State v. Martinez

2021 UT App 11

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
CESAR R. MARTINEZ,
Appellant.

Opinion
No. 20180153-CA
Filed February 4, 2021

Fifth District Court, St. George Department
The Honorable Eric A. Ludlow
No. 161500109

Staci A. Visser and Ann M. Taliaferro, Attorneys
for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee

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

POHLMAN, Judge:

¶1 Cesar R. Martinez appeals his convictions for one count of
rape of a child and three counts of sodomy on a child. He asserts
that he is entitled to a new trial on three grounds. First, he
contends that because he is unable to reconstruct the record
surrounding a deadlock instruction given to the jury, he has
been denied due process and his constitutional right to an
appeal. 1 Second, he contends that the district court committed

1. A deadlock instruction “is a supplemental jury instruction
given by the court to encourage a deadlocked jury, after
(continued…)
 State v. Martinez

reversible error in failing to comply with rule 15.5 of the Utah
Rules of Criminal Procedure when it admitted the prior recorded
statement of the child victim (Victim). Third, he contends that
his trial counsel was constitutionally ineffective in failing to
object to the admission of evidence that he had shown
pornography to Victim. We reject these contentions and affirm.

BACKGROUND 2

¶2 After allegations surfaced in early 2016 that Martinez
sexually abused Victim, his then five-year-old daughter, the
State brought criminal charges against him. Martinez faced a
jury trial in 2017 on one count of rape of a child and three counts
of sodomy on a child.

The Trial

¶3 Six witnesses testified during the State’s case-in-chief:
Victim, her mother (Mother), her teenage brother (Brother), her
daycare provider, a doctor who examined her, and a Children’s
Justice Center supervisor. Martinez was the sole witness for the
defense.

¶4 Mother testified that in 1999 she and Martinez moved
from El Salvador to Utah. The couple had three sons and a
daughter, and they established businesses in the food industry.
Although they “los[t] everything” in 2010, they rebuilt and ran
another business. But the family suffered a tragic loss when their

(…continued)
prolonged deliberations, to reach a verdict.” State v. Bess, 2019
UT 70, ¶ 3 n.2, 473 P.3d 157 (cleaned up).

2. “On appeal from a jury verdict, we view the evidence and all
reasonable inferences in a light most favorable to that verdict
and recite the facts accordingly.” State v. Pinder, 2005 UT 15, ¶ 2,
114 P.3d 551 (cleaned up).

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 State v. Martinez

eldest son died in 2014. According to Mother, “everything
changed after that,” including her relationship with Martinez.
For example, during the six months before January 2016, the
couple had no sexual relations.

¶5 Mother testified that Victim’s behavior changed around
the same time. For instance, Mother saw Victim touching and
rubbing “her private part.” She also noticed that Victim refused
to give Martinez hugs and kisses. Additionally, Mother and
Brother observed that Victim made “a big deal” of not wanting
to go to bed at night. Both witnesses testified that Martinez
usually put Victim to bed and would stay in her room with the
door closed for “long periods of time,” perhaps “one to two
hours.” Of Victim’s behavior, Mother said, “Now I understand
why.”

¶6 Mother described one night in January 2016 when she
was at home with her children and Martinez was at work. While
sitting on the couch with Victim, Mother noticed that Victim was
acting “anxious and angry.” When Mother asked Victim what
was wrong, Victim told her, “I want to tell you something, but
[my brothers] are here.” Once her brothers left the room, Victim
told Mother, “It’s . . . something inappropriate about daddy.”
Victim then nervously said, “[H]e put away his clothes and put
his bee-bee in my butt.” Knowing that Victim used the term
“bee-bee” to refer to a penis or vagina, this news shocked
Mother. She asked Victim when this would happen. Victim
responded, “A lot of times. . . . [S]ometimes you was asleep, and
then other time[s] you wasn’t at home.” Victim indicated that
she did not tell Mother before because Martinez had told her to
be quiet and not to say anything. Mother asked her whether she
was hurt, and Victim responded, “When he did this, no, but
when he did this, put his tongue in my bee-bee and do this hard,
that is hard.”

¶7 Mother and Brother both testified as to what happened
next. That same night, Mother told Brother and her other
teenage son (Older Brother) what Victim had just disclosed.
After Victim went to sleep, Martinez arrived home, and Mother

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and her sons confronted him. Standing next to the door and with
a baseball bat in hand, Older Brother warned Martinez, “We
already know what you did to [Victim].” Martinez “started to
laugh” and “didn’t take it seriously at all.” Mother told Martinez
that Victim said that he “did something to her,” to which
Martinez responded, “I didn’t do anything. Someone is telling
her to say this. . . . [T]ake [Victim] to a doctor and you will see
nothing happened.” Martinez also said that he wanted to talk to
Victim and “find out what happened,” but the others told him
that he “wasn’t going to be alone with her.”

¶8 When Mother announced her intention to call child
protective services, Martinez told her that she would “ruin
everything,” and he threatened to disown everyone in the family
but Victim. Martinez went on to accuse others of doing
something to Victim, including their daycare provider’s son and
Martinez’s nephew. He also said that “it could have been”
Brother and Older Brother. Older Brother replied that Victim
“didn’t say any names,” she said “daddy.” Still laughing,
Martinez denied doing anything to Victim. Eventually, the
family went to sleep, with Martinez in his bedroom and Mother
in Victim’s bedroom.

¶9 The next day, Mother called child protective services, and
Martinez went to Las Vegas for work. Victim also approached
Mother again, telling her that Martinez showed her “pictures in
his tablet.” When Mother asked what kind of pictures, Victim
explained, “People that you aren’t supposed to see, people
naked, people doing things, and I—and he tried to make me pick
one. I have to pick one of the pictures.” Martinez had a tablet for
work, which he took with him to Las Vegas. Generally, only
Martinez and Victim had access to the tablet, and Brother
observed that when he asked to use the tablet, Martinez would
stay nearby and “wouldn’t let [the sons be] alone with it.” When
asked whether she had ever seen Martinez look at naked
pictures on the tablet, Mother responded that she had not seen
him do so but that she had seen him watch pornography on
television in their bedroom.

