1) that
Detective’s testimony regarding interrogation techniques was
expert testimony that he should not have been allowed to give
without first being disclosed and qualified as an expert, (2) that
the jury instructions did not adequately define the elements of
rape of a child, and (3) that the jury instructions should have
included a specific unanimity instruction.

¶13 Mitchell did not raise any of these issues before the district
court and therefore asks us to consider each of these arguments
through the lens of ineffective assistance of counsel and plain
error. “When a claim of ineffective assistance of counsel is raised
for the first time on appeal, there is no lower court ruling to review
and we must decide whether the defendant was deprived of the
effective assistance of counsel as a matter of law.” Layton City v.
Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified).
The plain error standard of review requires an appellant to show
that “(i) an error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful, i.e., absent the error,
there is a reasonable likelihood of a more favorable outcome for
the appellant.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346
(quotation simplified); see also State v. Ringstad, 2018 UT App 66,
¶ 32, 424 P.3d 1052, cert. denied, 425 P.3d 802 (Utah 2018).

ANALYSIS

I. Detective’s Testimony

¶14 Mitchell first asserts that Detective’s testimony regarding
interview techniques was impermissible expert testimony
because it was not timely disclosed and that either Defense
Counsel was ineffective for failing to object to the testimony or the
district court plainly erred by allowing it. However, we are not

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persuaded either that Defense Counsel performed deficiently or
that the district court was confronted with an obvious error that it
should have corrected.

¶15 To prevail on grounds of ineffective assistance, a defendant
must demonstrate, first, “that counsel’s performance was
deficient, in that it fell below an objective standard of reasonable
professional judgment,” and second, “that counsel’s deficient
performance was prejudicial—i.e., that it affected the outcome of
the case.” State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing
Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). When trial
counsel’s actions “might be considered sound trial strategy, it
follows that counsel did not perform deficiently.” State v. Scott,
2020 UT 13, ¶ 35, 462 P.3d 350 (quotation simplified).

¶16 Here, Defense Counsel relied heavily on Detective’s
description of his interview techniques to support Mitchell’s
defense. That defense focused on undermining Leah’s and
Penny’s credibility and attempting to convince the jury that
Detective had manipulated Mitchell into a false confession. The
primary way Defense Counsel attempted to undermine Leah’s
and Penny’s testimony was by asserting that their versions of
events were inaccurate, that is, that their recollections of what
happened to them were contaminated by their discussions with
multiple family members before they were interviewed by
Detective. With respect to Mitchell’s police interview, the defense
strategy focused on trying to convince the jury that Detective had
manipulated him into admitting to things that did not really
happen by asking him suggestive and leading questions. To set
up these arguments, Defense Counsel cross-examined Detective
extensively concerning his interview techniques, including
soliciting information about the types of questions that might
contaminate a child’s testimony and specific leading questions he
used in questioning Mitchell. Given Mitchell’s incriminating
admissions, Defense Counsel had few attractive strategic defense
options. Attempting to undermine the State’s key witnesses was

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 State v. Mitchell

perhaps the best option Defense Counsel had available. Without
Detective’s description of his interview techniques and how his
interviews of the victims and Mitchell differed, that defense
would have been more difficult to support. Under these
circumstances, it was an objectively reasonable strategy for
Defense Counsel to forgo an objection to the admissibility of
Detective’s testimony and to instead try to use that testimony to
Mitchell’s advantage.

