State v. Granere

2024 UT App 1

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
CHARLES PHILIP GRANERE,
Appellant.

Opinion
No. 20190593-CA
Filed January 5, 2024

Third District Court, Salt Lake Department
The Honorable Linda M. Jones
No. 161909765

Ann M. Taliaferro and Kristin Wilson,
Attorneys for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

ORME, Judge:

¶1 Charles Philip Granere appeals his convictions of rape of a
child, object rape of a child, and aggravated sexual abuse of a
child. He argues that his trial counsel (Counsel) was
constitutionally ineffective in several respects, most notably for
failing to request that the jury be properly instructed on
unanimity; that the trial court erred in excluding evidence
supporting his theory that the child victim, Beth, 1 had been
0F

sexually abused by another; and that insufficient evidence
supported his convictions because Beth’s testimony was
inherently improbable. We agree that Counsel was ineffective for

1. A pseudonym.
 State v. Granere

failing to request a unanimity instruction concerning the charges
for rape of a child and aggravated sexual abuse of a child, and we
therefore reverse those convictions and remand for further
proceedings. But because Granere’s conviction of object rape of a
child withstands all his challenges on appeal, we affirm that
conviction.

BACKGROUND 2 1F

¶2 In September 2013, Granere, then a 34-year-old man, began
dating a woman (Mother). Their relationship soon turned serious,
and Mother introduced Granere to her three children, including
her ten-year-old daughter, Beth.

¶3 Thereafter, because Granere “wanted to get to know” Beth
and wanted Beth and his daughter, who was the same age as Beth,
to “bond,” Mother dropped Beth off at Granere’s apartment in
Salt Lake City for a sleepover on three or four occasions. But
whenever Mother dropped Beth off for these sleepovers,
Granere’s daughter was not there and Granere told Mother that
his daughter either had not yet arrived or had already left. Mother
later testified that at the time Granere held these sleepovers, she
never observed signs of trauma in Beth or behaviors such as
excessive bathing or cleaning up after returning home from
Granere’s apartment. She also did not detect any odors indicative
of sexual activity on Beth or notice any suspicious stains on Beth’s
clothing while doing laundry. Beth appeared to be upset to
Mother only once after visiting Granere, the cause of which was
attributed to a video game console, but Mother could not
remember the specifics of that incident.

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.

20190593-CA 2 2024 UT App 1
 State v. Granere

¶4 Mother also testified that Granere twice took her and Beth
to his cabin in the mountains. Mother could not recall whether
Beth ever accompanied Granere to his cabin alone, but she
remembered that Granere once took Beth snowmobiling near his
cabin.

¶5 Mother and Granere ended their relationship in late March
or early April 2014. Nevertheless, Granere continued to have
occasional contact with Mother and Beth. This contact came to an
end in October 2015 following a cellphone-related disagreement.

¶6 Beth first disclosed to a friend that she had been sexually
abused after the friend told Beth that she (the friend) had been
sexually abused. Beth realized that what the friend described
“kind of sounds like things someone did to me,” and she then
confided to the friend that she had also been sexually abused. In
March 2016, Beth, now twelve years old, disclosed the sexual
abuse to a school counselor, naming Granere as the abuser. The
counselor reported the sexual abuse to a school administrator and
to law enforcement. Mother was also called to the school, where
Beth told her that Granere “had raped her.” Mother took Beth
home and also contacted law enforcement.

¶7 Beth was soon interviewed at the Children’s Justice Center
(the CJC). Among other instances of abuse, Beth told the
interviewers that Granere once told her to get in the bathtub and
to insert a “small and grey” object into her vagina. When Beth
refused, Granere put his hand on hers and forced the object into
her vagina, causing her to bleed. Beth stated that Granere then
took her to his bed. Beth speculated, “he knocked me out or
something again, because I can’t remember anything from that,”
but she said that the following day, Granere told her, “Oh didn’t
you remember? We had sex.” Beth also told the interviewers that
on other occasions, Granere would pin her down by her arms and
place his penis in her vagina, which she estimated happened
“[l]ike five, seven times.” Beth also recounted that on these and
other occasions, Granere touched her breasts.

20190593-CA 3 2024 UT App 1
 State v. Granere

¶8 The following month, a sexual assault nurse examiner
(Nurse) examined and interviewed Beth. Nurse observed that
Beth had “two full transections that were healed [on] her hymen.”
Nurse later testified this type of injury is caused by “[p]enetrating
trauma,” possibly involving a penis, an object, or fingers; but—
based on the exam—Nurse could not establish who caused those
injuries.

¶9 The State charged Granere with rape of a child, object rape
of a child, and aggravated sexual abuse of a child—all first-degree
felonies. 3 In March 2017, Granere filed a pretrial motion under
2F

rule 412 of the Utah Rules of Evidence to admit evidence that
Beth’s uncle (Uncle), a convicted sex offender, had previously
sexually abused her and that Uncle was the source of the two
hymenal transections. Specifically, Granere argued that in
mid-October 2013, Uncle was alone with Beth for half an hour on
the night of her tenth birthday party, following which Beth went
to the hospital experiencing pain, cramping, and vaginal
spotting. 4 Following an evidentiary hearing, the trial court denied
3F

that motion under rules 412 and 403 of the Utah Rules of
Evidence.

¶10 Regarding rule 412, the court stated that the evidence
Granere presented at the hearing “fails to support that [Uncle]
was the source of the injury, and there is no basis for allowing the
evidence” at trial. And regarding rule 403, the court stated that
even if Uncle had sexually abused Beth, the evidence Granere
sought to present at trial was not “relevant to a material factual
dispute” because the issue at trial was whether Granere—and not
Uncle—had sexually abused Beth. The court further stated that

3. The State later amended its information to add a fourth count
of sexual exploitation of a minor, but the jury acquitted Granere
on that count.

4. We recount Granere’s allegations against Uncle in greater detail
in Part II below.

20190593-CA 4 2024 UT App 1
 State v. Granere

“such evidence, if it were presented to the jury, would be
confusing and misleading.” Granere later raised this same issue
in a motion to continue trial and in a motion for a new trial, but
both times the court reaffirmed its ruling to exclude any evidence
supporting Granere’s theory that Uncle had sexually abused Beth.
The jury did, however, hear evidence that Beth went to the
hospital on the night of her tenth birthday with complaints of
pain, cramping, and spotting.

¶11 The case proceeded to a four-day jury trial in March 2019.
As part of its case-in-chief, the State called, among others, Beth,
Mother, and Nurse to testify. Mother’s and Nurse’s testimonies
are, in relevant part, recounted above. Beth testified at trial that
Granere sexually abused her at his apartment and at his cabin, and
that the abuse occurred “many times.” She stated that her first
memory of abuse took place at Granere’s apartment. He had
challenged her to a drinking contest, and as she drank her bottle
of blue Gatorade, she began feeling “weird” and “uneasy.” She
next remembered being in a bathtub with Granere sitting on the
toilet beside her. Granere handed her a “little silver object” and
instructed her to place it in her vagina. Beth did not want to, so
Granere took her hand in his and directed it to the top of her
vagina. Beth recalled him “rubbing his hand and my hand and
putting it on like the top of my vagina,” “inside the skin folds,”
and stating, “[H]ere, doesn’t that feel better?” He then pushed the
object further into her vagina. Beth felt a “stinging” and
“burning” sensation and began to bleed. Beth testified that
Granere next took her into his bedroom, sat her on his bed, and
inserted his fingers into her vagina, causing her to bleed even
further, and rubbed “the top part of [her] vagina.” He also ran his
hands up and down her waist, touching her breasts and buttocks.
Beth stated that Granere also placed his tongue on her vagina, but
it is unclear from her testimony when this happened.

¶12 Beth testified that another time in his apartment, Granere
massaged her with baby oil and then offered her a drink that
caused her to feel sleepy. She woke up to Granere on top of her

20190593-CA 5 2024 UT App 1
 State v. Granere

with his penis in her vagina, causing her to feel “a burning
sensation.” Beth stated that was the most vivid memory she had
of Granere inserting his penis into her vagina, but she then
proceeded to recount another instance when she had been asleep
in the cabin and Granere woke her up and told her, “I stuck it in
all the way.” When asked, “How many times do you remember
this happening . . . ?,” Beth replied, “I know it’s a lot more than
seven.” And when asked what they would do at the cabin, Beth
replied, “He would rape me.” Beth also described an instance at
the cabin when she was lying on the ground and Granere’s “head
was in between [her] legs,” shortly after which Granere
masturbated in front of her.

¶13 As part of his cross-examination of Beth, Counsel played
the 43-minute recording of Beth’s entire CJC interview with the
purpose of “count[ing] how many times she giggles, or laughs, or
finds it funny.” Counsel paused the interview over 50 times to ask
Beth whether she had laughed or looked at the camera at that
moment. Beth acknowledged repeatedly doing so throughout the
interview. Beth also stated on cross-examination that she did not
report the sexual abuse at the time because Granere repeatedly
told her that “this is what fathers and daughters do” and she
believed “that was a daughter and father relationship.”

¶14 Granere called five witnesses to testify in his defense. He
called his father and a detective to demonstrate that he could not
have taken Beth to the cabin during the winter of 2013–2014.
Granere’s father testified that in early November 2013, he
“winterize[d]” the cabin, which included shutting off the water,
draining the water heater and the toilets, and shutting off the gas
and the furnace. His father further stated that the cabin remained
in that uninhabitable state until he opened it up by reversing the
entire process during the first week of May 2014. And his father
explained that if they wished to use the cabin during the winter,
they would have to reverse all the actions he took to “winterize”
the cabin, which “was an all day process to get it warm enough so
that you could tolerate it.”

20190593-CA 6 2024 UT App 1
 State v. Granere

¶15 The detective testified that from mid-November 2013 until
mid-March 2014, Granere was serving a house arrest sentence
in an unrelated matter, which required him to wear a GPS
ankle monitor that tracked his location. He stated that the ankle
monitor would have alerted authorities if Granere went to the
cabin, and he had no record of any such violation. But the
detective also stated that so long as it was during the time Granere
was supposed to be at work, and so long as Granere was back
home by curfew, it would have been possible for Granere to spend
the day at the cabin without the ankle monitor alerting
authorities.

¶16 Granere’s wife, whom he married after he and Mother
ended their relationship, testified that Granere was incapable of
being “on top” because “he can’t hold himself up on his knees.”
And contradicting portions of Beth’s testimony suggesting
otherwise, Granere’s daughter testified that he had never sexually
abused her (the daughter). Lastly, Granere testified on his own
behalf. He denied sexually abusing Beth and denied that Beth ever
spent the night at his apartment.

¶17 The jury found Granere guilty of rape of a child, object
rape of a child, and aggravated sexual abuse of a child. Granere,
still represented by Counsel, then moved to arrest judgment,
arguing that the State’s evidence was insufficient to support
his convictions because Beth’s testimony was inherently
improbable. Following a hearing, the trial court denied the
motion. Next, through new counsel, Granere moved for a new
trial, arguing that he should have been allowed to present his rule
412 evidence that Uncle caused the two hymenal transections
described by Nurse. He also asserted that Counsel was
constitutionally ineffective for, in relevant part, playing the CJC
interview for the jury and for not objecting to alleged
prosecutorial misconduct during closing argument. The trial
court denied this motion as well.