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 State v. Martinez

¶10 During Victim’s trial testimony, Victim said that Martinez
did “bad things” to her in her bedroom, Mother’s bedroom, and
the living room when Mother and her brothers were at work,
gone during the day, or watching television in another room.
Victim testified that Martinez would put her to bed at night with
the door closed and that he would take off all his clothes and ask
her to do the same. Victim then explained, “[H]e had his bee-bee
and put it in my bum, and he had his bee—tongue and touched
it on mine . . . .” Victim clarified that “bee-bee” means “private
part,” and she indicated that Martinez’s “bee-bee” touched her
“front” private part. She said that “private parts in the front” of a
boy are a “bee-bee” and that the private parts on the back are a
“[b]um,” but when asked what she calls “the private parts on a
girl on the front,” she said she did not know. Victim also said
that one time in Mother’s bedroom, Martinez “put chocolate on
his bee-bee” and told her “to suck it, but [she] said no.” And
when asked to describe Martinez’s “bee-bee,” Victim answered,
“A long straight line like—and then at the top there’s holes—
there’s a big hole.”

¶11 A few days after Victim disclosed the abuse, Mother took
Victim to the Children’s Justice Center to be interviewed (the
CJC interview). During the CJC interview, Victim said that when
she was four and five years old, Martinez “took his pants off and
he was putting it in [her] bee-bee.” He also “put it in [her] butt.”
She said “he wanted [her] to put his bee-bee in [her] mouth, and
[she] did not like that.” She explained that she “said yes one
time” but another time she said no. Victim further indicated that
“[m]ore than one time” Martinez touched his tongue to her “bee-
bee.” Additionally, when the interviewer asked Victim whether
she had “ever seen any pictures of any of the things that [they]
talked about,” Victim answered, “Well, I saw pictures [on
Martinez’s] tablet,” and explained that Martinez showed her
pictures of a “bee-bee.” When asked whether the pictures were
of “a boy bee-bee or a girl bee-bee,” Victim responded, “Just like
all kinds of them.”

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 State v. Martinez

¶12 A video of the CJC interview was played for the jury.
When the State asked the district court for permission to do so,
Martinez’s trial counsel told the court, “[W]e’ve stipulated to
foundation, but not to admissibility.” Trial counsel then
complained, “It’s hearsay. She’s testified. It shouldn’t come in.”
The court ruled that although it would not allow the video to go
back with the jury during deliberations, it would “allow the
playing of the tape,” reasoning that “there were certain gaps in
[Victim’s] testimony where she said she couldn’t remember
certain items.” Neither trial counsel nor the court addressed the
requirements of rule 15.5 of the Utah Rules of Criminal
Procedure before playing the video for the jury, but trial counsel
stated that he “still object[ed] to it,” and the court told him,
“You’ve got your objection.”

¶13 The State introduced testimony from a supervisor of the
Children’s Justice Center. The supervisor provided additional
foundation for the CJC interview and testified that the
interviewer who conducted the interview with Victim “just had
a baby” and “couldn’t be” at trial.

¶14 The doctor who examined Victim a few days after the CJC
interview also testified. Over the defense’s hearsay objection, 3
the doctor testified that Victim told her, “My dad put his bee-bee
on my bee-bee.” Victim said this happened skin-to-skin.
According to the doctor, Victim identified the location of her
“bee-bee” using a picture of a boy and girl; Victim “pointed to
the girl in the genital area.” When the doctor asked if she was
hurt, Victim said, “It didn’t hurt, but it did hurt when he put his
tongue on my bee-bee. It hurt a lot.” Victim also told the doctor,
“He made me put my mouth on his bee-bee,” and that, more
than once, Martinez “put his bee-bee in her butt.” In addition,
the doctor testified that the physical examination of Victim “was
normal” and that “[t]here was no evidence of any acute injury.”

3. On appeal, Martinez does not challenge the district court’s
overruling of this objection.

20180153-CA 6 2021 UT App 11
 State v. Martinez

¶15 Victim’s daycare provider testified that on the morning of
the day that Victim disclosed the abuse to Mother, the daycare
provider heard Victim say something that caught her “off
guard.” According to the daycare provider, Victim was playing
with two boys at the daycare when she overheard them “saying
potty words.” Although the language was “kind of age
appropriate,” the daycare provider attempted to “put a stop to
it.” As she initially approached the children, she heard Victim
say, “How about put a pee-pee on your mouth.” Taken aback,
the daycare provider later talked to Victim alone. When asked
“why she used those potty words,” Victim “shrugged” and
seemed “ashamed.” She then assured Victim that she “was not
mad,” and she advised Victim that if anybody is “inappropriate
with [her],” Victim should talk to an adult like her parents. The
daycare provider added that she could think of “a few
instances” when Victim was upset when her father picked her
up.

¶16 During a break in the testimony, Martinez’s trial counsel
raised an objection to the admission of any further evidence
regarding Martinez’s tablet. Trial counsel argued that such
evidence was irrelevant because “[t]his isn’t a charge of viewing
child pornography or having a child view pornography or
lewdness.” In response, the State indicated that, as noted in its
opening statement, police officers obtained Martinez’s tablet but
that they did not find any child pornography. Ultimately, trial
counsel’s objection was resolved with a stipulation. As stated by
trial counsel, the parties “stipulated that neither [side] would
argue anything about pornography or [tablets] or anything in
[their] closing statements.”

¶17 Martinez testified in his own defense. He denied abusing
Victim, stating, “I could not do something like that to my own
daughter.” His account of the night of Victim’s disclosure
differed from the version presented by Mother and Brother. For
example, Martinez testified that when he returned to his home
that night, he went to his bedroom and found his passport on a
table. Mother then told him to leave, saying that he had abused

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 State v. Martinez

Victim. Martinez asserted that he did not laugh; instead, he said
he felt the allegations against him were “like a shock” and he
responded by saying, “I cannot believe what you are telling me.”
When his sons entered the conversation, Martinez said to them,
“How would you feel if . . . somebody said you had done this?”
He also asserted that he did not accuse Older Brother, Brother,
his nephew, or the daycare provider’s son of molesting Victim.