¶17 Furthermore, Mitchell cannot establish plain error because
it would have been apparent to the district court that Defense
Counsel was relying on Detective’s testimony to further his trial
strategy. “Our adversary system . . . relies generally on objections
from parties to police the admissibility of evidence. We do not
require or even expect our trial judges to exercise their own
independent judgment on the question of admissibility.” State v.
Hummel, 2017 UT 19, ¶ 109, 393 P.3d 314; see id. ¶ 108 (explaining
that prosecutorial misconduct will rise to the level of plain error
only where it is “both highly prejudicial and clearly
inadmissible”). Thus, counsel has the prerogative to forgo any
objection to even inadmissible testimony for the purpose of
advancing a reasonable trial strategy, and the district court does
not commit plain error by not sua sponte raising its own objection
under such circumstances. See State v. Burnside, 2016 UT App 224,
¶ 42, 387 P.3d 570 (“[A]n attorney’s decision to forgo an objection
as a matter of trial strategy cuts strongly against a finding of . . .
plain error . . . .”); State v. Morgan, 813 P.2d 1207, 1211 (Utah Ct.
App. 1991) (rejecting a plain error claim based on a failure to
object because “it was within counsel’s professional discretion to
not object to testimony that would aid [counsel’s] strategy”); cf.
Hummel, 2017 UT 19, ¶ 110 (“[T]he law recognizes the prerogative
of opposing counsel to swallow their tongue instead of making an
objection that might have the risk of highlighting problematic
evidence or even just annoying the jury.”).

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 State v. Mitchell

¶18 In his opening statement, Defense Counsel informed the
jury that Detective would testify “that there is a protocol for
interviewing young kids about sexual abuse” and explain that
protocol. Defense Counsel outlined Mitchell’s defense that the
victims’ testimonies had been contaminated and that Detective
manipulated Mitchell into a false confession. This opening
statement would have indicated to the district court not only that
Defense Counsel had no objection to Detective’s anticipated
testimony, but also that he planned to use it to Mitchell’s
advantage. Thus, the district court would have had no reason to
believe that the testimony was objectionable to the defense, and it
did not plainly err by not intervening.

¶19 Because it was objectively reasonable for Defense Counsel
to use Detective’s testimony to further his sound trial strategy,
Mitchell cannot establish that Defense Counsel performed
deficiently by declining to object to the testimony or that the
district court committed plain error by not sua sponte excluding
the testimony.

II. Elements Instruction

¶20 Mitchell next asserts that there is a “constitutional
concern[] created by . . . ambiguous terms in the child-rape
statute[].”3 The jury was instructed that it could find Mitchell

3. Mitchell asserts that this issue was preserved because the
district court expressed concern about the “touching” language
originally proposed in the State’s instruction. However, the
district court’s concern was ultimately resolved to its satisfaction
after it determined that the instructions the State had proposed
were consistent with the Model Utah Jury Instructions. Defense
Counsel did not object to the district court’s conclusion and
ultimately approved the instructions. Thus, the issue raised on
appeal—that the jury instructions did not, in fact, resolve the
constitutional concern—was not preserved.

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 State v. Mitchell

guilty of rape of a child if (1) he “[i]ntentionally, knowingly, or
recklessly . . . [h]ad sexual intercourse with [Leah]” and (2) Leah
“was under 14 years old at the time of the conduct.” The
instructions further clarified, “For purposes of Rape of a Child,
sexual intercourse can be accomplished by any touching, however
slight.” And the instructions went on to define “touching” as “to
bring a bodily part briefly into contact with so as to feel; to
examine by touching or feeling with the fingers; to cause to be
briefly and lightly in contact or conjunction with something; to
meet without overlapping or penetrating; to be or become
contiguous or adjacent to; or to impinge upon, adjoin; to feel
something with a body part.”4 Mitchell asserts that these
instructions suggest that a person can be convicted of rape of a
child by simply touching a child’s vagina with the fingers,
without any penetration, which would make the crime of rape of
a child indistinguishable from the crime of sexual abuse of a child.
Compare Utah Code § 76-5-402.1(2)(b) (“Any touching, however
slight, is sufficient to constitute the relevant element of [rape of a
child].”), with id. § 76-5-404.1(2)(a) (“[A]n actor commits sexual
abuse of a child if [with the requisite intent] the actor: (i)(A)
touches the anus, buttocks, pubic area, or genitalia of any child
. . . .”).

