State v. Roberts , 438 P.3d 885 ( 2019 )

2019 UT App 9THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
CHAD JACOB ROBERTS,
Appellant.
Opinion
No. 20170616-CA
Filed January 10, 2019
Fourth District Court, Provo Department
The Honorable Thomas Low
No. 161401733
Michael D. Esplin, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
concurred.
POHLMAN, Judge:
¶1 Chad Jacob Roberts appeals his conviction for aggravated
sexual abuse of a child and also seeks a remand under rule 23B
of the Utah Rules of Appellate Procedure. We affirm Roberts’s
conviction and deny his motion for a rule 23B remand.
State v. Roberts
BACKGROUND 1
Sexual Abuse, Disclosure, and Investigation
¶2 Victim is the adoptive sister, and natural cousin, of
Roberts. After their biological father relinquished his parental
rights, Victim and her two older siblings (Sister and Brother)
were adopted by Roberts’s mother (Mother). 2 Roberts would
frequently visit the house where Mother and Victim lived and
would “cuddle” with Victim and Sister and read them books at
bedtime. Often, Roberts would “fall asleep with them in the
bed.”
¶3 Once, when Victim was about seven years old and
Roberts was in his mid-twenties, Roberts lay in Victim’s bed and
touched her vagina “skin-to-skin.” He “cuddled up against [her]
. . . with his body pressed against [her] back” and then “put his
hand down [her] underwear.” Roberts “patted” Victim’s vagina
“a few times” and then “just rested [his hand] there” before
resuming patting. This pattern continued for about thirty
minutes. Eventually, Victim “got out of bed and went in the
bathroom” because she “did not like what was happening.”
Thinking that Roberts had fallen asleep, Victim crawled back
into her bed. Again, Roberts “cuddled up against [her] and put
his hand down [her] pants.” He did not say anything to Victim,
or try to kiss or digitally penetrate her.
¶4 Because she “still loved and cared about” Roberts and
was “happy living at” Mother’s house, Victim “decided [she]
1. “We recite the facts from the record in the light most favorable
to the jury’s verdict.” State v. Kohl, 2000 UT 35, ¶ 2 n.1, 999
P.2d 7.
2. A court had already terminated the parental rights of the
children’s biological mother.
20170616-CA 2 2019 UT App 9State v. Roberts
was never going to tell anyone” what had happened that night.
Then, nearly ten years later, she disclosed the touching to
Brother and his fiancée (Fiancée). Victim had moved out of
Mother’s house and was living with her father, who testified
that, prior to the move, Victim “was struggling” and had
received treatment for “self-harming behaviors.” While Victim
was visiting Mother’s house one day, she and Brother started
drinking alcohol mixed with an energy drink. Brother and
Fiancée mentioned to Victim that they planned on “getting a
place” with Roberts. This made Victim fear that Roberts would
abuse Fiancée. Victim then became “very drunk,” and Brother
and Fiancée took her to the mall to “walk it off.” While there,
Victim became “hysterical,” “[fell] over in the parking lot,” and
repeated “over and over” that Roberts had raped her. Once she
calmed down, Victim explained to Brother and Fiancée that
Roberts “used to come lay in bed with her and touch her at
night,” but she did not offer any more details.
¶5 After this disclosure and a report made by Brother, police
interviewed Roberts. Roberts admitted that he would sleep in
Victim and Sister’s bunkbed and “cuddle with them,” but he
denied ever touching Victim inappropriately. The police
investigator asked whether on the night in question he could
have touched Victim’s vagina “accidentally,” and Roberts
responded, “Possibly,” but denied that it would have been for
sexual gratification.
Trial
¶6 At trial, the defense called Mother, who testified that
Roberts and Victim had a “[l]oving, caring” relationship. She
also testified that, although Roberts would cuddle with Victim
and Sister, their room was not far from hers and their doors were
“[a]lways open.” On cross-examination, the prosecutor asked
Mother whether she was ever interviewed by the Division of
Child and Family Services (DCFS) “about [her] being
emotionally abusive to” Victim. After Mother testified that she
20170616-CA 3 2019 UT App 9State v. Roberts
was aware of an accusation of emotional abuse but was not
interviewed by DCFS, defense counsel objected to the line of
questioning on relevance grounds. The trial court sustained the
objection, and the prosecutor moved on to another topic.