¶18 At 4:38 p.m., the jury retired to deliberate. At 6:30 p.m.,
the jury was excused for the night. It resumed deliberations at
8:30 a.m. the next day. At 1:46 p.m., the court convened the
parties for an on-the-record hearing and stated,

The record shall reflect that earlier this morning I
had counsel in chambers. We were advised that the
jury was having a difficult time coming up with a
verdict. [Martinez’s trial counsel] was kind enough
to find the MUJI instruction,[4] and that was
instruction No. 14 that [the prosecutor] took a look
at, and we submitted it to the [jury]. I understand
that the jury reached a verdict.

The court clerk stated that the verdict came in at noon, while the
court thought “it was about 12:35.” The court then asked the
parties whether “[a]ny record needs to be made before” bringing
in the jury, and neither side indicated such a need. The jury
returned to the courtroom with a unanimous guilty verdict on
all counts. Martinez appeals.

The Rule 11 Proceedings

¶19 Before the appellate briefing process began, Martinez—
represented by new counsel—filed in the district court a
Statement of Proceedings pursuant to rule 11(g) of the Utah
Rules of Appellate Procedure. In the filing, Martinez identified

4. See generally Model Utah Jury Instructions 2d CR218 (2018).

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 State v. Martinez

“a potential issue on appeal regarding the instructions given to
the jury after it became deadlocked during deliberations” and
asserted that “there is a gap in the record concerning the
communications from and to the jury, the communications
between counsel and the trial court, the instruction actually
given the jury, and how the jury actually received such
instruction.” Based on his own investigation and contact with
the jurors, Martinez proposed a summary of the proceedings to
fill that gap. He also provided a copy of the deadlock instruction
(Instruction 14), which he had obtained from the clerk of the
district court. Instruction 14 stated,

As you have seen, this kind of a trial is a difficult,
exhausting enterprise for everyone involved. So
before we conclude that you are unable to reach a
verdict, the Court is asking that you make one
more good faith attempt to come to a verdict.

The verdict must represent the considered
judgment of each juror. In order to return a verdict,
it is necessary that each juror agree. Your verdict
must be unanimous.

It is your duty to consult with one another and to
deliberate. Your goal should be to reach an
agreement if you can do so without surrendering
your individual judgment.

Each of you must decide the case for yourself, but
do so only after impartially considering the
evidence with your fellow jurors.

Do not hesitate to reexamine your own views and
change your position if you are convinced it is
mistaken. But do not surrender your honest
conviction as to the weight or effect of the evidence

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 State v. Martinez

solely because of the opinion of your fellow jurors,
or just to return a verdict.

You are the judges—judges of the facts. Your sole
interest is to determine the truth from the evidence
in the case.

The Court also directs the jury to re-examine all of
the jury instructions, with an emphasis on
instructions 2, 4, 7, & 8. Consider the instructions
as a whole.

Martinez represented that while the parties had stipulated to
giving Instruction 14 to the jury, it was “unclear from the record
and investigation how exactly the jury was given” Instruction 14.
Finally, he asked the court to supplement the record with his
proposed summary or, in the event the State objected, to hold an
evidentiary hearing to clarify “the circumstances under which
the jury received [Instruction 14].”

¶20 After the State objected, the district court held an
evidentiary hearing on the matter. During the hearing, which
was held nearly two years after the trial, Martinez’s appellate
counsel questioned the district court judge about his memory of
the trial. The judge admitted that he had “very few recollections
of this case.” Although he was unable to recall many of the
circumstances surrounding the jury’s deadlock and the giving of
Instruction 14, the judge was “pretty sure” that Martinez’s trial
counsel prepared Instruction 14. The judge recalled no specific
objections to the instruction and believed that it had been
“approved through case law” and was “a MUJI instruction,” that
is, an instruction from the Model Utah Jury Instructions (MUJI).
The bailiff who served during Martinez’s trial also testified. He
stated that he had no “independent recollection” of Martinez’s
case but that when a jury is deadlocked, his general practice is to
take that information to the judge and then deliver the judge’s
answer back to the jury. The bailiff did not recall a jury ever
being returned to the courtroom for additional instruction.

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 State v. Martinez

¶21 The prosecutor who tried the case also testified. He
recalled discussing a MUJI instruction in chambers with the
judge and Martinez’s trial counsel. According to the prosecutor,
trial counsel indicated that he would provide the MUJI
instruction and, “because it was straight out of MUJI,” the
prosecutor did not object. The prosecutor admitted, however,
that he was “not certain” that his memory of these events
“pertained to this case” given that he had other trials with the
same judge and trial counsel.

¶22 Martinez’s trial counsel also testified. He recalled meeting
with the judge and the prosecutor and discussing what to do
about the jury being unable to reach a unanimous verdict. He
thought the jury had been deliberating for “several hours” by
this point—an “abnormally long” time. According to trial
counsel, the judge asked for a deadlock instruction, and
although trial counsel objected to sending a deadlock instruction
to the jury, the judge overruled that objection and instructed
counsel to find such an instruction. Trial counsel then emailed
the listserv for the Utah Association of Criminal Defense
Lawyers, asking for a “good” deadlock instruction or “case law
objecting to that.” He received a response from an attorney on
the listserv who sent him Utah’s “new model jury instruction for
a deadlocked jury.” Trial counsel reported what he had found to
the court, and he ultimately emailed the MUJI instruction to the
court clerk. This process took “an hour to an hour-and-a-half.”
Trial counsel remembered going back into the courtroom where
the judge read the MUJI instruction “in open court, but the jury
wasn’t [there].” The judge then said he would send the
instruction back to the jury. When asked how long afterward it
took for the jury to reach a verdict, trial counsel stated, “Well, as
with all [deadlock] instructions, it generally only takes another
half hour to an hour and they come back with a guilty [verdict],
and that’s why I always object to it. It wasn’t long.”