¶18 Granere appeals.

20190593-CA 7 2024 UT App 1
 State v. Granere

ISSUES AND STANDARDS OF REVIEW

¶19 Granere raises several issues on appeal. First, he argues
that his convictions should be vacated because the jury
instructions did not require unanimity on each count. Ordinarily,
“a challenge to a jury instruction as incorrectly stating the law
presents a question of law, which we review for correctness.” State
v. Gollaher, 2020 UT App 131, ¶ 20, 474 P.3d 1018 (quotation
simplified), cert. denied, 481 P.3d 1040 (Utah 2021). But because we
ultimately hold that this issue was not preserved, see infra Part
I.A.1, we review this issue through the lens of ineffective
assistance of counsel. “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.” State v. Elkface, 2023 UT App 24, ¶ 7, 527 P.3d 820 (quotation
simplified), cert. denied, 534 P.3d 752 (Utah 2023).

¶20 Granere also argues that Counsel was ineffective in other
respects, two of which he raised before the trial court in a motion
for new trial. In reviewing those two claims, “[t]here is no reason
. . . to depart from the standard of review set out in Strickland
simply because the appeal was preceded by a motion for new
trial.” State v. Templin, 805 P.2d 182, 185–86 (Utah 1990). Therefore,
all of Granere’s “ineffective assistance of counsel claims present a
mixed question of fact and law.” Id. at 186 (citing Strickland v.
Washington, 466 U.S. 668, 698 (1984)). We thus “review a trial
court’s application of the law to the facts for correctness and, if
applicable, we review the court’s findings of fact for clear error.”
State v. Torres-Orellana, 2021 UT App 74, ¶ 26, 493 P.3d 711, cert.
granted, 502 P.3d 268 (Utah 2021).

¶21 Granere next contends that the trial court erred in
excluding evidence that Uncle had sexually abused Beth and was
the cause of Beth’s two hymenal transections. We review a trial
court’s decision to admit or exclude evidence under rules 412 and
403 of the Utah Rules of Evidence for an abuse of discretion. State

20190593-CA 8 2024 UT App 1
 State v. Granere

v. Beverly, 2018 UT 60, ¶ 23, 435 P.3d 160. See State v. Cuttler, 2015
UT 95, ¶ 12, 367 P.3d 981 (“We afford district courts a great deal
of discretion in determining whether to admit or exclude evidence
and will not overturn an evidentiary ruling absent an abuse of
discretion.”) (quotation simplified).

¶22 Finally, Granere argues that the court erroneously denied
his motion to arrest judgment because “[t]here was not sufficient
evidence to support the verdicts under the inherent improbability
standard.” 5 “We review a district court’s grant or denial of a
4F

motion . . . to arrest judgment for correctness.” State v. Miller, 2023
UT 3, ¶ 50, 527 P.3d 1087 (quotation simplified). We will “uphold
a denial of the motion . . . to arrest judgment based on an
insufficiency of the evidence claim, if some evidence exists from
which a reasonable jury could find that the elements of the crime
had been proven beyond a reasonable doubt.” Id. (quotation
simplified). In other words, we will “reverse the denial of a
motion to arrest judgment only if the evidence, viewed in the light
most favorable to the verdict, is so inconclusive or so inherently
improbable as to an element of the crime that reasonable minds
must have entertained a reasonable doubt as to that element.” Id.
(quotation simplified).

5. Because Granere raised this argument for the first time in his
motion to arrest judgment, this claim is potentially unpreserved.
See State v. Fullerton, 2018 UT 49, ¶ 49 n.15, 428 P.3d 1052 (“[A]n
objection that could have been raised at trial cannot be preserved
in a post-trial motion.”). But because the State does not assert that
this issue is unpreserved and thus the parties have not briefed
preservation, and because we ultimately resolve the merits of this
argument in the State’s favor, we do not further address
preservation here. See State v. Kitches, 2021 UT App 24, ¶ 28, 484
P.3d 415, cert. denied, 496 P.3d 718 (Utah 2021).

20190593-CA 9 2024 UT App 1
 State v. Granere

ANALYSIS

I. Ineffective Assistance of Counsel

¶23 To prevail on a claim of ineffective assistance of counsel, a
criminal defendant must show that (1) “counsel’s performance
was deficient” and (2) “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure
“to establish either element defeats a claim for ineffective
assistance of counsel.” State v. Cruz, 2020 UT App 157, ¶ 17, 478
P.3d 631 (quotation simplified), cert. denied, 481 P.3d 1040 (Utah
2021).

¶24 Under the first element, defense counsel’s actions amount
to deficient performance if they fall “below an objective standard
of reasonableness.” Strickland, 466 U.S. at 688. But “[j]udicial
scrutiny of counsel’s performance” is “highly deferential” in that
the defendant must overcome the “strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. Under that presumption,
“even if an omission is inadvertent and not due to a purposeful
strategy, relief is not automatic.” State v. Ray, 2020 UT 12, ¶ 34, 469
P.3d 871 (quotation simplified). Instead, “even if a court
concludes that counsel made an error, the ultimate question is
always whether, considering all the circumstances, counsel’s acts
or omissions were objectively unreasonable.” State v. Scott, 2020
UT 13, ¶ 36, 462 P.3d 350.

¶25 To establish prejudice under the second element, “[t]he
defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.
“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. In conducting this inquiry, “an
appellate court should consider the totality of the evidence, taking
into account such factors as whether the errors affect the entire
evidentiary picture or have an isolated effect and how strongly

20190593-CA 10 2024 UT App 1
 State v. Granere

the verdict is supported by the record.” Gregg v. State, 2012 UT 32,
¶ 21, 279 P.3d 396 (quotation simplified).

¶26 Granere argues that Counsel was ineffective for (1) failing
to request a proper jury instruction on unanimity, (2) failing to
seek exclusion of Beth’s testimony as “unreliable and
incompetent,” (3) playing Beth’s CJC interview at trial, and
(4) failing to object to alleged prosecutorial misconduct during
closing argument. 6 We address each argument in turn.
5F

A. Unanimity Instruction

¶27 Granere first seeks reversal of his convictions on the
ground that “the jury was not required to render a unanimous
verdict.” Before we reach the merits of this argument, we must
first determine whether this issue is preserved. And concluding

6. Granere also argues that Counsel was ineffective for failing to
object to Beth’s testimony regarding certain acts of abuse of which
he was not given notice in the preliminary hearing. See State v.
Ortega, 751 P.2d 1138, 1139 (Utah 1988) (“[A] criminal defendant
cannot lawfully be tried for and convicted of a crime for which he
or she was not given, or for which he or she did not waive, a
preliminary hearing.”). But because this challenge affects only his
convictions for rape of a child and aggravated sexual abuse of a
child, which we reverse on unanimity grounds, see infra Part I.A.2,
we have no need to address this argument.
Granere also contends that Counsel was ineffective for not
seeking exclusion of certain portions of Beth’s testimony
regarding uncharged acts under rules 402, 403, and 404(b) of the
Utah Rules of Evidence. But because he offers no supporting
analysis that the challenged evidence was inadmissible under
those rules, he has not carried his burden of persuasion on this
issue, and we therefore do not reach the merits of that argument.
See Utah R. App. P. 24(a)(8).

20190593-CA 11 2024 UT App 1
 State v. Granere

that it was not preserved, we next proceed to review this issue for
ineffective assistance of counsel.

1. Preservation

¶28 An appellate court “generally will not consider an issue
unless it has been preserved for appeal.” Patterson v. Patterson,
2011 UT 68, ¶ 12, 266 P.3d 828. “An issue is preserved for appeal
when it has been presented to the district court in such a way that
the court has an opportunity to rule on it.” State v. Johnson, 2017
UT 76, ¶ 15, 416 P.3d 443 (quotation simplified). “To provide the
court with this opportunity, the issue must be specifically raised
by the party asserting error, in a timely manner, and must be
supported by evidence and relevant legal authority.” Id.
(quotation simplified).

¶29 Granere asserts that the State preserved this issue when it
requested an instruction on the aggravated sexual abuse charge
informing the jury that it is not required to “be unanimous as to
which [unlawful touch] has been proved beyond a reasonable
doubt, so long as each juror finds that at least one [unlawful
touch] has been proven beyond a reasonable doubt.” 7 The court
6F

7. This is an erroneous statement of the law. As concerns sexual
abuse of a child, “each unlawful touch of an enumerated body
part (or each unlawful taking of indecent liberties) constitutes a
separate offense of sexual abuse of a child under Utah Code
section 76-5-404.1(2).” State v. Alires, 2019 UT App 206, ¶ 21, 455
P.3d 636, cert. denied, 466 P.3d 1076 (Utah 2020). In other words,
“the sexual abuse of a child statute contains alternative actus reus
elements by which a person could be found guilty of sexual
abuse.” Id. (quotation simplified). And State v. Hummel, 2017 UT
19, 393 P.3d 314, clearly provides that it “is well-established in our
law” that “jury unanimity means unanimity as to a specific crime”
and that “a jury must be unanimous on all elements of a criminal
(continued…)

20190593-CA 12 2024 UT App 1
 State v. Granere

rejected the proposed instruction on the ground that “the
instructions already adequately address those issues.” 8 The court
7F

added that the proposed instruction “hasn’t been adopted by [the

charge for a conviction to stand.” Id. ¶¶ 28–30 (quotation
simplified).
The State likely confused this principle with the Court’s
holding in Hummel “that unanimity is not required as to theories
(or methods or modes) of a crime.” Id. ¶ 3 (emphasis added). See id.
¶ 65 (holding that alternative factual theories “of ways of fulfilling
such elements . . . are not a necessary part of a verdict, and thus
fall beyond the requirement of unanimity”). For example, where
a statute provides that a defendant can commit theft through
either deception or extortion, “[t]heft by deception and theft by
extortion are not and cannot logically be separate offenses.” Id.
¶ 21. Otherwise, a defendant “could be charged in separate counts
and be convicted on both” where only “one act of theft” actually
occurred. Id. See id. ¶ 61. Similarly, a “murderer who both poisons
and suffocates the same victim has committed only one murder.”
Id. ¶ 21. See id. ¶ 62. Thus, the jury need not be unanimous on the
defendant’s mode or method of committing the crime—i.e.,
deception versus extortion, or poison versus suffocation—so long
as the jurors unanimously agree that the defendant is guilty of the
charged conduct. See id. ¶ 61 (“The statutory examples of means
by which a person can meet the elements of the single crime . . .
are not alternative actus reus elements . . . . They are simply
exemplary means of satisfying the criminal elements defined by
the legislature[.]”) (quotation simplified). But this cannot be the
case with different prohibited touches in the context of sexual
abuse of a child because, as discussed above, separate touches
constitute “distinct counts or separate instances of the crime . . . ,
which would have to be charged as such.” Id. ¶ 28.

8. The court stated, “For example, the instructions tell them they
have to find each element, and it gives them ‘ors’ in those
elements, and the instruction tells them they have to be
unanimous in the verdict.”

20190593-CA 13 2024 UT App 1
 State v. Granere

Model Utah Jury Instructions] at this stage, and isn’t a required
instruction under” State v. Hummel, 2017 UT 19, 393 P.3d 314, and
that “it is not [the court’s] practice to give instructions just on
statements of the law.” Based on this interaction, Granere asserts
that “the unanimity issue was raised and considered by the court”
and is therefore preserved.