¶7 Later, during closing argument, the prosecutor twice
stated that Roberts’s penis was “pressed up against” Victim’s
buttocks as he lay with her. The second time, after the prosecutor
said that Roberts was “spooning with his front pushed against
[Victim’s] back with his penis around her buttocks,” defense
counsel objected. The trial court sustained the objection and
explained to the jury that there was no evidence in the record of
the “relative positions” of Roberts and Victim. The prosecutor
then told the jury that it could use its “common sense
understanding” to infer the relative positions of Roberts and
Victim as they lay in the bed. Defense counsel did not renew the
objection or ask the court to take any further action.
¶8 The defense’s strategy at trial was to focus on Roberts’s
lack of sexual intent rather than attack the credibility of Victim,
who had testified emotionally about the abuse. Roberts, who
testified at trial, admitted that he cuddled with Victim and Sister
and that he told police that he may have touched Victim’s vagina
accidentally, but he denied touching her with any sexual intent.
In his closing argument, defense counsel stated that he did not
think Victim was lying, and that the jury could believe both
Victim and Roberts and still find Roberts not guilty. Counsel
emphasized the isolated nature of the incident and argued that,
because he did not have “the specific intent to arouse or gratify
somebody’s sexual desire,” Roberts was not guilty.
¶9 At the close of evidence, the State asked the trial court “to
expand [by one year] the time frame that was originally pled” in
the information. Without hearing “much of an opposition” to
such an amendment, the trial court granted the request. After
being given instructions, including an instruction that counsel’s
“statements and arguments are not evidence,” the jury retired to
20170616-CA 4 2019 UT App 9State v. Roberts
deliberate. When it returned, the jury convicted Roberts of
aggravated sexual abuse of a child. Roberts appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 Roberts raises several issues on appeal that can be
separated into three categories. First, Roberts contends that the
prosecutor made improper statements during closing argument
that warranted a mistrial or a limiting instruction. Defense
counsel did not request these remedies at trial, and Roberts asks
us to review this unpreserved issue under the doctrines of plain
error and ineffective assistance of counsel. 3 See State v. Johnson,
2017 UT 76, ¶ 19, 416 P.3d 443 (explaining that plain error and
ineffective assistance of counsel are exceptions to the
preservation requirement). A trial court plainly errs when it
commits obvious, prejudicial error. See State v. Griffin, 2016 UT
33, ¶ 17, 384 P.3d 186. “An ineffective assistance of counsel claim
raised for the first time on appeal presents a question of law.” Id.
¶ 16 (quotation simplified).
¶11 Second, Roberts contends that the prosecutor’s inquiry of
Mother about a DCFS investigation constituted prosecutorial
misconduct and that defense counsel was constitutionally
3. Roberts first asserts that he preserved this issue by objecting to
the prosecutor’s closing argument. But he then proceeds to argue
the issue under the rubrics of plain error and ineffective
assistance of counsel. Although defense counsel objected to the
prosecutor’s statements at trial, he did not ask for either of the
remedies to which Roberts claims he was entitled—a mistrial or
a limiting instruction. Because Roberts did not seek these
remedies below, he failed to preserve his arguments that he was
entitled to such relief. See State v. Hummel, 2017 UT 19, ¶ 120, 393
P.3d 314; State v. Chavez-Espinoza, 2008 UT App 191, ¶ 25, 186
P.3d 1023.
20170616-CA 5 2019 UT App 9State v. Roberts
ineffective for not objecting sooner and moving to strike the
testimony. 4 This ineffective assistance claim again presents a
question of law. Id.¶12 Finally, Roberts raises a number of other ineffective
assistance claims relating to defense counsel’s choices not to
request a bill of particulars and not to attack Victim’s credibility,
which he asserts require a remand under rule 23B of the Utah
Rules of Appellate Procedure. “A remand under rule 23B will
only be granted upon a nonspeculative allegation of facts, not
fully appearing in the record on appeal, which, if true, could
support a determination that counsel was ineffective.” State v.
Calvert, 2017 UT App 212, ¶ 56, 407 P.3d 1098 (quotation
simplified).