¶23 In lieu of testifying, seven jurors each completed written
questionnaires about the deadlock. They generally agreed that
they communicated their deadlock to the court through the

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 State v. Martinez

bailiff. Five jurors remembered that the bailiff returned with a
response, one juror could not recall who responded, and one
juror thought “the judge came in to talk to the jury.” As for
whether the response was written or verbal, one juror indicated
that it was written, two jurors suggested it was verbal, and the
rest did not know. Six jurors indicated that the response told
them to continue deliberating. When asked how long it took to
reach a verdict after receiving the response, some jurors said it
took “about 1 hour,” one to two hours, “several hours,” or
“another day,” while other jurors could not recall.

¶24 At the end of the hearing, the district court asked the
attorneys, “[W]here do I go from here? Do you have your record
that you’d like?” Martinez’s appellate counsel responded, “I
believe so,” and the hearing concluded. The court took no
further action.

ISSUES ON APPEAL

¶25 Martinez advances three issues on appeal. First, he
contends that he has been denied due process and his
constitutional right to an appeal “where the record cannot be
adequately reconstructed surrounding the deadlock instruction”
given to the jury. Second, he contends that the district court
erred in failing to comply with rule 15.5 of the Utah Rules of
Criminal Procedure when it admitted the CJC interview. Third,
he contends that his trial counsel was constitutionally ineffective
in failing to more forcefully pursue his objection to the
admission of evidence that Martinez had shown pornography to
Victim.

ANALYSIS

¶26 Each issue that Martinez raises on appeal has a
preservation problem. We therefore first set forth the
preservation rule and its relevant exceptions before we address
Martinez’s arguments.

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 State v. Martinez

¶27 “When a party fails to raise and argue an issue in the trial
court, it has failed to preserve the issue, and an appellate court
will not typically reach that issue absent a valid exception to
preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443.
The preservation rule “applies to every claim, including
constitutional questions.” Salt Lake City v. Kidd, 2019 UT 4, ¶ 31,
435 P.3d 248 (cleaned up). “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.” Johnson, 2017 UT
76, ¶ 15 (cleaned up). “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. (cleaned up). The
preservation requirement “puts the trial judge on notice of the
asserted error and allows for correction at that time in the course
of the proceeding.” Salt Lake City v. Josephson, 2019 UT 6, ¶ 12,
435 P.3d 255 (cleaned up). Preservation is also important because
it “allows an issue to be fully factually, procedurally, and legally
developed in the district court.” Id. ¶ 10 (cleaned up).

¶28 “When an issue is not preserved in the trial court, but a
party seeks to raise it on appeal, the party must establish the
applicability of” an exception to the preservation rule “to
persuade an appellate court to reach that issue.” Johnson, 2017
UT 76, ¶ 19. Two recognized exceptions are relevant here:
ineffective assistance of counsel and plain error. Id.

¶29 To prove ineffective assistance of counsel, a defendant
must establish both that “counsel’s performance was deficient”
and that “the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish the
first element, the defendant must show that counsel’s
performance “fell below an objective standard of
reasonableness.” Id. at 688. The second element requires that the
defendant show “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. “A reasonable probability
is a probability sufficient to undermine confidence in the

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 State v. Martinez

outcome.” Id. In analyzing this element, courts “consider the
totality of the evidence before the judge or jury,” recognizing
that “[s]ome errors will have had a pervasive effect on the
inferences to be drawn from the evidence, altering the entire
evidentiary picture, and some will have had an isolated, trivial
effect.” Id. at 695–96. Moreover, “proof of ineffective assistance
of counsel cannot be a speculative matter but must be a
demonstrable reality.” State v. Munguia, 2011 UT 5, ¶ 30, 253 P.3d
1082 (cleaned up). We evaluate an ineffective assistance of
counsel claim raised for the first time on appeal as a matter of
law. See State v. Ott, 2010 UT 1, ¶ 16, 247 P.3d 344.

¶30 To prove plain error, “a defendant must establish that
(i) an error exists; (ii) the error should have been obvious to the
trial court; and (iii) the error is harmful.” Johnson, 2017 UT 76,
¶ 20 (cleaned up). “An error is harmful when . . . [it] is of such a
magnitude that there is a reasonable likelihood of a more
favorable outcome for the defendant.” State v. Beverly, 2018 UT
60, ¶ 37, 435 P.3d 160 (cleaned up). Importantly, “the prejudice
test is the same whether under the claim of ineffective assistance
or plain error.” Id. (cleaned up). Prejudicial error thus occurs
“when there is a reasonable probability that but for the alleged
errors, the result of the proceeding would have been different.”
State v. Norton, 2021 UT 2, ¶ 35 (cleaned up).

¶31 With these concepts in mind, we now turn to the three
issues raised by Martinez on appeal.

I. The Deadlock Instruction

¶32 First, Martinez contends that he has been denied due
process and his constitutional right to an appeal because
“despite a remand hearing, he is unable to reconstruct the record
surrounding a deadlock instruction given to the jury.” He asserts
that “[t]his error prevents appellate review” of the coerciveness

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 State v. Martinez

of Instruction 14 under the circumstances. 5 The State
acknowledges that there are “some errors in the district court’s
creation of a record.” But it contends that Martinez has not
shown prejudice. According to the State, “prejudice is limited to
the court’s inability to review only preserved claims,” and
because “the record gaps all relate to an unpreserved coercion
claim,” Martinez “is not entitled to a new trial based on a
violation of his right to appeal.” We agree with the State.