¶30 In support of his argument, Granere cites Kell v. State, 2012
UT 25, 285 P.3d 1133, in which our Supreme Court rejected the
State’s argument that an issue was not preserved because the
State, and not the appellant, was the party to raise the issue before
the district court. Id. ¶¶ 10–12. In so ruling, the Court stated that
“the two primary considerations underlying the preservation rule
are judicial economy and fairness.” Id. ¶ 11 (quotation simplified).
Concerning judicial economy, the Court noted that the district
court in that case “not only had an opportunity to rule on the issue
. . . , it did rule on it” after conducting “a thoroughgoing analysis
of the” issue. Id. And regarding fairness, the Court noted that
“[t]he State quite obviously had the opportunity to counter the
argument in the district court.” Id. ¶ 12. Based on these
considerations, the Court held “that the issue was properly
preserved.” Id. The current case is distinguishable.

¶31 Here, unlike in Kell, the trial court did not conduct “a
thoroughgoing analysis of the” issue before ruling. Id. ¶ 11.
Instead of addressing the merits of the State’s requested
instruction—which Counsel did not oppose—the court
side-stepped the issue by stating that “the instructions already
adequately address those issues.” Neither the State nor Counsel
offered pushback to this resolution of the motion. Furthermore,
because Counsel did not oppose the requested instruction, the
State did not have “the opportunity to counter the argument
[Granere now raises on appeal] in the district court.” Id. ¶ 12. See
id. (“Notions of fairness dictate that a party should be given an
opportunity to address the alleged error in the trial court. Having
been given such a chance, the party opposing a claim of error
might have countered the argument.”) (quotation simplified).

20190593-CA 14 2024 UT App 1
 State v. Granere

Thus, where in Kell the judicial economy and fairness
considerations weighed in the appellant’s favor, they weigh in the
State’s favor here.

¶32 For these reasons, we hold that Granere’s unanimity
argument was not preserved. But because Granere alternatively
argues that Counsel was constitutionally ineffective for failing to
request a proper unanimity instruction, we proceed to address the
unanimity argument through that lens. 9 8F

2. Merits of the Argument

¶33 The Utah Constitution provides that “[i]n criminal cases
the verdict shall be unanimous.” Utah Const. art. I, § 10. This
requirement of unanimity “is not met if a jury unanimously finds
only that a defendant is guilty of a crime.” State v. Saunders, 1999
UT 59, ¶ 60, 992 P.2d 951. See State v. Hummel, 2017 UT 19, ¶ 26,
393 P.3d 314 (stating that it is insufficient for a jury to find “only
that a defendant is guilty of a crime” and render “a generic ‘guilty’
verdict that does not differentiate among various charges”)
(emphasis in original; quotation otherwise simplified). Rather, it
“is well-established in our law” that a jury must be unanimous
“as to a specific crime” and “on all elements of a criminal charge

9. Granere also argues that the trial court plainly erred in not
properly instructing the jury on unanimity. Because we hold that
Counsel was ineffective for not requesting a proper unanimity
instruction and reverse Granere’s rape of a child and aggravated
sexual abuse of a child convictions on that ground, we reach his
plain error claim only as it relates to his remaining conviction for
object rape of a child. And because, as discussed in greater detail
below, Granere was not prejudiced by the absence of a proper
unanimity instruction as it relates to that conviction, see infra note
13, his plain error argument related to this conviction also
necessarily fails. See State v. McNeil, 2016 UT 3, ¶ 29, 365 P.3d 699
(“[T]he prejudice test is the same whether under the claim of
ineffective assistance or plain error.”).

20190593-CA 15 2024 UT App 1
 State v. Granere

for a conviction to stand.” Hummel, 2017 UT 19, ¶¶ 28–30
(quotation simplified). Thus, “where the evidence indicates that
more than one distinct criminal act has been committed but the
defendant is charged with only one count of criminal conduct, the
jury must be unanimous as to which act or incident constitutes the
charged crime.” 10 State v. Case, 2020 UT App 81, ¶ 21, 467 P.3d 893
9F

(quotation simplified), cert. denied, 474 P.3d 948 (Utah 2020). To
that end, “[w]here neither the charges nor the elements
instructions link each count to a particular act, instructing the jury
that it must agree as to which criminal acts occurred is critical to
ensuring unanimity on each element of each crime.” State v. Alires,
2019 UT App 206, ¶ 23, 455 P.3d 636, cert. denied, 466 P.3d 1076
(Utah 2020).

¶34 Here, the State charged Granere with one count each of
rape of a child, object rape of a child, and aggravated sexual abuse
of a child. The elements instructions included the general
statutory definitions for each charge, see Utah Code Ann.
§§ 76-5-402.1 (rape of a child), -402.3 (object rape of a child), -404.1
& -404.3 (collectively, aggravated sexual abuse of a child)
(LexisNexis Supp. 2022), 11 and provided that the offenses were
10F

alleged to have occurred between August 1, 2013, and April 1,
2014, but the instructions did not “conclusively link[] the
allegations to the counts listed in the instructions,” State v. Baugh,

10. For example, a verdict would not be unanimous if “some
jurors found a defendant guilty of a robbery committed on
December 25, 1990, in Salt Lake City, but other jurors found him
guilty of a robbery committed January 15, 1991, in Denver,
Colorado, even though . . . all the jurors together agreed that he
was guilty of some robbery.” State v. Saunders, 1999 UT 59, ¶ 60,
992 P.2d 951.

11. Because the applicable provisions of the Utah Code in effect at
the relevant time do not differ from those currently in effect in any
way material to this appeal, we cite the current version of the code
for convenience.

20190593-CA 16 2024 UT App 1
 State v. Granere

2022 UT App 3, ¶ 17, 504 P.3d 171, cert. granted, 525 P.3d 1257
(Utah 2022). Another instruction generally informed the jury that
its “verdict must be unanimous,” but it did not, as required by our
caselaw, “instruct[] the jury that it must agree as to which criminal
acts occurred.” Alires, 2019 UT App 206, ¶ 23.

¶35 At trial, only one allegation of object rape was presented to
the jury. 12 Beth testified that Granere gave her a blue Gatorade to
11F

drink that caused her to feel “weird” and “uneasy.” She then
testified that Granere took her to the bathtub, placed a “little silver
object” in her hand, and told her to insert it in her vagina. Because
Beth did not want to do this, he took her hand, “rubb[ed] his hand
and [her] hand, and put[] it” “inside the skin folds” of her vagina.
He then pushed the object further into her vagina, causing Beth to
feel a “stinging” and “burning” sensation and to bleed. 13 Beth did
12F

12. As relevant here, under the first element of the offense, “[a]n
actor commits object rape of a child if . . . the actor causes the
penetration or touching, however slight, of the genital or anal
opening of the individual by . . . (A) a foreign object; (B) a
substance; (C) an instrument; or (D) a device[.]” Utah Code Ann.
§ 76-5-402.3(2) (LexisNexis Supp. 2022).

13. Other than fleetingly suggesting as much in the fact section of
his brief, Granere has not offered argument supported by
reasoned analysis that Granere’s directing the silver object “inside
the skin folds” of Beth’s vagina before pushing it further in
constituted two separate acts of object rape of a child. See Utah R.
App. P. 24(a)(8). But even assuming, without deciding, that it did
constitute two separate acts, Granere’s claim of ineffective
assistance related to that conviction nonetheless fails for lack of
prejudice.
As an initial matter, physical evidence tended to corroborate
Beth’s testimony of object rape of a child. See generally Strickland v.
Washinton, 466 U.S. 668, 696 (1984) (“[A] verdict or conclusion
only weakly supported by the record is more likely to have been
(continued…)

20190593-CA 17 2024 UT App 1
 State v. Granere

not testify to any additional instances of abuse that would
constitute object rape of a child. 14 Accordingly, a more specific
13F

unanimity instruction was not required, and Counsel did not
perform deficiently with respect to that charge.

¶36 But the jury did hear testimony of more than one alleged
act that supported the rape of a child and the aggravated sexual
abuse of a child charges. Concerning aggravated sexual abuse of

affected by errors than one with overwhelming record support.”).
Furthermore, because the evidence supporting that conviction
was not “readily subject to different interpretations,” we are not
persuaded that the members of the jury would have found that
one act occurred but not the other. See State v. Alires, 2019 UT App
206, ¶ 29, 455 P.3d 636 (“Where the evidence is so readily subject
to different interpretations, we are not persuaded that the jury
would have unanimously convicted had the error not existed.”)
(quotation simplified), cert. denied, 466 P.3d 1076 (Utah 2020).
Indeed, Beth’s account of what transpired in the bathtub
remained consistent between her CJC interview and her trial
testimony, aside from the detail of whether the object was grey or
silver. For these reasons, even assuming the jury heard two
separate allegations of object rape of a child, we are not convinced
that Granere would have received a more favorable outcome as
concerns that conviction if the jury had been properly instructed
on unanimity. See Strickland, 466 U.S. at 694.

14. Beth testified that Granere later took her from the bathtub and
placed her on his bed, where he, among other things, inserted his
fingers into her vagina. Although digital penetration does
constitute object rape when perpetrated against a victim who is 14
years or older, see Utah Code Ann. § 76-5-402.2(2)(a)(ii)(E), (2)(b)
(LexisNexis Supp. 2022), it does not when the victim falls below
that age bracket, see id. § 76-5-402.3(2)(b). But it can constitute
sexual abuse of a child or aggravated sexual abuse of a child,
depending on the circumstances. See id. §§ 76-5-404.1(2), -404.3(2).

20190593-CA 18 2024 UT App 1
 State v. Granere

a child, 15 Beth testified that the first time Granere abused her, he
14F

took her from the bathtub and sat her on his bed. There, he
inserted his fingers into her vagina, rubbed “the top part of [her]
vagina,” and ran his hands up and down her waist, touching her
breasts and buttocks. Additionally, in the CJC interview, the
recording of which was entered into evidence, the jury heard Beth
recount that Granere touched her breasts on other occasions.
Lastly, depending on whether the jury interpreted “it” to mean
the silver or grey object or Granere’s hand, it is also possible that
the act of “rubbing his hand and [her] hand and putting it on . . .
the top of [her] vagina,” “inside the skin folds,” before pushing
the silver object into her vagina likewise constituted aggravated
sexual abuse of a child.

¶37 Concerning the rape of a child conviction, Beth testified at
trial that Granere raped her “many times.” 16 And in the CJC
15F

interview that was played for the jury, Beth told interviewers that
Granere would pin her down by her arms and place his penis in
her vagina, which she estimated happened “[l]ike five, seven
times.” The jury also heard Beth testify at trial regarding two
specific instances that supported that charge. She testified that the
instance she most vividly recalled occurred after Granere
massaged her with baby oil and offered her another drink that
caused her to feel sleepy. She stated that the next thing she

15. As relevant here, under the first element of the offense, “an
actor commits sexual abuse of a child if the actor . . . (A) touches
the anus, buttocks, pubic area, or genitalia of any child;
(B) touches the breast of a female child; or (C) otherwise takes
indecent liberties with a child.” Id. § 76-5-404.1(2)(a). See id.
§ 76-5-404.3(2)(a) (providing the circumstances under which
sexual abuse of a child is elevated to aggravated sexual abuse of a
child).