ANALYSIS
I. Prosecutor’s Comments During Closing Argument
¶13 Roberts first contends that the trial court “committed
plain error by failing to sua sponte order a mistrial or by failing
to give a limiting instruction to the jury” after the prosecutor
twice remarked in closing that Roberts’s penis was “pressed up
against” Victim’s buttocks. Alternatively, he contends that his
defense counsel was constitutionally ineffective “by failing to
move for a mistrial or request[] a specific” limiting instruction in
response to those comments. We conclude, however, that a
mistrial was not required here and that, even assuming a
limiting instruction was required, the court adequately
instructed the jury. We also conclude that Roberts’s defense
4. Although Roberts objected at trial to the prosecutor’s
cross-examination, he allowed some questioning before objecting
on relevance grounds and did not ask for a limiting instruction.
20170616-CA 6 2019 UT App 9State v. Roberts
counsel was not ineffective in not requesting a mistrial or a
limiting instruction.
A. Plain Error
¶14 Not “every misstep of counsel in closing amounts to plain
error.” State v. Hummel, 2017 UT 19, ¶ 110, 393 P.3d 314. “We
must ask first whether counsel’s missteps were so egregious that
it would be plain error for the district court to decline to
intervene sua sponte.” Id. (emphasis omitted). And our supreme
court has long recognized that prosecutors have “considerable
latitude in their closing arguments.” State v. Dibello, 780 P.2d
1221, 1225 (Utah 1989). Specifically, “[t]hey have the right to
fully discuss from their perspectives the evidence and all
inferences and deductions it supports,” id., and have “the duty
and right to argue the case based on the total picture shown by
the evidence,” State v. Houston, 2015 UT 40, ¶ 76, 353 P.3d 55(quotation simplified). Thus, the court “must be certain” that a
prosecutor’s statement is “both highly prejudicial and
obviously” wrong before interrupting closing argument sua
sponte. Hummel, 2017 UT 19, ¶ 119 n.35; see also State v. King,
2006 UT 3, ¶ 14, 131 P.3d 202 (observing that a “trial court
should not assume the role of advocate” (quotation simplified)).
¶15 Intervening by declaring a mistrial is a particularly drastic
remedy that is warranted “only when no reasonable
alternatives” exist. See West Valley City v. Patten, 1999 UT App
149, ¶ 12, 981 P.2d 420. Indeed, declaring mistrials sua sponte “at
the end of counsel’s statement to the jury must be indulged with
a high degree of caution and circumspection.” State v. Dennis,
385 P.2d 152, 153 (Utah 1963). The Utah Supreme Court has
suggested that any duty to sua sponte declare a mistrial would
arise only if the underlying error “render[ed] the trial a farce and
a mockery.” Id. at 153 n.2 (quotation simplified).
¶16 Here, the prosecutor made two statements during closing
argument describing Roberts’s penis as being “pressed up
20170616-CA 7 2019 UT App 9State v. Roberts
against” Victim’s buttocks. Although Victim did not testify to
these specific facts, the jury heard evidence that Roberts had
“cuddled up against [Victim]” and was lying behind her in her
bed with his body “pressed against the back of [her body]” and
“pressed up against [her]” when he wrapped his arm around her
and touched her vagina. (Emphases added.) Given the wide
discretion afforded attorneys in closing argument and the
reasonable inferences that could be drawn from the evidence
about Roberts pressing against Victim, the prosecutor’s
statements were not so egregiously unreasonable that we can
fault the trial court for not intervening and sua sponte declaring
a mistrial. 5 See Hummel, 2017 UT 19, ¶ 110; Dennis, 385 P.2d at
153 & n.2.
¶17 Roberts alternatively suggests that the trial court plainly
erred by not providing a limiting instruction in response to the
prosecutor’s closing argument. But after defense counsel
objected to the prosecutor’s statements, the court sustained his
objection and gave some instruction to the jury. The court
explained to the jury that the objection to counsel’s argument
was sustained because “no evidence regarding the size of the
5. In support of his argument, Roberts compares the prosecutor’s
comments to statements made during closing argument in State
v. Akok, 2015 UT App 89, 348 P.3d 377, and State v. King, 2010 UT
App 396, 248 P.3d 984. Even assuming that the statements made
in Akok and King are comparable to those made by the
prosecutor in this case, both cases are procedurally inapposite.
Akok dealt with a preserved claim of prosecutorial misconduct;
defense counsel there moved for a mistrial. 2015 UT App 89, ¶ 8.