¶33 To give our analysis context, we begin with an overview
of the law on deadlock instructions. 6 “Utah courts have
repeatedly upheld the use of deadlock instructions as a
permissible way to guide the jury to a fair and impartial verdict,
so long as the instruction is not coercive.” State v. Bess, 2019 UT
70, ¶ 58, 473 P.3d 157 (cleaned up). A particular deadlock
instruction “will be deemed coercive if (1) the language of the
supplemental charge can properly be said to be coercive per se,
or (2) it is coercive under the specific circumstances of the case.”
State v. Ginter, 2013 UT App 92, ¶ 6, 300 P.3d 1278 (cleaned up).
Thus, there are two types of challenges to deadlock instructions.
See id. Importantly, each type of challenge must be preserved,

5. Although Martinez suggests in his opening brief that perhaps
“the jury did not actually receive” Instruction 14, he
acknowledged at oral argument before this court that the record
shows Instruction 14 was, in fact, delivered to the jury. It is
uncertain, however, whether the instruction was delivered in
written or verbal form and whether it was delivered by the judge
or the bailiff.

6. This kind of jury instruction is also called an “Allen
instruction” or “an Allen charge,” named after the case in which
the United States Supreme Court “approved the use of
supplemental jury instructions to help a deadlocked jury reach a
unanimous verdict.” State v. Ginter, 2013 UT App 92, ¶¶ 4 n.2,
13, 300 P.3d 1278 (cleaned up) (citing Allen v. United States, 164
U.S. 492, 501–02 (1896)).

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and this court has held that an objection at trial based on the
ground of coercion per se “does not preserve for appeal” the
alternate ground of coercion under the circumstances. See State v.
Dalton, 2014 UT App 68, ¶¶ 54–55, 331 P.3d 1110 (cleaned up).
Martinez does not argue that Instruction 14 was coercive per se;
instead, his underlying claim is that Instruction 14 was coercive
under the circumstances.

¶34 The parties agree that a defendant may be entitled to a
new trial based on an inadequate record if he can establish three
conditions. 7 First, he must show that the district court erred in
creating a record of the proceedings. See State v. Burnside, 2016
UT App 224, ¶ 51, 387 P.3d 570 (explaining that “all district court
proceedings must be recorded” and that “the failure to ensure a
complete record of proceedings meets the standard for obvious
error by the trial court”). Second, he must show that the record
cannot be reconstructed, through no fault of his own. See West
Valley City v. Roberts, 1999 UT App 358, ¶¶ 11–13, 993 P.2d 252
(indicating that the “lack of an adequate record constitutes a
basis for remand and a new hearing only where,” among other
things, “the record cannot be satisfactorily reconstructed (i.e., by
affidavits or other documentary evidence)” through “no fault of
the appellant[]”). Third, he must show prejudice, meaning that
any remaining gaps in the record substantially affect his ability
to appeal a preserved issue. See State v. Menzies, 845 P.2d 220, 228
(Utah 1992) (explaining that a defendant’s burden to show
prejudice is not satisfied by the mere existence of transcription
errors); State v. Russell, 917 P.2d 557, 559 (Utah Ct. App. 1996)
(stating that reversal on the ground of an incomplete record

7. This court has stated that one of the conditions for remand is
that “the appellant timely requests the relevant portion of the
record.” West Valley City v. Roberts, 1999 UT App 358, ¶ 11, 993
P.2d 252; accord State v. Davis, 2013 UT App 228, ¶ 90, 311 P.3d
538, abrogated on other grounds as recognized by State v. Lyden, 2020
UT App 66, ¶ 34 n.6, 464 P.3d 1155. That condition is not
disputed here.

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 State v. Martinez

would be appropriate only if the defendant showed “that a
specific error occurred and that the missing record was critical to
its resolution” and stating that the record must be “adequate to
review specific claims of error already raised” (emphasis added)). 8

¶35 Although the parties agree that the first condition is met
and we assume, without deciding, that the second condition is
met here, Martinez has not satisfied the third condition. In
particular, he has not shown that he preserved the underlying
issue of whether Instruction 14 was coercive under the
circumstances, and because he did not preserve this issue, he
cannot show prejudice. The lack of preservation prevents us
from reaching the merits of the issue, and thus, his ability to
appeal the issue is not affected by any gaps in the record.

¶36 As discussed, the issue of whether a deadlock instruction
is coercive under the circumstances must be specifically raised
before the district court for it to be preserved for appeal. See

8. Martinez takes issue with the State’s assertion that “a
defendant must show that a preserved error exists in the missing
record.” (Emphasis added.) Yet this court has explained that
Utah law “does not require a complete record so appellate
counsel can go fishing for error; it only requires that there be a
record adequate to review specific claims of error already raised.”
State v. Russell, 917 P.2d 557, 559 (Utah Ct. App. 1996) (emphasis
added); see also State v. Menzies, 845 P.2d 220, 233 n.47 (Utah
1992) (“In dealing with the prejudicial effect of transcript
omissions in noncapital cases, courts have focused on whether
the omission impacted issues that had been preserved at the trial
level and raised on appeal.”). Martinez’s position might have
more persuasive force if the remaining gaps in the record
potentially obscured an objection from trial counsel on the
specific underlying claim of error. But as discussed, infra ¶ 39,
the remaining gaps would not reveal that Martinez actually
preserved the underlying claim (coercion under the
circumstances), and Martinez does not argue otherwise.

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 State v. Martinez

Dalton, 2014 UT App 68, ¶¶ 54–55. Here, Martinez’s trial counsel
did not argue to the district court, either at trial or in his post-
trial motion, that Instruction 14 was coercive under the specific
facts of the case.