16. “An actor commits rape of a child if the actor has sexual
intercourse with an individual who is younger than 14 years old.”
Id. § 76-5-402.1(2)(a).

20190593-CA 19 2024 UT App 1
 State v. Granere

remembered was waking up to Granere on top of her with his
penis in her vagina, causing her to feel “a burning sensation.”
Then, when asked specifically whether that was the instance of
Granere inserting his penis into her vagina she remembered best,
Beth responded that it was but then she stated that there was
another instance she remembered that occurred at the cabin. She
then proceeded to recount the time when Granere woke her up
and told her, “I stuck it in all the way.”

¶38 Although the jury was generally instructed that its verdict
must be unanimous, it was not instructed “that it must be
unanimous as to the specific act underlying each count of
conviction.” Alires, 2019 UT App 206, ¶ 12. Such an instruction
was “critical to ensuring unanimity.” Id. ¶ 23. Otherwise, because
more than one allegation was presented at trial supporting the
rape of a child and aggravated sexual abuse of a child charges,
“the jurors could have completely disagreed on which acts
occurred or which acts were illegal, even if they all agreed that
abuse had occurred at some point,” State v. Mottaghian, 2022 UT
App 8, ¶ 56, 504 P.3d 773 (quotation simplified), cert. denied, 525
P.3d 1256 (Utah 2022), thereby effectively lowering the State’s
burden of proof at trial, see Alires, 2019 UT App 206, ¶ 25. And this
court has repeatedly held that failure to request a proper
unanimity instruction constitutes deficient performance. See, e.g.,
State v. Garcia-Lorenzo, 2022 UT App 101, ¶ 40, 517 P.3d 424, cert.
granted, 525 P.3d 1263 (Utah 2022); Baugh, 2022 UT App 3, ¶ 19;
Alires, 2019 UT App 206, ¶¶ 24–25. 17 Thus, as to those two
16F

17. In State v. Alires, 2019 UT App 206, 455 P.3d 636, cert. denied,
466 P.3d 1076 (Utah 2020), this court also considered the State’s
closing argument telling the jury it could convict the defendant on
four counts of aggravated sexual abuse of a child “based on any
of the six alleged touches of the [victim] in ‘any combination,’” id.
¶ 22, when it held that “[b]y failing to require juror unanimity as
to each underlying act, the instructions—coupled with the
prosecutor’s closing argument—effectively lowered the State’s
(continued…)

20190593-CA 20 2024 UT App 1
 State v. Granere

convictions, Counsel performed deficiently by not requesting a
proper unanimity instruction. But because the jury heard only one
allegation constituting object rape of a child, a more detailed
unanimity instruction than what was already provided was not
required as to that charge. As previously noted, Counsel therefore
did not perform deficiently, and Granere’s claim of ineffective
assistance with respect to his object rape of a child conviction fails.

¶39 But to prevail on a claim of ineffective assistance of counsel
with regard to his convictions for rape of a child and aggravated
sexual abuse of a child, Granere must also show prejudice. 18 See17F

Strickland v. Washington, 466 U.S. 668, 687 (1984). We hold that
Granere has established prejudice as to these convictions.

¶40 Concerning the conviction for rape of a child, as discussed
above, the jury heard evidence of two specific incidents
supporting that charge, as well as claims that Granere raped Beth

burden of proof,” id. ¶ 25. But this court subsequently clarified
that although the
statement by the prosecutor in Alires was ill-advised
and probably made the problem worse[,] . . . the
problem existed with or without the comment by
the prosecutor: the jury needed to be instructed,
either way, that it had to unanimously agree on the
specific criminal act underlying each count of
conviction.
State v. Garcia-Lorenzo, 2022 UT App 101, ¶ 38, 517 P.3d 424, cert.
granted, 525 P.3d 1263 (Utah 2022).

18. Granere asserts that because this argument involves a
constitutional error, the State bears the burden of showing that the
“error was harmless beyond a reasonable doubt.” Although this
is true for preserved constitutional errors, see State v. Silva, 2019
UT 36, ¶ 22, 456 P.3d 718, “for unpreserved constitutional claims,”
as is the case here, “the burden of demonstrating prejudice rests
on the defendant,” id.

20190593-CA 21 2024 UT App 1
 State v. Granere

“many times.” Additionally, the evidence supporting that
conviction was limited to Beth’s testimony, 19 and therefore was
18F

“not so overwhelming that we can conclude that the jury must
have unanimously agreed on [one] act—as opposed to [another]
alleged act . . .—as the basis for its conviction” on that count.
Baugh, 2022 UT App 3, ¶ 22. See Strickland, 466 U.S. at 696; Alires,
2019 UT App 206, ¶ 28. “It is therefore entirely possible that some
(but not all) of the jurors convicted on [that count] based on the
belief that the alleged [rape] occurred at the [cabin], while some
other (but not all) jurors convicted based on the belief that the
[rape] occurred at the apartment.” Baugh, 2022 UT App 3, ¶ 21.
For these reasons, we hold that as to his conviction for rape of a
child, Granere has demonstrated that he was prejudiced by
Counsel’s failure to request a more specific unanimity instruction.

¶41 The same is true for Granere’s conviction for aggravated
sexual abuse of a child. The evidence supporting this conviction
“was not overwhelming,” the testimony “was conflicting . . . as to
which acts occurred,” and “the surrounding circumstances were
sufficiently ambiguous.” Alires, 2019 UT App 206, ¶¶ 28–29.
Although there was physical evidence which might have
supported Beth’s allegation of digital penetration on the bed, 20 19F

there is also a notable discrepancy concerning Beth’s account of
the sexual abuse that occurred at that time. Namely, the jury heard

19. Although there was physical evidence of sexual abuse of Beth
in the form of two healed hymenal transections, the State told the
jury during closing argument that such injuries were attributable
to the object rape Granere perpetrated against her. This assertion
is consistent with Beth’s testimony that the object rape caused her
to bleed and that the digital penetration that followed caused her
to bleed even more. Thus, as concerns the rape of a child charge,
that physical evidence is of limited relevance.

20. But, as noted above, during closing argument the State
attributed the healed transections to the object rape committed in
the bathtub and not to the digital penetration. See supra note 19.

20190593-CA 22 2024 UT App 1
 State v. Granere

Beth state during the CJC interview that she did not remember
what happened after Granere took her from the bathtub to the bed
but that Granere told her the next day, “Oh didn’t you remember?
We had sex.” But at trial, Beth was able to recall what happened
on the bed—testifying that Granere inserted his fingers into and
rubbed her vagina, ran his hands up and down her waist, and
touched her breasts and buttocks—she did not state that Granere
raped her at that time. Furthermore, Beth’s testimony was
ambiguous as to whether Granere’s hand touched her vagina
while in the bathtub, and the evidence of the other times Granere
allegedly touched her breasts is limited to her CJC interview; Beth
made no such allegation at trial. For these reasons, we are
persuaded that Granere was also prejudiced as to his conviction
for aggravated sexual abuse of a child by reason of Counsel’s
failure to request a proper unanimity instruction.

¶42 The State argues that any prejudice Granere may have
suffered due to the lack of a proper unanimity instruction was
alleviated by the prosecutor’s closing argument. Specifically, the
State contends that during closing argument, the prosecutor
“identified only . . . one act of rape as the basis of the child-rape
count” and asked that the jury convict on the aggravated sexual
assault of a child charge based only on the series of touches that
occurred when Granere took Beth from the bathtub to the bed. 21 20F

¶43 Although the State may sometimes alleviate the prejudice
resulting from the failure to properly instruct a jury on unanimity

21. Although each separate touch that occurred on the bed
constituted “a separate offense of sexual abuse of a child,” State v.
Alires, 2019 UT App 206, ¶ 21, 455 P.3d 636, cert. denied, 466 P.3d
1076 (Utah 2020), the State argues that Granere nonetheless was
not prejudiced because there was no “reason for the jury to
differentiate between the alleged touches and disagree about
which, if any, occurred.” But because the jury heard allegations
supporting that charge that occurred at other times, see supra ¶ 36,
we need not address this argument.

20190593-CA 23 2024 UT App 1
 State v. Granere

by providing such guidance “in closing argument or elsewhere,”
see State v. Garcia-Lorenzo, 2022 UT App 101, ¶ 49, 517 P.3d 424,
cert. granted, 525 P.3d 1263 (Utah 2022), the State must do so by
“clearly identif[ying] for the jury which factual circumstance
formed the basis for [the] charge,” State v. Paule, 2021 UT App 120,
¶ 48, 502 P.3d 1217, cert. granted, 525 P.3d 1257 (Utah 2022). See
Garcia-Lorenzo, 2022 UT App 101, ¶¶ 49, 52; Alires, 2019 UT App
206, ¶ 22. For example, in Paule, 2021 UT App 120, the State was
able to cure the prejudice suffered by the lack of an adequate
unanimity instruction when the prosecutor told the jury during
opening argument “that the obstruction count was for when . . .
Paule took that shotgun, and threw it off the balcony in order to
hinder, delay, or prevent the investigation,” and during closing
argument “the prosecutor reemphasized that the obstruction
charge was for when Paule threw the gun over the balcony.” Id.
¶ 45 (quotation simplified). Such clarification did not occur here.

¶44 During closing argument, the prosecutor summarized the
three relevant counts as follows: “Count one being rape of a child.
Now, there what we’re talking about is him putting his penis
inside of her vagina. Count two, object rape of a child is him
putting an object inside of [Beth’s] vagina. Count three, him
touching her breasts, buttocks, or vagina[.]” The prosecutor then
proceeded to discuss the elements of each charge.

¶45 Regarding the rape of a child charge, the prosecutor
generally explained that the State was required to prove that
Granere “intentionally, knowingly, or recklessly had sexual
intercourse with” Beth and stated, “[W]e’ve heard [Beth] tell you
what happened to her all of those years ago, and so it’ll come
down to credibility.” In arguing that the prosecutor “identified
only one act of rape as the basis of the child-rape count” during
closing argument, the State points to a portion of the prosecutor’s
argument in which he described the object rape Granere
perpetrated on Beth in the bathtub. In that context, the prosecutor
stated that following the object rape, Granere next brought Beth
“into the bedroom, [laid] her on the bed, and then put[] his penis

20190593-CA 24 2024 UT App 1
 State v. Granere

inside of her.” 22 But more is required than mere mention of a
21F

specific allegation supporting a charge at some point during
closing argument. The State must “ma[ke] clear, in closing
argument or elsewhere, which act went with each count.”
Garcia-Lorenzo, 2022 UT App 101, ¶ 49. See Paule, 2021 UT App 120,
¶ 48. Here, the prosecutor did not tell the jury that it was limited
to considering only that specific allegation of rape. Thus, the
prosecutor’s closing argument did not alleviate the prejudice as to
that conviction.