And in King, we stated that it was “not clear that the error would
have been obvious to the trial court” but merely assumed it was
for the purpose of resolving the issue based on lack of prejudice.
2010 UT App 396, ¶¶ 28–29. Thus, neither case helps Roberts
establish that the trial court here plainly erred.
20170616-CA 8 2019 UT App 9State v. Roberts
child versus the size of the adult was ever . . . proffered.”
Accordingly, the jury was specifically told there was no direct
evidence on this point. The court also twice instructed the jury
that counsel’s statements, including closing argument, “are not
evidence” and that it must rely on the evidence regardless of any
conflict with counsel’s statements. And on appeal, Roberts does
not articulate why the court’s instructions, taken as a whole,
were inadequate. In light of the instructions that the trial court
gave, and without some description of what more the court
should have done, we are not persuaded that the court plainly
erred in how it instructed the jury.
B. Ineffective Assistance of Counsel
¶18 Having concluded that the trial court did not plainly err,
we address Roberts’s alternative contention that defense counsel
was constitutionally ineffective when he “failed to request a
remedy, either moving for a mistrial or requesting a curative
instruction” in response to the prosecutor’s statements.
Although Roberts requests a rule 23B remand on this claim, it “is
not necessary to remand” when the existing record
“demonstrate[s] that counsel’s performance was not deficient.”
State v. Griffin, 2015 UT 18, ¶ 42.
¶19 Proving deficient performance is a “heavy burden.” State
v. Nelson, 2015 UT 62, ¶ 11, 355 P.3d 1031 (quotation simplified).
To meet that burden, Roberts “must overcome the strong
presumption that his trial counsel rendered adequate assistance
by persuading the court that there was no conceivable tactical basis
for counsel’s acts or omissions.” Id. ¶ 10 (quotation simplified).
In an analogous context, the Utah Supreme Court has recognized
“the prerogative of opposing counsel to swallow their tongue
instead of making an objection that might have the risk of
highlighting problematic evidence or even just annoying the
jury.” State v. Hummel, 2017 UT 19, ¶ 110 & n.34, 393 P.3d 314.
Indeed, several cases have recognized that the decision not to
object at all may be a “legitimate strategic decision.” State v.
20170616-CA 9 2019 UT App 9State v. Roberts
Bedell, 2014 UT 1, ¶¶ 24–25, 322 P.3d 697; see also State v. Houston,
2015 UT 40, ¶ 76, 353 P.3d 55; State v. Shepherd, 2015 UT App 208,
¶¶ 52–53, 357 P.3d 598.
¶20 We likewise conclude that defense counsel’s decision not
to request a mistrial or a limiting instruction here was a
legitimate strategic decision. Again, defense counsel did object,
and the trial court sustained the objection and gave some
correction to the jury, pointing out that there was no direct
evidence of Roberts’s and Victim’s relative body positions. When
the prosecutor then argued that his statements were a reasonable
inference from the evidence, defense counsel may have been
satisfied with the result because it highlighted the lack of direct
evidence that Roberts’s penis was pressed against Victim’s
buttocks. He also could have reasonably concluded that a
mistrial would not be granted, given that the prosecutor’s
statements were not a wholly unreasonable inference from the
evidence. Or counsel may have simply wanted to reserve for
himself the right to argue inferences from the evidence during
his own closing argument without increasing the likelihood of
the State objecting in return. See Shepherd, 2015 UT App 208, ¶ 53.
Thus, we conclude that defense counsel’s performance was not
constitutionally deficient, because there were conceivable tactical
bases not to request a mistrial in this case. See Nelson, 2015 UT 62,
¶ 10.
II. The Prosecutor’s Cross-examination of Mother
¶21 We next turn to Roberts’s contention that the prosecutor’s
cross-examination of Mother about a DCFS investigation into
allegations that she had been emotionally abusive to Victim was
improper and requires reversal of his conviction. The Utah
Supreme Court recently clarified that an unpreserved claim of
prosecutorial misconduct is not “a standalone basis for
independent judicial review.” State v. Hummel, 2017 UT 19,
¶ 111, 393 P.3d 314. Rather, unpreserved challenges of
prosecutorial misconduct must be reviewed “under established
20170616-CA 10 2019 UT App 9State v. Roberts
exceptions to the law of preservation,” namely, plain error,
exceptional circumstances, or ineffective assistance of counsel.