¶37 At trial, counsel was given the opportunity to make a
record after the jury delivered its verdict, but there is no
indication that he lodged an objection that Instruction 14 was
coercive under the circumstances. It is true that the district court
failed to record the in-chambers conference that occurred when
the jury indicated that it was deadlocked. See generally Burnside,
2016 UT App 224, ¶ 51 (explaining that “conferences in
chambers and at the bench, not just . . . more formal proceedings
in open court,” must be recorded). But the court attempted to
remedy this omission by orally summarizing the in-chambers
conference when the courtroom proceedings resumed. The court
stated that during the conference, “[Martinez’s trial counsel] was
kind enough to find the MUJI instruction, and that was
instruction No. 14 that [the prosecutor] took a look at, and we
submitted it to the [jury].” The court’s summary did not indicate
any objection from either party. And when the court asked
whether “[a]ny record needs to be made before” bringing in the
jury, the parties declined to add anything to the record. Thus,
Martinez’s trial counsel did not assert a coercion-under-the-
circumstances objection to Instruction 14 during the trial itself.
Similarly, even though he could have engaged in post-trial
investigation on the subject, he also did not raise such an
argument in his motion for a new trial. 9

9. For example, trial counsel would have been aware of how
much time elapsed between the delivery of the instruction and
the verdict. If the timing or any other circumstance raised red
flags, counsel had nearly five months between the verdict and
the filing of his post-trial motion during which he could have
investigated further and raised the issue of coerciveness with the
district court.

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 State v. Martinez

¶38 Significantly, even in the rule 11 proceedings to
reconstruct the record, Martinez’s trial counsel did not testify to
having raised an argument about coercion under the
circumstances. Rather, trial counsel testified at the rule 11
proceedings that he “did object to sending an Allen instruction
back” and that he “always objects” to deadlock instructions
because “it generally only takes another half hour to an hour and
[the jury] comes back with a guilty [verdict].” Although
Martinez claims trial counsel’s stated objection was “to actually
giving [Instruction 14] to the jury under the circumstances,”
thereby preserving the coercion-under-the-circumstances issue,
we are not persuaded. Trial counsel’s stated objection was a
general objection to the giving of any deadlock instruction, and
the district court was justified in denying that general objection
in light of Utah’s case law approving the use of deadlock
instructions. See Bess, 2019 UT 70, ¶ 58. Trial counsel did not
indicate at the rule 11 proceedings that he ever complained
about facts specific to Martinez’s case that would make
Instruction 14 coercive under the circumstances. Given trial
counsel’s testimony and that the judge and the prosecutor had
less detailed memories of the trial and neither could recall any
objections from trial counsel, there is no evidence that Martinez
ever raised the specific argument that Instruction 14 was
coercive under the circumstances.

¶39 Moreover, we are confident that a coercion-under-the-
circumstances argument, had it been made, would not be
discovered in the remaining gaps in the record. Martinez
maintains that the record remains unreliable “as to the when,
where, and how the jury received the instruction to continue
deliberating.” For example, Martinez notes that there is
conflicting evidence on whether Instruction 14 was delivered in
verbal or written form and whether it was delivered by the judge
or the bailiff. Martinez also observes that the jury’s
communications to the court about the deadlock are not in the
record and that there is conflicting evidence on exactly how long
the jury deliberated before and after receiving Instruction 14. But
trial counsel was not present at any of these junctures and thus

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 State v. Martinez

could not possibly have raised any objections during these gaps
in the record. We therefore conclude that even considering the
remaining gaps in the record, Martinez did not raise an
argument before the district court that Instruction 14 was
coercive under the circumstances. As a result, he did not
preserve the issue for appeal.

¶40 Because Martinez did not preserve the issue of whether
Instruction 14 was coercive under the circumstances, we are
precluded from considering the issue unless he has established
the applicability of an exception to the preservation rule. See
State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443. But he has not
raised or argued that any exception would apply here.
Consequently, we are unable to review the issue of coerciveness
under the circumstances regardless of any gaps in the record.
Because his ability to appeal the issue has not been affected by
the gaps in the record, but rather is due to trial counsel’s
decision not to object to the circumstances surrounding the
giving of the deadlock instruction, Martinez has not shown
prejudice resulting from the incomplete record. We therefore
will not reverse and remand for a new trial on this ground.

II. The CJC Interview

¶41 Martinez next contends that the district court erred in
admitting the CJC interview without complying with rule 15.5 of
the Utah Rules of Criminal Procedure, which governs the
admission of previously recorded statements of child abuse
victims. In particular, Martinez asserts that the court failed to
find that “the person conducting the interview of the child in the
recording is present at the proceeding and is available to testify
and be cross-examined by either party” and that the recording
“is sufficiently reliable and trustworthy.” See Utah R. Crim. P.
15.5(a)(6), (a)(8). He asserts that this issue was preserved, but he
alternatively argues it under the rubrics of plain error and
ineffective assistance of counsel. The State concedes that district
courts “generally must make written or oral findings on each
factor under rule 15.5,” but it contends that Martinez did not

20180153-CA 20 2021 UT App 11
 State v. Martinez

preserve the issue and that his ineffective assistance claim fails
on its merits. We conclude that Martinez did not preserve the
issue. We further conclude that he has not demonstrated
prejudice and that, as a result, Martinez cannot succeed under
the rubric of either plain error or ineffective assistance.

¶42 Martinez first argues that he preserved this issue at trial
and through his post-trial motion. We disagree. During trial,
Martinez represented to the court that with regard to the CJC
interview, the parties had “stipulated to foundation, but not to
admissibility.” Through this stipulation, Martinez declined to
agree to the CJC interview’s admissibility. He then lodged an
objection on hearsay grounds, and the court denied it. But in
raising the hearsay objection, Martinez did not object to the
admissibility of the CJC interview on rule 15.5 grounds. He thus
failed to preserve such an objection because he did not
specifically present the rule 15.5 issue to the court “in such a way
that the court ha[d] an opportunity to rule on it.” See State v.
Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (cleaned up).
Furthermore, Martinez’s motion for a new trial did not preserve
the issue because Martinez could have, at trial, raised a rule 15.5
objection based on the interviewer’s absence and the CJC
interview’s reliability. See State v. Fredrick, 2019 UT App 152,
¶ 21, 450 P.3d 1154. Indeed, “raising an objection that could have
been raised at trial for the first time in a post-trial motion is
insufficient to preserve the issue for appellate review, because
doing so deprives the trial court of an opportunity to address the
claimed error, and if appropriate, correct it.” See id. (cleaned up);
cf. State v. Norton, 2021 UT 2, ¶¶ 94–95, 99 (deciding that an issue
regarding jury instructions and the use of a general verdict form
was unpreserved when, although the issue was raised at
sentencing, “it was too late” for the district court to “respond[] to
[the defendant’s] concerns”). For these reasons, Martinez did not
preserve this issue.