¶46 Concerning the aggravated sexual abuse of a child charge,
the prosecutor told the jury that an element of the charge involved
touching “the anus, buttocks, or genitals of [Beth], even
accomplished through the clothes, although we heard that it was
skin and skin as he climbed on top of her and then rubbed up her
body, touching her breasts and her buttocks and also put his
fingers on her vagina.” Although this statement did reference the
episode of touching that occurred on the bed and although it was
made in the context of discussing the elements for that charge, the

22. We note that this summation is inconsistent with Beth’s trial
testimony. She stated that while on the bed, Granere inserted his
fingers into her vagina, rubbed the top of her vagina, and rubbed
her breasts and buttocks—but she did not testify that he raped her
on that occasion. When she finished recounting what occurred on
the bed, the State asked whether Granere inserted anything else
into her vagina. Beth responded, “He put his penis and his
tongue.” But when prompted to “[t]ell us about that,” Beth asked,
“What one?” After the State specified “[h]is putting his penis
inside you,” Beth proceeded to tell of the incident of rape that
occurred on a different occasion after Granere massaged her with
baby oil.
But in her CJC interview, which was played for the jury, Beth
told the interviewers that although she could not remember what
happened after Granere took her from the bathtub to the bed, he
told her the next day that they “had sex.” The State may have thus
been referring to that account when it made this statement.

20190593-CA 25 2024 UT App 1
 State v. Granere

statement likewise fell short because it did not “clearly identif[y]
for the jury” that that specific “factual circumstance formed the
basis for [the] charge.” Paule, 2021 UT App 120, ¶ 48 (emphasis
added). In other words, the prosecutor did not expressly tell the
jury that it could consider only that allegation for the aggravated
sexual abuse of a child charge. For this reason, the State’s
argument likewise fails as it relates to that conviction.

¶47 In summary, because Granere has not shown that Counsel
performed deficiently with regard to his conviction for object rape
of a child, that claim of ineffective assistance of counsel fails. But
he has established that that he received ineffective assistance
related to his convictions for rape of a child and aggravated sexual
abuse of a child. We therefore reverse those convictions and
remand to the trial court for further proceedings, but we proceed
to address Granere’s remaining arguments on appeal as they
relate to his conviction for object rape of a child.

B. Objection to Beth’s Testimony as Unreliable and
Incompetent

¶48 Granere argues that because “there were competency and
reliability issues with [Beth’s] allegations due to substantial
memory issues and an inability to recall and articulate the alleged
events,” her testimony was inadmissible under rules 602 and 403
of the Utah Rules of Evidence. Accordingly, he argues that
Counsel was ineffective for failing to seek exclusion of Beth’s
testimony on those grounds. We disagree.

¶49 “Utah law imposes a very low bar for establishing the
competency of a witness.” State v. Calliham, 2002 UT 87, ¶ 22, 57
P.3d 220. Under rule 601, “[e]very person is competent to be a
witness unless [the Utah Rules of Evidence] provide otherwise.”
Utah R. Evid. 601(a). Rule 602 includes one such limitation, stating
that “[a] witness may testify to a matter only if evidence is
introduced sufficient to support a finding that the witness has
personal knowledge of the matter.” In other words, a witness who

20190593-CA 26 2024 UT App 1
 State v. Granere

does not “have the opportunity and the capacity to perceive the
events in question” may not testify. State v. Eldredge, 773 P.2d 29,
33 (Utah 1989).

¶50 Here, in support of his contention that Beth’s inadequate
memory rendered her testimony incompetent and unreliable,
Granere points to Beth’s CJC interview in which, he asserts, Beth
“repeatedly said she didn’t remember clearly and intimated that
she was having ‘flashbacks.’” For example, he points to “when
first asked to describe one of the times from beginning to end,
[Beth] responded she couldn’t ‘really remember that much’ and
speculated that Granere offered her a soda, it tasted like it had
some kind of pill in it, she didn’t know what it was, but she ‘can’t
remember everything.’” Granere asserts that Beth “repeatedly
reported not remembering, and [she] theorized she forgot because
the pills would make her forget or knock her out.” And at one
point, she told the interviewers, “I remember half of what
happened. Holy crap. Why does that keep happening to me?
Every time it’s like a word or something, I remember something.”
She also stated, “Now that I’m older I understand more, and it’s
like coming back to (inaudible) memories.”

¶51 Granere contends that these “admitted memory gaps
indicate that [Beth] lacked the capacity to ‘observe’ even assuming
she had the ‘opportunity’ by being physically present.” Quoting
Ladd v. Bowers Trucking, Inc., 2011 UT App 355, ¶ 8, 264 P.3d 752,
Granere further asserts that Beth’s “attempt to fill her memory
gaps with speculation or claims of memories being ‘triggered’
long after the events ‘does not provide the required foundation to
show that [she] had the opportunity or the capacity to observe at
the time the event occurred, or that [she] is now able to recall
whatever [she] may have observed at the time.’” But the unique
facts present in Ladd distinguish it from the current case.

¶52 In that case, the plaintiff was involved in three automobile
accidents in quick succession, causing him to suffer “several
substantial injuries including six brain contusions.” Id. ¶¶ 2–3.

20190593-CA 27 2024 UT App 1
 State v. Granere

Because of this, the plaintiff “had no memory of the accidents
until four to six months later when he purportedly relived the
accidents in a dream.” Id. ¶ 3. In the lawsuit for negligence that
followed, the plaintiff described in a deposition “the details of his
dream, explaining that his account of the accident is actually him
reliving his dream,” id. ¶ 4 (quotation simplified), and that,
“putting the dream aside, he otherwise had absolutely no
recollection of the accidents,” id. ¶ 8. The district court ruled that
the plaintiff’s testimony regarding his dream of the accident was
inadmissible and granted summary judgment in the defendants’
favor. Id. ¶ 5. This court affirmed, holding that the plaintiff’s
testimony regarding his dream was inadmissible under rule 602
because his “attempt to fill his memory gap with the contents of a
dream he experienced several months after the events does not
provide the required foundation to show that he had the
‘opportunity’ or the ‘capacity’ to observe at the time the event
occurred, or that he is now able to recall whatever he may have
observed at the time.” Id. ¶ 8. See State v. Van Oostendorp, 2017 UT
App 85, ¶ 16, 397 P.3d 877 (“[T]he rule of Ladd is that a witness
cannot testify to a matter of which she has no memory.”).

¶53 Here, unlike in Ladd, Beth did not testify concerning events
that she did not remember. To the contrary, although Beth
struggled to recount certain events during the CJC interview, she
was able to recall other specific instances of abuse. For example,
she told the interviewers of the instance of object rape Granere
perpetrated against her in the bathtub. She also stated that
Granere repeatedly pinned her down by her arms and raped her.
There is also no indication that Beth’s account of the abuse was
based on a dream or other form of speculation—as was the case
in Ladd. Rather, Granere’s challenge to Beth’s testimony seems to
be based on the fact that she had some lapses in memory.

¶54 Our Supreme Court has expressly rejected rule 602 as a
means of rendering a child sexual assault victim’s testimony
inadmissible for lapses in memory. See Eldredge, 773 P.2d at 33
(rejecting the argument that under rule 602, “testimony of a

20190593-CA 28 2024 UT App 1
 State v. Granere

witness must be excluded if the witness’s memory of the subject
matter of the testimony is less than complete”). See also R. Collin
Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence
468 (2020–2021 ed.) (stating that “an incomplete memory should
seldom provide a basis for holding the witness incompetent”
under rule 602). Instead, the Court held that “in a case dealing
with the competency of a child sexual abuse victim, . . . lapses in
memory are appropriately dealt with under Utah Rule of
Evidence 403, which provides for the exclusion of testimony so
unreliable that its potential for unfair prejudice substantially
outweighs its probative value.” Eldredge, 773 P.2d at 33–34. See
State v. Fulton, 742 P.2d 1208, 1218 & n.15 (Utah 1987). Thus,
because under established precedent a motion to exclude Beth’s
testimony under rule 602 would have proven unsuccessful,
Counsel did not perform deficiently by not objecting to her
testimony on that ground. See State v. Kelley, 2000 UT 41, ¶ 26, 1
P.3d 546 (“Failure to raise futile objections does not constitute
ineffective assistance of counsel.”).

¶55 Under rule 403, “[t]he 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.
“[I]n determining the probative value and possible unfair
prejudice of a child’s testimony” under rule 403, the trial court
may consider several factors, including “the age of the child at the
time the relevant events occurred, the amount of time that has
elapsed, and the degree of recollection the child demonstrates.”
Fulton, 742 P.2d at 1218 n.15. The court may also “take into
account the child’s susceptibility to suggestion and whether the
child has been intentionally prepared or unconsciously
influenced by adults in such a way that it is likely the child is only
parroting what others have said about the relevant facts.” Id.

¶56 But Granere’s argument that Counsel was ineffective for
failing to object to Beth’s testimony under rule 403 is limited to the

20190593-CA 29 2024 UT App 1
 State v. Granere

mere assertion that “[m]any of these factors cut against the
admissibility of [Beth’s] testimony under Rule 403.” Granere does
not support this assertion with any analysis. Without more,
Granere has not carried his burden of persuasion on this issue, see
Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903; Utah R. App. P.
24(a)(8), and we do not discuss it further.

C. Video of Beth’s CJC Interview

¶57 Next, Granere contends that Counsel was ineffective for
playing Beth’s “unreliable and inadmissible” CJC interview for
the jury over the State’s objections. At trial, Counsel indicated that
the recording of the CJC interview—and not just the transcript—
was “critical” because he intended to use it “to show the jury” and
“to keep track of the times [Beth] laughs” and “focuses on the
camera.” The State objected to the recording, asserting that it was
not admissible under rule 15.5 of the Utah Rules of Criminal
Procedure because Beth was “no longer under the age of 14.” 23 22F

The State further argued that “unless there is some other valid
reason under the rules for which [the recording] should be played,
it shouldn’t be played” and suggested “that just merely playing
the CJC interview could be a problem going forward.” In
response, Counsel assured the court that he was “very concerned”
about “alienating the jury” and he had “all the same concerns that
we all have here.” The trial court granted Counsel’s request, and
as part of his cross-examination of Beth, Counsel played the entire
43-minute interview for the jury, pausing over 50 times to ask Beth
whether she had giggled or looked at the camera at a particular
instance. And during closing argument, Counsel tallied that Beth
had giggled 52 times and focused on the camera 22 times but did
not cry once.

23. “[R]ule 15.5 of the Utah Rules of Criminal Procedure provides
a procedure whereby the recorded testimony of children under
the age of fourteen may be played to a jury.” State v. Bragg, 2013
UT App 282, ¶ 20, 317 P.3d 452. See Utah R. Crim. P. 15.5(a).

20190593-CA 30 2024 UT App 1
 State v. Granere

¶58 Following his conviction, Granere moved for a new trial
arguing, in relevant part, that Counsel was ineffective for playing
the CJC interview for the jury. The court rejected this argument,
holding that whether the recording was admissible under rule
15.5 was irrelevant because Counsel “did not seek to admit the
video under Rule 15.5.” Rather, “Counsel sought to admit the
video to show that [Beth] was . . . not sympathetic . . . or was not
believable, that she giggled or played to the camera numerous
times during the interview.” Accordingly, the court determined
that Counsel did not perform deficiently because he “had a
strategy for undermining [Beth’s] credibility” by emphasizing her
unserious behavior “while reporting alleged abuse.” The court
further held that “a reasonable basis supported [this] strategy.”
We agree.