¶21 In the abstract, these instructions could be potentially
confusing to a jury, even though they are consistent with the
current language of the rape of a child statute, see id. § 76-5-
402.1(2). See generally State v. Hutchings, 2012 UT 50, ¶ 23, 285 P.3d
1183 (explaining that even jury instructions that are legally correct
can be inappropriate if they have “potential for confusion and
could have misled the jury”). That is, if “sexual intercourse” can
be accomplished by “[a]ny touching, however slight,” see Utah

4. “Touching” is not defined in the statute, and it is not clear from
our review of the record how the court arrived at the definition
provided in the jury instructions.

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 State v. Mitchell

Code § 76-5-402.1(2), and the jury instructions defined “touching”
as “to meet without . . . penetrating” and to include “touching . . .
with the fingers,” we see the potential for definitional confusion.5
(Emphasis added.)

¶22 However, Mitchell’s argument ends up being academic
here because he admitted to penetrating Leah’s vagina with his
penis. Thus, his complaint that both child rape and child sexual
abuse can potentially be established by merely touching a child is
not of consequence in this case, because rape of a child requires
“sexual intercourse” as an element and Mitchell admitted to the
sexual penetration that satisfies the ordinary definition of sexual
intercourse. See Utah Code § 76-5-402.1(2)(a) (“An actor commits
rape of a child if the actor has sexual intercourse with an
individual who is younger than 14 years old.”); In re C.N., 2023
UT App 41, ¶ 37. As this court explained in State v. Jones, 2018 UT
App 110, 427 P.3d 538, cert. denied, 432 P.3d 1226 (Utah 2018),
where a defendant’s “alleged acts include not only impermissibly
touching [a victim], but also penetrating her,” the “alleged
conduct—penetration—is clearly prohibited.” Id. ¶ 17; see also id.
¶¶ 15–17 (finding that actual penetration meets the definition of

5. To the extent that current statutory language does not reflect
legislative intent, the legislature might consider providing a
statutory definition of the term “sexual intercourse” that explains
whether penetration of a child’s sexual organ is required and
which body parts must be involved so as to distinguish this crime
from other sexual offenses against children. Moreover, district
courts should take steps to ensure that jury instructions
incorporate relevant clarifications provided by our courts, see, e.g.,
In re C.N., 2023 UT App 41, ¶ 37 (interpreting “sexual
intercourse,” as used in section 76-5-402.1 of the Utah Code, to
mean specifically vaginal intercourse), particularly where the
facts of the case present any ambiguity regarding the acts
constituting the crime in question.

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 State v. Mitchell

sexual intercourse and overruling an unconstitutional vagueness
challenge to the child rape statute).

¶23 Even if the jury instructions had the potential to lead the
jury to believe that some touching other than penetrative touching
between Mitchell’s penis and Leah’s vagina could support a
conviction for rape of a child, the evidence pertaining to Count
1—which included Mitchell’s own confession that he inserted his
penis into Leah’s vagina at least “a little bit”—clearly concerned
the alleged rape of Leah on the beanbag. And Mitchell does not
suggest how the instructions should have been altered or how an
altered instruction could have made a difference to the outcome
of his case. Under these circumstances, we are not persuaded that
there was a reasonable likelihood that the jury based its rape-of-
a-child conviction on any touching other than the penis-to-vagina
penetration that occurred on the beanbag. Because Mitchell did
not suffer prejudice as a result of any ambiguity in the elements
instruction, he cannot establish either plain error or ineffective
assistance of counsel. See State v. McNeil, 2016 UT 3, ¶ 29, 365 P.3d
699.

III. Unanimity Instruction

¶24 Finally, Mitchell argues that the jury instructions should
have more specifically identified the charged incidents to ensure
a unanimous verdict. Once again, he raises this unpreserved
argument on grounds of plain error and ineffective assistance of
counsel. And once again, we find no prejudice resulting from the
alleged error.