¶43 Given that Martinez’s rule 15.5 objection is unpreserved,
he asks that we review the issue for plain error and ineffective
assistance of counsel. He thus argues that the district court

20180153-CA 21 2021 UT App 11
 State v. Martinez

committed an obvious and harmful error by failing to make the
required findings under rule 15.5 before admitting the CJC
interview. 10 He also argues that his trial counsel was
constitutionally ineffective when he failed to object under rule
15.5 that “the actual interviewer was not present at trial.”

¶44 As discussed, “plain error and ineffective assistance of
counsel share a common standard of prejudice.” State v. Mitchell,
2013 UT App 289, ¶ 40, 318 P.3d 238 (cleaned up). To succeed
under either framework, Martinez must show that “there is a
reasonable probability that but for the alleged errors, the result
of the proceeding would have been different.” See Norton, 2021
UT 2, ¶ 35 (cleaned up). In other words, he has the burden to
prove that even if the district court had conducted a rule 15.5
analysis, either sua sponte or in response to a timely objection,
the court would have excluded the CJC interview and that, as a
result, there is a reasonable probability of a more favorable
outcome. See State v. Popp, 2019 UT App 173, ¶ 38, 453 P.3d 657;
see also State v. Beverly, 2018 UT 60, ¶ 37, 435 P.3d 160.

¶45 Martinez has not carried his burden to show prejudice.
Although he contends that the admission of the CJC interview
was prejudicial because statements made by Victim during the

10. The State contends that Martinez’s stipulation to foundation
“actively waived” or invited error, precluding plain error
review. See generally State v. Moa, 2012 UT 28, ¶ 27, 282 P.3d 985
(explaining that even plain error review is unavailable when a
party invites error). This presents a complicated question in this
case because the extent of Martinez’s stipulation to foundation is
somewhat unclear. Although the State makes some good points,
we do not resolve this question. Because we ultimately conclude
that Martinez’s claims of plain error and ineffective assistance
both fail for lack of prejudice, we will assume for the sake of
argument that Martinez did not invite or actively waive the
error, and we will proceed to analyze the merits of Martinez’s
plain error and ineffective assistance arguments.

20180153-CA 22 2021 UT App 11
 State v. Martinez

interview were “necessary to establish all of the elements of the
multiple charges,” he has not demonstrated that the district
court would have excluded the CJC interview had the court
properly analyzed it under rule 15.5. In particular, Martinez has
not shown that had the court evaluated whether the CJC
interview was “sufficiently reliable and trustworthy,” see Utah R.
Crim. P. 15.5(a)(8), the court would not have admitted it into
evidence. Though Martinez labels the interview as “unreliable,”
he never explains why. He does not identify a single problem
with the interview technique or any other concern that would
have led the court to question the interview’s reliability.
Additionally, Martinez has not shown that the CJC interview
would have been excluded based on the interviewer’s absence
from trial. See id. R. 15.5(a)(6). The State argues that had the court
or Martinez taken issue with the interviewer’s absence, it likely
would have moved for a continuance so that it could secure the
interviewer’s presence at another time. Martinez offers no
rebuttal to the State’s argument or any reason to conclude that it
is likely the court would have excluded the CJC interview rather
than continue the trial or otherwise secure the interviewer’s
participation.

¶46 Without showing that it is reasonably likely that the CJC
interview would have been excluded, Martinez cannot show a
reasonable likelihood that trial counsel’s deficiencies and the
district court’s failure to make rule 15.5 findings would have
altered the evidentiary picture. He thus has not demonstrated a
reasonable probability of a more favorable outcome.
Accordingly, his claims of plain error and ineffective assistance
of counsel based on rule 15.5 are unavailing.

III. The Evidence of Showing Pornography to Victim

¶47 Lastly, Martinez challenges the admission of the
testimony that he showed Victim pornography on his tablet,
claiming it was “other bad act evidence” under rule 404(b) of the
Utah Rules of Evidence that was “unnoticed, inadmissible, and
prejudicial.” He acknowledges that although his trial counsel

20180153-CA 23 2021 UT App 11
 State v. Martinez

objected to “some of the pornography evidence,” counsel’s
objection was only “made after substantial evidence had already
been admitted” and was “not specifically” made under rule
404(b). Martinez thus asks us to consider this issue under the
ineffective assistance exception to the preservation requirement.
Accordingly, he contends that his trial counsel was ineffective in
failing to lodge a timely and specific objection to testimony
about the pornography. We conclude that this ineffective
assistance claim fails because Martinez has not established
prejudice.

¶48 To show prejudice resulting from his trial counsel’s
failure to timely object to testimony about his showing
pornography to Victim, Martinez must establish that had trial
counsel objected and succeeded in excluding the testimony,
there is a reasonable probability that the jury would have
reached a different result. See Strickland v. Washington, 466 U.S.
668, 694 (1984).

¶49 Martinez seeks to show prejudice by arguing that the
State “focused a substantial amount of its case on showing that
[he] had shown [Victim] pornography” on his tablet. He also
argues that the testimony undermined his credibility when the
case “hinged on credibility determinations” and that the
testimony “painted him as a sexual deviant.” We are not
persuaded.

¶50 First, contrary to Martinez’s assertion, the State did not
“focus[] a substantial amount of its case” on the claim that
Martinez had shown Victim pornography on his tablet. The
pornography was mentioned in the State’s opening statement
and briefly in Victim’s CJC interview and Mother’s and Brother’s
trial testimonies. But the vast majority of the State’s case-in-chief
was concentrated on the charged conduct of rape and sodomy
on a child, Victim’s descriptions of that conduct, Victim’s
behaviors, and other circumstantial evidence supporting the
charges against Martinez.