¶59 Granere contends that Counsel’s “tactic was not objectively
reasonable.” See State v. Ray, 2020 UT 12, ¶ 34 n.7, 469 P.3d 871
(“When inquiring whether counsel may have had a sound trial
strategy, it must fall within the wide range of reasonable
professional assistance. An objectively unreasonable strategy will
not suffice.”) (quotation simplified). He asserts that Beth’s
behavior during the interview could be explained away as a
“nervous laugh” and “had the likely effect of fostering sympathy
for the child.” He further argues that “[i]t was not reasonable to
expose the jury to a young child making damning accusations,
and maintaining those accusations in the face of intensive
cross-examination” or “to admit evidence of statements made in
that interview that were consistent with [Beth’s] trial testimony
and which plausibly supported the elements of the State’s case.”

¶60 Although playing the recording for the jury posed a risk of
backfiring, and although another attorney might have decided
against doing so, we cannot say that Counsel’s tactical decision to
challenge Beth’s credibility by playing the CJC interview was
objectively unreasonable. See Strickland v. Washington, 466 U.S.
668, 689 (1984) (“There are countless ways to provide effective
assistance in any given case. Even the best criminal defense

20190593-CA 31 2024 UT App 1
 State v. Granere

attorneys would not defend a particular client in the same way.”).
Although Beth’s demeanor during the CJC interview could be
attributed to nerves, Counsel’s interpretation of her behavior was
likewise plausible. Counsel also indicated that he had carefully
weighed the risks and benefits of this tactic. See Archuleta v.
Galetka, 2011 UT 73, ¶ 96, 267 P.3d 232 (“[R]easonably informed
strategic choices are almost unassailable.”). Finally, because a
significant portion of the State’s case against Granere hinged on
Beth’s credibility, Granere stood to benefit from Counsel’s gambit
if it proved successful and Beth’s demeanor during the CJC
interview negatively affected her credibility in the eyes of the jury.

¶61 For all these reasons, Counsel’s decision to play the
recording of the CJC interview at trial was not objectively
unreasonable and he therefore did not perform deficiently in so
doing.

D. Prosecutorial Misconduct

¶62 Granere argues that Counsel was ineffective for failing to
object to several instances of prosecutorial misconduct during
closing argument. 24 “Counsel for both sides have considerable
23F

latitude in their closing arguments. They have the right to fully
discuss from their perspectives the evidence and all inferences
and deductions it supports.” State v. Houston, 2015 UT 40, ¶ 76,
353 P.3d 55 (amended opinion) (quotation simplified).
Furthermore, “the law recognizes the prerogative of opposing

24. Granere raised this claim of ineffective assistance in his motion
for a new trial. The trial court rejected his argument, concluding
that “the prosecution’s comments . . . were not outside the wide
latitude afforded parties in closing argument” and that “[a]ny
irregularity in the comments was not prejudicial” because “the
jurors here were instructed that an attorney’s statement in closing
argument is not evidence, and they were instructed that they must
rely on their collective recollections of the evidence in reaching a
verdict.”

20190593-CA 32 2024 UT App 1
 State v. Granere

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.” State v. Hummel, 2017 UT 19, ¶ 110,
393 P.3d 314. Thus, when reviewing “an attorney’s failure to
object to a prosecutor’s statements during closing argument, the
question is not whether the prosecutor’s comments were proper,
but whether they were so improper that counsel’s only defensible
choice was to interrupt those comments with an objection.”
Houston, 2015 UT 40, ¶ 76 (quotation simplified). We hold that
Counsel did not perform deficiently when he did not object to any
of the alleged instances of prosecutorial misconduct recounted
below.

¶63 First, Granere contends that the State misrepresented to
the jury that Beth consistently recounted what Granere did to
her and where he did it, stating, “From the time that she told
[the interviewers] at the CJC interview, to the time she came
in here, took that stand, and told you her truth and it’s the same.”
Granere also asserts that for the State “to repeatedly maintain
that [Beth’s] consistency proved that she was telling ‘her truth’
crossed the line.” But reasonable counsel could have chosen
to forgo an objection and instead counter the State’s assertion
by pointing out the inconsistencies in Beth’s account, which is
exactly what Counsel did here. Counsel directly addressed the
State’s claim of consistency, stating, “And [the prosecution] says,
there’s no change in this trial [compared to what] she said in the
CJC interview. Wait, wait, wait.” Counsel then proceeded to
recount how the number of allegations between the CJC interview
and trial rose from “seven times” to “countless times.” Counsel
also stated that because Beth could go to Granere’s apartment
“only if someone picks her up and takes her over,” and Mother
testified that she did so only “two to three times,” Granere could
not have sexually abused Beth “countless times,” as Beth asserted
at trial. Because we cannot say that such a course of action fell
outside “the wide range of reasonable professional assistance”
and amounted to “an objectively unreasonable strategy,” Counsel
did not perform deficiently in pursuing this course of action. See

20190593-CA 33 2024 UT App 1
 State v. Granere

State v. Ray, 2020 UT 12, ¶ 34 n.7, 469 P.3d 871 (quotation
simplified).

¶64 Second, Granere asserts that in light of the fact that “[t]he
defense sought and was denied the opportunity not only to obtain
the medical records from” Beth’s hospital visit on the night of her
tenth birthday party, but also “to present an alternative source of
[the] injury,” the State committed prosecutorial misconduct when
it “specifically argued that Granere was the one who caused the
transection to [Beth’s] hymen, and told the jury this corroborated
[Beth’s] word.” Granere also complains that during rebuttal, in
response to the defense’s argument that the injury likely occurred
on the night of Beth’s hospital visit, the State told the jury that she
was examined “and everything’s normal.” But Granere cites no
legal authority, nor are we aware of any, in support of his
contention that it is improper during closing argument for the
State to discuss physical evidence that was the subject of an
unsuccessful rule 412 motion. Furthermore, the two transections
were physical evidence that corroborated Beth’s testimony that
she was sexually abused, and she pointed her finger at Granere as
the perpetrator of the abuse. Thus, the State was fully within its
right to discuss admissible evidence from its perspective along
with all the “inferences and deductions” the evidence supported.
Houston, 2015 UT 40, ¶ 76 (quotation simplified).

¶65 Counsel was likewise free to, and did, contend during
closing argument that the fact that Beth was hospitalized for
vaginal complaints—whatever the cause—on the night of her
tenth birthday party suggested that Granere was not the source
of the physical injuries. And it was in this context that the
State rebutted Counsel’s argument by stating that “they examined
her and everything’s normal.” This statement did not go as far
as to falsely assert that Beth underwent a vaginal exam—which
she did not—that revealed no transections, as Granere appears
to suggest. Rather, the statement can also readily be interpreted
to mean that the general examination Beth underwent did not
spark concerns that Beth suffered any specific trauma to her

20190593-CA 34 2024 UT App 1
 State v. Granere

genital region that night. As such, the statement also did not fall
outside the wide latitude afforded the State during closing
argument.

¶66 Third, Granere argues that the State went too far when
it offered a theory on rebuttal as to why Beth did not
immediately disclose the sexual abuse to Mother. The State
told the jury that because there must have been discussion
of menstrual periods when Beth went to the hospital with
complaints of pain, cramps, and spotting, Beth might have
believed that the vaginal bleeding and pain she experienced as
a result of the object rape was “a period” and might have
thought, “I don’t want to go back to this. I don’t need to tell my
mom. It’s a period.” Granere asserts that “[n]one of that theory
was supported by any evidence, however, and was fully
contrived from the prosecutor’s imagination.” But Counsel could
have reasonably believed that such a statement fell within the
wide latitude afforded each side during closing argument. It was
clear that the State was merely offering a theory as to why Beth
might not have immediately disclosed the sexual abuse—it did
not offer the assertion as a statement of fact. And such a theory
had a basis in evidence the jury heard at trial, i.e., that Beth had
gone to the hospital with complaints of pain, cramping, and
vaginal spotting and that, in light of the symptoms, it was likely
that periods were discussed. Additionally, reasonable counsel
could believe that an objection was not necessary because the
theory appeared to be too far-fetched to convince the jury,
especially in light of Counsel’s extensive argument that Beth’s
failure to more timely disclose the abuse went against “human
experience.”

¶67 Because none of the challenged statements “were so
inflammatory that [C]ounsel’s only defensible choice was
to interrupt those comments with an objection,” Houston, 2015
UT 40, ¶ 76 (quotation simplified), Counsel did not
perform deficiently by not objecting during the State’s closing
argument.

20190593-CA 35 2024 UT App 1
 State v. Granere

II. Rule 412 Evidence

¶68 Prior to trial, Granere filed a motion under rule 412 of the
Utah Rules of Evidence seeking to admit evidence that Uncle had
sexually abused Beth and that he—and not Granere—had caused
the two transections to Beth’s hymen. In May 2018, the trial court
held an evidentiary hearing on the motion at which Granere,
Mother, and Beth testified.

¶69 Granere testified that in mid-October 2013, some two
weeks into his relationship with Mother, both he and Uncle
attended Beth’s tenth birthday party. Granere stated that toward
the end of the party, Uncle asked Mother if he could tuck Beth and
her two younger siblings into bed and Mother agreed. Granere
did not hear “any noises” or screaming during that time. Granere
testified that Uncle reappeared half an hour later and left the party
in a hurry shortly thereafter.

¶70 The next day, Granere saw a picture Mother posted on
social media of Beth in a hospital bed looking “like she’s in pain.”
Granere stated that he texted Mother, who told him that Beth was
experiencing “a lot of cramping pain” and that she suspected Beth
had started menstruating for the first time. Mother later told
Granere that Beth had not, in fact, started her period that night
and that Beth “had just been spotting.” But Granere testified that
as the text message conversation progressed, Mother told him
“that there was a history with” Uncle and that she felt
uncomfortable it had taken Uncle half an hour to tuck the children
into bed. Granere stated that Mother then told him that Uncle had
raped her when she was in her teens and that, at a later point, she
told him that Uncle had been arrested for violating parole because
he had been around his girlfriend’s children. Granere stated that
he subsequently looked up Uncle online and discovered that he
was a convicted sex offender.

¶71 Mother testified that despite Uncle being a convicted sex
offender, she allowed him to babysit her children from May 2013,

20190593-CA 36 2024 UT App 1
 State v. Granere

when she first moved to Salt Lake City, until November 2013,
when he was arrested for violating parole. She explained that she
had no concerns about Uncle being alone with her children
because she trusted him. She denied that Uncle ever sexually
abused her when they were younger and stated that she never
would have allowed him to watch her children if that had been
the case. Mother also denied ever telling Granere that Uncle had
raped or sexually abused her. Rather, she stated that she had told
him that Uncle “used to beat me up.” She also did not recall Uncle
asking to tuck Beth and her siblings into bed on the night of the
party.

¶72 Mother stated that she took Beth to the hospital on the
night in question because Beth was experiencing “pains in her
stomach,” cramping, and vaginal spotting. At the time, she
thought that Beth might be starting her period, but she confirmed
that that did not turn out to be the case. She stated the hospital
never determined the cause of Beth’s complaints.

¶73 Beth testified last. She stated that she did not remember her
tenth birthday party but confirmed that she did not start her
period at that time. She remembered that she was given an IV at
the hospital and was certain that hospital staff did not perform a
vaginal exam on her. Beth denied that Uncle ever touched or
inserted anything into her vagina.