Id. ¶¶ 102, 111.
¶22 Roberts has not asserted exceptional circumstances or
plain error,6 but he has argued that his prosecutorial misconduct
claim should be reviewed under the rubric of ineffective
assistance of counsel. Specifically, Roberts contends that defense
counsel was ineffective “by failing to timely object” to this line of
questioning and for not requesting that “the testimony be
stricken.”
¶23 To establish ineffective assistance of counsel, Roberts
“must show both that counsel’s performance was objectively
deficient, and a reasonable probability exists that but for
the deficient conduct defendant would have obtained a
more favorable outcome at trial.” State v. Reid, 2018 UT App 146,
¶ 19, 427 P.3d 1261 (quotation simplified). In practice, we
6. It was initially unclear whether Roberts asserted plain error or
was relying on the now-defunct “standalone basis for direct
review of the actions of prosecutors.” Hummel, 2017 UT 19, ¶ 106
(quotation simplified); see also id. ¶ 111 (repudiating authority
recognizing prosecutorial misconduct as a standalone basis for
independent judicial review). After the State responded by
analyzing the claim for plain error, Roberts removed all doubt
by clarifying that he “did not claim that the trial court committed
plain error” but that “the prosecutor’s reference to [the] DCFS
investigation constituted prosecutorial abuse justifying reversal
of the conviction.” Because Roberts has not asked for plain error
review of this prosecutorial misconduct claim, and has not
analyzed the issue under that standard, we will not review it for
plain error. See, e.g., Chavez-Espinoza, 2008 UT App 191, ¶ 25
(refusing to address plain error where the defendant did not
assert or adequately brief it).
20170616-CA 11 2019 UT App 9State v. Roberts
often skip the question of deficient performance when a
defendant cannot show prejudice. See Strickland v. Washington,
466 U.S. 668, 697 (1984) (“If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.”); see, e.g.,
Reid, 2018 UT App 146, ¶ 20; State v. Goode, 2012 UT App 285, ¶ 7
& n.2, 288 P.3d 306. We follow that course here.
¶24 During cross-examination, the prosecutor asked
Mother about a DCFS investigation into an allegation that
she had emotionally abused Victim. Although defense
counsel ultimately succeeded in terminating this line of
questioning on relevance grounds, the jury heard Mother
testify that she did not recall that her sister had accused her of
emotionally abusing Victim and she denied that DCFS
interviewed her about the allegation. Roberts contends
that defense counsel performed deficiently by not objecting
sooner or moving to strike the testimony. Without
deciding whether defense counsel performed deficiently,
Roberts has not shown that but for that testimony it is
reasonably probable that he would have obtained a more
favorable outcome at trial.
¶25 Roberts contends that as a result of defense counsel’s
delayed action, “the jury was able to hear inadmissible evidence
prejudicial to [Mother’s] credibility.” But Roberts offers no
further explanation of how the evidence prejudiced him. He
states that “[w]ithout the inadmissible evidence, there would be
a likelihood of a more favorable verdict,” but his analysis ends
there. Roberts does not explain how the jury would have viewed
this relatively brief exchange or, even assuming the testimony
undermined Mother’s credibility, why Mother’s testimony was
important to Roberts’s defense. Without more, Roberts “has
failed to show that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.’” Reid, 2018 UT App 146, ¶ 39
20170616-CA 12 2019 UT App 9State v. Roberts
(quoting Strickland, 466 U.S. at 694). Therefore, his ineffective
assistance claim fails. 7
III. Ineffective Assistance of Counsel and Rule 23B Remand
¶26 Finally, Roberts raises a number of other ineffective
assistance of counsel claims, separate from those addressed
above, which he contends either require reversal of his
conviction or a remand to develop the record. As explained
above, the test for ineffective assistance of counsel is objectively
unreasonable performance and accompanying prejudice. State v.
Nelson, 2015 UT 62, ¶ 10, 355 P.3d 1031. If there are inadequate
“findings of fact, necessary for the appellate court’s
determination of a claim of ineffective assistance of counsel,” a
party may move for remand to the trial court for entry of those
facts. Utah R. App. P. 23B(a). But a remand under rule 23B is
“available only upon a nonspeculative allegation of facts, not
fully appearing in the record on appeal, which, if true, could
support a determination that counsel was ineffective.” Id.; see
also State v. Calvert, 2017 UT App 212, ¶ 56, 407 P.3d 1098. This is
7. Based on both the prosecutor’s closing argument and the
cross-examination of Mother, Roberts asserts that his claims for
prosecutorial misconduct should be reviewed under the
cumulative error doctrine. “Under the cumulative error doctrine,
we will reverse only if the cumulative effect of the several errors
undermines our confidence that a fair trial was had.” State v.