20180153-CA 24 2021 UT App 11
 State v. Martinez

¶51 Second, there is no reason to suspect that the testimony
about pornography tipped the scales in favor of the jury
believing Victim’s version of events over Martinez’s denials. The
same witness—Victim—was the main source of her claimed
exposure to pornography and the evidence of the charged
conduct. Without evidence corroborating Victim’s story about
seeing pornography on the tablet, it was unlikely that her
unsubstantiated claim led the jury to credit her allegations of
abuse. In other words, the fact that Victim claimed Martinez
showed her pornography—a claim the State did not
independently prove—did not make her claims of abuse any
more or less credible.

¶52 Martinez nevertheless stresses that the prosecutor
mentioned in opening statement that the police could not “find
anything” on his tablet when they searched it. Martinez then
complains that the prosecutor’s statement suggested that he
“intentionally erased [the tablet] after the allegations were
made,” thus raising an “inference of consciousness of guilt . . .
[that] supported [Victim’s] credibility” over his. But there was
no actual evidence presented that Martinez deleted the
pornography, and the jury was instructed that attorneys’
statements are not evidence. Cf. State v. Gilliard, 2020 UT App 7,
¶¶ 38, 40, 457 P.3d 1128 (stating that instructing the jury that
“opening statements were not evidence” mitigated any prejudice
from “the mere exposure to the jury of the State’s single
reference to [certain] potential testimony in opening statements”
when that potential testimony was later excluded); State v.
Montes, 2019 UT App 74, ¶ 37, 442 P.3d 1247 (noting that an
opening statement “is not evidence” (cleaned up)). The single
statement by the prosecutor was unlikely to sway the jury’s
credibility determinations.

¶53 Finally, Martinez suggests that testimonial references to
pornography prejudiced him because it led the jury to see him
“as a sexual deviant.” But the evidence before the jury regarding
the charged conduct was “far more egregious than” any
evidence that Martinez showed pornography to Victim. See State

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 State v. Martinez

v. Hatch, 2019 UT App 203, ¶¶ 30–34, 455 P.3d 1103 (concluding
that the defendant was not prejudiced by evidence that he had
shown the child victim “a shoebox full of pornographic
magazines” where, among other things, the jury heard “far more
incriminating” evidence that the defendant committed sodomy
on the victim). Indeed, the jury heard much “more inflammatory
and graphic testimony” about Martinez when it heard the details
of how he raped and sodomized Victim. See id. ¶ 31.

¶54 For the foregoing reasons, Martinez has not established
that even if his trial counsel performed deficiently by failing to
secure the exclusion of testimony about pornography, there is “a
reasonable probability that the verdict would have been
different absent the excludable evidence.” See State v. Edgar, 2017
UT App 54, ¶ 13, 397 P.3d 656 (cleaned up). As a result, he
cannot establish ineffective assistance of counsel. See id.

CONCLUSION

¶55 Martinez’s asserted grounds for reversal fail due to the
lack of prejudice. Although the district court erred in not
keeping a complete record of the proceedings related to the
jury’s deadlock, Martinez cannot establish prejudice because he
did not preserve his underlying claim that the deadlock
instruction was coercive under the circumstances. He also has
not demonstrated prejudice stemming from the district court’s
non-compliance with rule 15.5 of the Utah Rules of Criminal
Procedure, and his related claims of plain error and ineffective
assistance of counsel therefore are unsuccessful. Finally,
Martinez has not shown that he was prejudiced by his trial
counsel’s failure to object to evidence that he showed Victim
pornography, and he therefore cannot prevail on his related
claim of ineffective assistance. We thus affirm Martinez’s
convictions.

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 State v. Martinez

CHRISTIANSEN FORSTER, Judge (concurring):

¶56 I concur in the majority’s determination that the district
court’s failure to keep a complete record of the deadlock-
instruction proceedings was error but that Martinez has not
demonstrated that he was sufficiently prejudiced by this lack of
a complete record so as to entitle him to a new trial. But I write
separately to highlight the importance of the district court’s
responsibility to record and preserve the record of any in-
chambers discussions and any interaction by the court or the
court’s staff with the jury during its deliberation.

¶57 There is no question that here the district court erred in
failing to record the in-chambers discussion with counsel upon
being informed of the jury’s inability to reach a verdict and to
make any record of the communication between the court and
the jury and how the jury received Instruction 14 (a copy of the
actual instruction was made part of the record more than a year
after the trial). “The responsibility of a trial court in what is
expressly designated a court of record to ensure that
proceedings are properly recorded is a point we made in the first
year of this court’s existence.” State v. Burnside, 2016 UT App
224, ¶ 51, 387 P.3d 570. This court has reiterated many times that
all proceedings must be recorded, including in-chambers
conferences. See, e.g., State v. Suarez, 793 P.2d 934, 936 n.3 (Utah
Ct. App. 1990); Briggs v. Holcomb, 740 P.2d 281, 283 (Utah Ct.
App. 1987) (“Although consistently making a record of all
proceedings imposes a greater burden on the trial court . . . , it is
impossible for an appellate court to review what may ultimately
prove to be important proceedings when no record of them has
been made.”).

¶58 I understand how overworked and overextended the
district court judges in this state are, and I acknowledge that
counsel bears part of the responsibility “to make certain that the
record they compile will adequately preserve their arguments
for review in the event of an appeal.” Birch v. Birch, 771 P.2d
1114, 1116 (Utah Ct. App. 1989) (cleaned up). But here the
district court’s failure to record the in-chambers discussion with

20180153-CA 27 2021 UT App 11
 State v. Martinez

counsel or to memorialize what interaction occurred with this
jury and how Instruction 14 was presented to an apparently
deadlocked jury did a disservice to Martinez and his appellate
counsel by hampering their attempt to re-create that record two
years post-trial.

20180153-CA 28 2021 UT App 11