¶74 At the conclusion of the evidentiary hearing, the trial court
denied Granere’s rule 412 motion. The court ruled “that the
evidence fails to support that [Uncle] was the source of the injury,
and there is no basis for allowing the evidence” at trial. It also
found Beth’s testimony that Uncle never sexually abused her to
be credible. The court further ruled that even if the evidence was
admissible under rule 412, its admission at trial was nonetheless
precluded by rule 403 because it was not “relevant to a material
factual dispute” and because it “would be confusing and
misleading.”

20190593-CA 37 2024 UT App 1
 State v. Granere

¶75 Ten months later, in March 2019, Granere moved to
continue the trial based on newly discovered evidence relating to
his rule 412 motion. He alleged that he uncovered Adult
Probation & Parole records in which Uncle admitted that Mother
“was a past victim of his when they were juveniles” and that “on
multiple accounts he held her down and raped her.” Granere
argued that this new evidence directly contradicted Mother’s
denial at the evidentiary hearing that Uncle sexually abused her.
The trial court denied this motion, ruling that the newly
discovered evidence did not alter its prior analysis because it did
“not support that Uncle attacked” Beth nor did it “contradict
[Beth’s] testimony . . . that Uncle never touched her vagina or put
anything into her vagina.”

¶76 Following his convictions, Granere raised this issue a third
time in a motion for a new trial. In that motion, Granere included
a declaration from an investigator stating that Uncle’s girlfriend
told him that Uncle babysat Beth and her siblings overnight and
that a victim of Uncle’s told the investigator that Uncle had
sexually abused her and another girl when they were around
Beth’s age. The motion also included a declaration from Granere
stating that a fellow inmate who had served time with Uncle told
him that Uncle admitted to sexually abusing Mother and that he
was “getting away with uncharged sexual assault.” The
declaration also stated that a second inmate had speculated that
Uncle’s niece was the victim of the uncharged assault.

¶77 The court denied this motion. It first addressed Granere’s
argument that the court should not have made any credibility
determinations at the evidentiary hearing. Although it
acknowledged that it did make credibility determinations, the
court “clarif[ied] that ruling” by stating that Granere’s theory that
Uncle sexually abused Beth was “speculative.” The court also
reiterated that “[p]retrial evidence was insufficient to support the
admissibility of [Granere’s] theory.” Specifically, it stated that
“when the relevance of evidence depends on whether a fact exists,
proof must be introduced sufficient to support a finding that the

20190593-CA 38 2024 UT App 1
 State v. Granere

fact does exist” and that here “that proof was insufficient.” The
court further stated that even taking all Granere’s assertions “at
face value”—i.e., that Uncle sexually abused Mother, that Mother
permitted Uncle to babysit her children overnight, that Uncle
violated parole by being near his girlfriend’s children, that Uncle
was at Beth’s tenth birthday party and he tucked her into bed that
night, that later that night Beth was admitted to the hospital due
to pain and vaginal spotting, that Uncle sexually abused other
child victims, and that Uncle was overheard speaking of another
uncharged sexual assault that some speculated was perpetrated
against Uncle’s niece (Beth)—there was nonetheless “insufficient
proof to support that [U]ncle was the source of [Beth’s] injury in
the case or that [U]ncle abused” her. The court stated that
Granere’s theory “relies on speculation, guesswork, and hearsay.”

¶78 The court further stated that, in any event, “[t]he evidence
and speculation concerning [U]ncle as the perpetrator or the
source of [Beth’s] injury is also inadmissible under Rule 403”
because it was “confusing, misleading, distracting and time
consuming” and “would amount to a trial within a trial against
[U]ncle based only on conjecture.”

¶79 On appeal, Granere argues that the trial court abused its
discretion in excluding, under rules 403 and 412, evidence that
Uncle sexually abused Beth and that he was the cause of the
physical injuries that the State’s evidence attributed to the object
rape Granere allegedly perpetrated against Beth in the bathtub.
Because we ultimately affirm the court’s exclusion of the evidence
under rule 403, we have no need to address the court’s ruling that
the evidence was also inadmissible under rule 412. 25 See Utah R.
24F

25. Rule 412(a) bars all evidence of an alleged victim’s other sexual
behavior unless an exception enumerated in rule 412(b) applies.
See Utah R. Evid. 412(a)–(b); State v. Steffen, 2020 UT App 95, ¶ 15,
468 P.3d 568 (stating rule 412(a)’s prohibitions extend to
(continued…)

20190593-CA 39 2024 UT App 1
 State v. Granere

Evid. 412(b) (stating that a trial court may admit evidence that
would otherwise be inadmissible under rule 412(a) if the evidence
satisfies one of the enumerated exceptions and “if the evidence is
otherwise admissible under these rules”) (emphasis added).

¶80 Under rule 403, “[t]he 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.” Id. R. 403. Thus, in
conducting a rule 403 analysis, courts generally “indulge a
presumption in favor of admissibility.” 26 State v. Green, 2023 UT
25F

10, ¶ 78, 532 P.3d 930 (quotation simplified).

“evidence concerning a victim’s prior history of being sexually
abused”), cert. denied, 474 P.3d 944 (Utah 2020).

26. Despite the general admissibility presumption, our Supreme
Court has previously stated that “[w]hen applying rule 403 to the
admissibility of a rape victim’s past sexual conduct, there is a
presumption of inadmissibility,” State v. Boyd, 2001 UT 30, ¶ 41,
25 P.3d 985, under which “such evidence is admissible only when
the court finds under the circumstances of the particular case such
evidence is relevant to a material factual dispute and its probative
value outweighs the” dangers enumerated in the rule, id.
(emphasis added; quotation otherwise simplified). As noted, this
stands in contrast to the presumption of admissibility applied in
the typical rule 403 analysis, see State v. Green, 2023 UT 10, ¶ 78,
532 P.3d 930, which is derived from the rule’s plain language that
the probative value of the evidence must be “substantially
outweighed” by an enumerated danger to be excluded, Utah R.
Evid. 403 (emphasis added).
But because the Court has “recently ‘repeatedly eschewed
extra-textual or contra-textual judicial glosses on the Utah Rules
of Evidence,’” State v. Rallison, 2023 UT App 34, ¶ 25 n.7, 528 P.3d
(continued…)

20190593-CA 40 2024 UT App 1
 State v. Granere

¶81 Granere mainly argues that the trial court abused its
discretion in excluding the rule 412 evidence because it was
“highly probative of material factual issues”—i.e., the cause of the
two hymenal transections—and because “any ostensible
prejudice to the alleged victim was minimal” and the “risk of
unfair prejudice was low.” But this argument does not directly
address the court’s rulings. Specifically, in denying Granere’s rule
412 motion, the trial court ruled that the evidence was
inadmissible under rule 403 because it “would be confusing and
misleading.” And in denying his motion for a new trial, the court
stated that in addition to being “confusing and misleading,” the
evidence was also inadmissible under rule 403 because it would
be “distracting and time consuming” and “would amount to a
trial within a trial against [U]ncle based only on conjecture.” The
court’s ruling was entirely silent as to unfair prejudice or potential
prejudice to Beth. Thus, Granere’s arguments on this point miss
the mark and are irrelevant to our review of the court’s decision.

¶82 Granere briefly addresses the court’s actual rule 403
analysis by stating that “the evidence at issue would not have
unduly diverted the focus of the trial or confused the issues” but
“[i]nstead the use of this evidence went to one of the paramount
issues in this case—Did Granere engage in the alleged sexual
activity with [Beth] and cause this child’s hymenal injury as
stressed by the State?” But this bare assertion that the evidence
simply would not have been distracting, without any supporting

1235 (quoting State v. Biel, 2021 UT 8, ¶ 25, 484 P.3d 1172), and
because “an application of rule 403 that presumes inadmissibility
for rule 412 evidence is not indicated in the plain language of rule
403,” “we are not certain whether this presumption continues to
be applicable, and we wait for the supreme court to weigh in on
this issue,” id.
In the interim, because we are able to conclude that the trial
court did not abuse its discretion in excluding the rule 412
evidence under the typical rule 403 analysis, we need not address
this question further. See id.

20190593-CA 41 2024 UT App 1
 State v. Granere

argument or analysis, is insufficient to carry Granere’s burden of
persuasion on appeal that the trial court abused its discretion in
weighing the probative value of the evidence against the potential
that the evidence would be confusing, misleading, distracting,
and time-consuming. See Utah R. App. P. 24(a)(8). This is
especially the case where our standard of review is highly
deferential. See State v. Ashby, 2015 UT App 169, ¶ 31, 357 P.3d 554
(“We allow trial courts considerable freedom in applying rule 403
to the facts” and “will not overturn the trial court’s ruling on the
application of Rule 403 unless the abuse of discretion is so severe
that it results in a likelihood of injustice.”) (quotation simplified),
cert. denied, 363 P.3d 523 (Utah 2015). See also State v. Rallison, 2023
UT App 34, ¶ 26, 528 P.3d 1235 (“Sexual evidence presented under
rule 412(b)(2) may have a propensity to distort the jury’s
deliberative process, thereby confusing or misleading the jury.”)
(quotation simplified).

¶83 Accordingly, we affirm the trial court’s exclusion under
rule 403 of Granere’s proffered rule 412 evidence.

III. Inherent Improbability

¶84 Appellate courts “are not normally in the business of
reassessing or reweighing evidence, and . . . resolve conflicts in
the evidence in favor of the jury verdict.” State v. Prater, 2017 UT
13, ¶ 32, 392 P.3d 398 (quotation simplified). An exception arises
in certain “unusual circumstances” such as “when witness
testimony is so inconclusive or inherently improbable that it could
not support a finding of guilt beyond a reasonable doubt.” Id.
(quotation simplified). See State v. Robbins, 2009 UT 23, ¶ 14, 210
P.3d 288 (“A conviction not based on substantial reliable evidence
cannot stand.”) (quotation simplified). Such a claim “is difficult to
successfully establish” on appeal. State v. Cady, 2018 UT App 8,
¶ 18, 414 P.3d 974, cert. denied, 421 P.3d 439 (Utah 2018).

¶85 In determining whether a witness’s testimony is inherently
improbable, “the proper test is . . . whether reasonable minds must

20190593-CA 42 2024 UT App 1
 State v. Granere

have entertained a reasonable doubt that the defendant
committed the crime.” State v. Jok, 2021 UT 35, ¶ 32, 493 P.3d 665
(quotation simplified). To aid in the inherently improbable
analysis, “three factors that merit consideration” are “material
inconsistencies, patent falsehoods, and lack of corroborating
evidence.” Id. But courts are to avoid an “inflexible reliance on
these factors.” Id. Indeed, “a sufficiency of the evidence claim,
including a showing that testimony cannot support a finding of
guilt, is not sustained by merely meeting enumerated criteria
considered in a previous case.” Id. ¶ 36. “Rather, when weighing
the testimony in light of the other evidence, the testimony of the
witness must run so counter to human experience that it renders
the testimony inappropriate for consideration in sustaining a
finding of guilt.” Id. (quotation simplified).