¶25 In Utah, a criminal defendant can be convicted only if the
verdict is unanimous. Utah Const. art. I, § 10. “This requirement
is not met if a jury unanimously finds only that a defendant is
guilty of a crime; rather, jury unanimity means unanimity as to a
specific crime and as to each element of the crime.” State v.
Whytock, 2020 UT App 107, ¶ 30, 469 P.3d 1150 (quotation

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 State v. Mitchell

simplified), cert. denied, 481 P.3d 1043 (Utah 2021). Mitchell asserts
that more detailed jury instructions were necessary in this case
because multiple allegations of abuse were raised that could have
supported the charges. For example, since Leah testified that
Mitchell raped her both on the beanbag chair and on the bed,
some jurors may have based his Count 1 conviction on one
incident while other jurors based it on the other incident.
Likewise, since Penny testified that Mitchell touched her breasts
both in the kitchen, while she was cooking or cleaning, and in the
bedroom, while she was playing video games, different jurors
may have based Mitchell’s Count 3 conviction on different
incidents.

¶26 Even if we presume, for purposes of the argument, that
Defense Counsel performed deficiently by failing to request a
specific jury unanimity instruction, Mitchell has failed to
demonstrate that he sustained prejudice as a result, given his clear
admission that he committed acts that amount to each of the
crimes of which he was convicted. While several incidents of
abuse came up during the trial, Mitchell confessed to three
specific incidents—the rape on the beanbag chair, touching Leah’s
vagina, and touching Penny’s breasts in the kitchen. Moreover,
the State linked the charges to those three incidents in its closing
argument. Discussing Count 1, the State’s main closing argument
did not mention the bed incident at all.6 Instead, the prosecutor
discussed both Leah’s and Mitchell’s accounts of the beanbag
incident. Discussing Count 2, the prosecutor referred only to

6. The prosecutor did briefly mention the bed incident during the
State’s rebuttal closing: “[Leah] said she was raped twice on the
beanbag and on a bed.” But we do not think it likely that this
isolated statement would have led the jury to rely on the bed
incident given the State’s otherwise exclusive discussion of the
beanbag incident in outlining Count 1 and Mitchell’s confession
to that incident.

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 State v. Mitchell

Mitchell’s action of touching Leah’s vagina with his fingers. He
also explicitly informed the jury that this charge concerned only
Mitchell’s conduct with Leah, not any of his conduct with Penny.
Finally, discussing Count 3, the prosecutor primarily focused on
the evidence that Mitchell touched Penny’s breast in the kitchen.
While he also referred to Penny’s testimony that Mitchell touched
her breast while they were playing video games in his bedroom,
the prosecutor emphasized Mitchell’s admission concerning the
kitchen incident, even replaying the portion of his interview that
referred to the incident. The State also drew attention to the
consistency between Penny’s and Mitchell’s accounts of what
happened in the kitchen.

¶27 Given the State’s clear emphasis on the three incidents to
which Mitchell confessed and the strong evidence of the crimes
provided by his confession, we are not convinced that there is a
reasonable likelihood that any of the jurors based their guilty
verdict on other incidents briefly addressed during trial. See State
v. Mottaghian, 2022 UT App 8, ¶ 66, 504 P.3d 773, cert. denied, No.
20220349, 2022 WL 19300388 (Utah 2022); State v. Case, 2020 UT
App 81, ¶ 26, 467 P.3d 893 (holding there was no reasonable
probability that the jury would have reached a different result had
it been specifically instructed that all jurors needed to agree on the
specific act underlying each count), cert. denied, 474 P.3d 948 (Utah
2020). Mitchell therefore cannot establish that he was prejudiced
by any error in the jury instructions regarding unanimity and,
accordingly, cannot establish either plain error or ineffective
assistance of counsel.

CONCLUSION

¶28 Because Defense Counsel planned his sound legal defense
strategy on Detective’s anticipated testimony about interview
techniques, we are not persuaded that he performed deficiently
by not objecting to that testimony, and we are not persuaded that

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 State v. Mitchell

the district court plainly erred by not stepping in sua sponte to
exclude it. Moreover, Mitchell was not prejudiced by the other
two alleged errors he challenges on appeal and therefore cannot
obtain reversal on grounds of plain error or ineffective assistance
of counsel with respect to those claims. Accordingly, we affirm his
convictions.

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