¶86 In denying Granere’s motion to arrest judgment on
inherent improbability grounds, the trial court held that the
evidence the State presented was “sufficient to support each
element of each offense where the jury convicted.” It further held
that although there were some “inconsistencies and disputes in”
Beth’s testimony, “those inconsistencies and disputes were
presented to the jury, and the jury was left to sort it out and to
assess the credibility and the weight of the evidence.” Based on its
first-hand experience at trial, the court stated that Beth’s
testimony was “not incredibly dubious, absurd, impossible, or
self-contradictory, or inconsistent such that [it] should disregard
the jury’s verdict.” It also noted that Beth’s testimony was not
physically impossible and that it was corroborated by physical
injuries.

¶87 On appeal, Granere argues that Beth’s testimony was
inherently improbable because it was both physically impossible
and because it contained both patent inconsistencies and
inherently false statements. We disagree.

¶88 Granere asserts that Beth’s testimony regarding any sexual
abuse that occurred at the cabin was physically impossible

20190593-CA 43 2024 UT App 1
 State v. Granere

because this claimed “abuse took place . . . during the winter
months when the cabin had been shut down for the season” and
because he “was being monitored on a GPS ankle monitor during
the relevant time frame.” 27 But Granere’s assertion that the cabin
26F

was inaccessible at the time the abuse was alleged to have
occurred is wholly dependent on his father’s testimony, which the
jury was free to disbelieve. See State v. Torres, 2018 UT App 113,
¶ 20, 427 P.3d 550 (“The jury is free to believe or disbelieve all or
part of any witness’s testimony[.]”) (quotation simplified).
Indeed, in addition to Beth’s testimony, Mother also testified that
Granere twice took her and Beth to the cabin. Mother testified that
Granere once took Beth snowmobiling near the cabin. Thus, in the
face of contradictory testimony, the job fell to the jury to
determine credibility and which account to believe.

¶89 Concerning the GPS ankle monitoring evidence, the
detective stated that the ankle monitor would not have alerted
authorities if Granere had gone to the cabin during times that he
was supposed to be at work, and it was therefore possible for
Granere to spend a day at the cabin so long as he was back to his
Salt Lake apartment by curfew. Thus, although perhaps difficult,
it was not physically impossible for Granere to have abused Beth
at the cabin between mid-November 2013 and mid-March 2014.

¶90 Moreover, given the uncertain timeline of events, it is also
possible, as the State points out, “that the jury could simply have
squared any inconsistencies by finding that Beth’s description of
the years-old cabin abuse occurred before or after the timeframe
identified by Granere’s witnesses.” In other words, the cabin was

27. Although Granere’s object rape of a child was alleged to have
occurred at his apartment and not the cabin, we address these
challenges to Beth’s testimony because Granere contends that
“[t]he consistent falsehoods and wildly dramatic changes to the
allegations rendered [her] testimony completely unbelievable”
and it therefore should have been excluded in its entirety,
including her allegations of object rape.

20190593-CA 44 2024 UT App 1
 State v. Granere

supposed to be winterized and Granere wore the GPS ankle
monitor between November 2013 and March 2014. It was possible
for the jury to find that the alleged abuse at the cabin took place
sometime either before or after that time period. Indeed, the jury
instructions provided that the offenses for which Granere was
charged were alleged to have occurred between August 1, 2013,
and April 1, 2014. 28
27F

¶91 Next, in arguing that Beth’s testimony contained patent
inconsistencies and inherently false statements, Granere asserts
that she exhibited an “ever changing ‘memory’” in that the “[t]he
number and frequency of the alleged instances of abuse changed
throughout the duration of the investigation as well as during the
trial itself” and that “the time frame was also an ever-moving
target.” Granere points to four instances of this.

¶92 First, he asserts that Beth “initially reported in the CJC
interview that touching occurred over clothes,” but “[a]t trial, the
accusations morphed into countless rapes in both the Salt Lake
apartment and at the cabin.” But Beth reported much more than
over-the-clothes touching during the CJC interview, including
object rape and several instances of vaginal rape. Thus, this
assertion is incorrect. And in any event, additional allegations of
abuse made after a child’s initial disclosure does not render the
child’s testimony inherently improbable. See State v. Wells, 2014
UT App 13, ¶ 9, 318 P.3d 1251 (“[T]he simple fact that Child
alleged additional abuse later does not make Child’s testimony
inherently improbable.”). To the contrary, such disclosures are

28. The jury instructions are somewhat wide of the mark
concerning when the sexual abuse could have begun as Granere
did not meet Mother until September 2013. But Granere was
introduced to Beth as early as mid-October when he attended her
tenth birthday party. This allowed at least a two- or three-week
period during which Granere could have sexually abused Beth at
the cabin prior to it being winterized and the GPS ankle monitor
being placed on him.

20190593-CA 45 2024 UT App 1
 State v. Granere

“merely cumulative, and simply add[] more details in the later
statements.” Id. We thus see no material inconsistency here.

¶93 Second, Granere states that Beth “reported to [Nurse] that
Granere forced her to lick his penis,” but “[a]t trial, [Beth] instead
testified Granere licked her vagina.” But these statements are also
not materially inconsistent. Beth’s trial testimony that Granere
“put his . . . tongue” on her vagina does not contradict her earlier
statement to Nurse that “she had to lick his penis” as the two acts
are not mutually exclusive. Rather, as discussed above, the
additional disclosures of abuse were cumulative. See id. But even
if the two statements were inconsistent—which they are not—
“the fact that a witness’s trial testimony is somewhat at odds with
other evidence in the case, including perhaps that witness’s own
prior statement, is not enough to render that testimony inherently
improbable.” State v. Carrell, 2018 UT App 21, ¶ 53, 414 P.3d 1030
(quotation simplified), cert. denied, 425 P.3d 801 (Utah 2018).
Indeed, “[t]he question of which version of [a witness’s story] was
more credible is the type of question we routinely require juries
to answer.” State v. Prater, 2017 UT 13, ¶ 39, 392 P.3d 398.

¶94 Third, Granere asserts that “on the eve of trial, completely
new allegations were made of anal penetration.” At the time,
Counsel lodged an objection to this additional allegation and the
State stated, “To be honest, she doesn’t want to talk about it
anyway. So if they’re willing to forego talking about it, so will
we.” Thus, the court excluded evidence of that allegation. But
again, this was merely an additional disclosure and, for the same
reasons already discussed, this allegation was cumulative and did
not amount to a material inconsistency.

¶95 Fourth, Granere states that Beth’s timeline of the abuse has
been inconsistent. He points out that during the CJC interview,
Beth told officers that the abuse started some two or three months
into Mother and Granere’s seven-month relationship and ended
around the time they broke up. But at certain points during trial,
Beth testified that the abuse occurred over “the course of one to

20190593-CA 46 2024 UT App 1
 State v. Granere

two years.” 29 This is the sole inconsistency alleged on appeal that
28F

constitutes a material inconsistency. But in cases of child sexual
abuse, such an inconsistency, alone, does not rise to the level of
inherent improbability. See State v. Robbins, 2009 UT 23, ¶ 22, 210
P.3d 288 (stating that the child’s “inconsistent accounts regarding
the extent of the physical abuse she suffered, her age when the
abuse occurred, and what she was wearing at the time of abuse
may alone be insufficient to invoke the inherent improbability
exception”); State v. Virgin, 2006 UT 29, ¶ 38, 137 P.3d 787 (“[I]t is
not unusual that a child’s testimony be somewhat inconsistent,
especially in sexual abuse cases.”); State v. Dever, 2022 UT App 35,
¶ 36, 508 P.3d 158 (“Inconsistencies in a child’s testimony could
be explained by her age and lack of sophistication.”) (quotation
simplified); Wells, 2014 UT App 13, ¶ 10 (“[I]nconsistency alone
does not necessarily make a child’s testimony inherently
improbable.”). Here, Beth was ten years old at the time the abuse
began and thus, any inconsistency regarding the timeline of abuse
can readily be attributed to her young age. Accordingly, her
testimony was properly presented to the jury to consider any
dispute in the evidence and to weigh her credibility. See Prater,
2017 UT 13, ¶ 39.

¶96 Lastly, Granere does not engage with the evidence
presented at trial corroborating Beth’s allegations of sexual abuse.

29. Granere also asserts that at another point, Beth testified that
the abuse occurred “until the end of fifth grade” around May
2016, which would have been impossible because Granere was
living in Arizona at that time. But there was clearly some
confusion as to dates at that point. Beth’s CJC interview was held
in March 2016, but Beth asserted at trial—which was held some
three years later in 2019—that she was in sixth grade at the time
of the interview, not fifth. It is thus more likely that Beth intended
to state that the abuse lasted until 2015, which is consistent with
the account that despite Mother’s and Granere’s romantic
relationship ending in March or April 2014, they continued to
have contact with Granere until October 2015.

20190593-CA 47 2024 UT App 1
 State v. Granere

In denying Granere’s motion to arrest judgment, the trial court
discussed that the jury heard evidence corroborating Beth's
testimony. Specifically, the court pointed to evidence of the two
hymenal transections that “were consistent with penetrating
abuse.” Although this corroborating evidence of abuse does not
support every aspect of Beth’s testimony, it does lend credence to
her allegation that she was sexually abused. See State v. Skinner,
2020 UT App 3, ¶ 34, 457 P.3d 421 (“Corroborating evidence
sufficient to defeat [an inherent improbability] claim does not
have to corroborate the witness’s account across the board, in
every particular. It just has to provide a second source of evidence
for at least some of the details of the witness’s story.”), cert. denied,
462 P.3d 805 (Utah 2020).

¶97 In sum, with the exception of the inconsistencies
concerning the timeline of abuse, Granere’s challenges to Beth’s
testimony do not amount to physical impossibilities or material
inconsistencies. Additionally, the jury was presented with
physical evidence corroborating Beth’s testimony that she was
sexually abused. For these reasons, Beth’s testimony did not rise
to the level to which “reasonable minds must have entertained a
reasonable doubt that the defendant committed the crime,” State
v. Jok, 2021 UT 35, ¶ 32, 493 P.3d 665 (quotation simplified), and
Granere’s inherent improbability challenge therefore fails.

IV. Cumulative Error

¶98 Granere also argues that the cumulative effect of multiple
errors was prejudicial. “A reviewing court will reverse a jury
verdict under the cumulative error doctrine only if the cumulative
effect of the several errors undermines confidence that a fair trial
was had.” State v. Killpack, 2008 UT 49, ¶ 56, 191 P.3d 17 (quotation
simplified). See State v. Martinez-Castellanos, 2018 UT 46, ¶ 40, 428
P.3d 1038 (stating that the cumulative error “doctrine will not be
applied when claims are found on appeal to not constitute error,
or the errors are found to be so minor as to result in no harm”)
(quotation simplified). Because we see no error as concerns

20190593-CA 48 2024 UT App 1
 State v. Granere

Granere’s remaining conviction for object rape of a child, there are
no errors to cumulate, and the doctrine is inapplicable.

CONCLUSION

¶99 Because Counsel was ineffective for failing to request a
proper unanimity instruction, we reverse Granere’s convictions
for rape of a child and aggravated sexual abuse of a child and
remand for further proceedings on those counts. But because
Granere’s conviction for object rape of a child withstands all his
challenges on appeal, we affirm that conviction.

20190593-CA 49 2024 UT App 1