McNeil, 2013 UT App 134, ¶ 70, 302 P.3d 844 (quotation
simplified), aff’d, 2016 UT 3, 365 P.3d 699. “By its nature, this
doctrine has no application where only one error occurred.”
State v. Cruz, 2016 UT App 234, ¶ 78, 387 P.3d 618; accord State v.
Beverly, 2018 UT 60, ¶¶ 80–81. Here, we see no error relating to
the prosecutor’s statements during closing argument and
assume only one error relating to the prosecutor’s
cross-examination of Mother. Thus, we have no errors to
accumulate.
20170616-CA 13 2019 UT App 9State v. Roberts
because it “stands to reason that if the defendant could not meet
the test for ineffective assistance of counsel, even if [the] new
factual allegations were true, there is no reason to remand the
case.” State v. Griffin, 2015 UT 18, ¶ 20. Roberts has failed to
show that a rule 23B remand would help him support any of his
claims of ineffective assistance of counsel.
A. Bill of Particulars
¶27 First, Roberts contends that defense counsel was
“ineffective by not filing a bill of particulars” and a “demand for
specific date, time and place of commission of offense.” 8 He
acknowledges that “time is not necessarily an element of the
offense,” but he asserts that “the State is required to provide as
much evidence as it has.” This is true, see State v. Robbins, 709
P.2d 771, 773 (Utah 1985), but there is nothing in the record to
suggest that the State had information helpful to narrowing the
time frame that it did not provide. Thus, defense counsel was
not ineffective by not asking for a bill of particulars. See State v.
Johnson, 2015 UT App 312, ¶ 16, 365 P.3d 730 (noting “the failure
to file a futile motion” is not ineffective assistance of counsel). 9
8. Relatedly, Roberts contends in the introduction of his opening
brief that the trial court erred “in improvidently granting the
State’s oral motion to amend the Information by extending the
alleged time of commission of the offense by an additional year.”
But this contention is never mentioned again. We therefore
conclude that, to the extent Roberts intended to raise the issue,
the issue is inadequately briefed, and we decline to address it
further. See, e.g., State v. MacNeill, 2017 UT App 48, ¶ 84, 397 P.3d
626 (concluding that an appellant failed to carry his burden of
persuasion by failing to adequately brief an issue).
9. Although Roberts generally requests a rule 23B remand on his
ineffective assistance of counsel claims, he does not specifically
(continued…)
20170616-CA 14 2019 UT App 9State v. Roberts
B. Decision Not to Challenge Victim’s Credibility
¶28 Second, Roberts contends that defense counsel may have
been ineffective for not challenging Victim’s credibility at trial
and seeks a remand to “be able to determine whether or not
counsel had some strategy in abandoning the credibility issue.”
Specifically, Roberts raises the following related arguments:
• Defense counsel should have obtained Victim’s medical
records;
• Defense counsel should have investigated whether Victim
suffered from reactive attachment disorder (RAD);
• Defense counsel should have called Sister as a witness to
undermine Victim’s account of sexual abuse;
• Defense counsel should have challenged Victim’s
credibility through the testimony of Brother and Fiancée;
and
• Defense counsel should not have vouched for Victim in
his closing argument by saying that he did not believe
Victim was lying.
To support his arguments, Roberts includes an affidavit from a
private investigator detailing that Sister never saw or
experienced any inappropriate behavior herself and that Brother
and Fiancée stated to the investigator that Victim is untruthful.
Because these arguments all relate to defense counsel’s decision
not to attack Victim’s credibility, we analyze them together and
conclude that this claim does not require remand.
(…continued)
request a remand on this issue. Similarly, he does not allege facts
that would support a claim that the State withheld available
information that would have fixed the event in time with more
specificity. See Utah R. App. P. 23B.
20170616-CA 15 2019 UT App 9State v. Roberts
¶29 Ever since the Supreme Court’s decision in Strickland v.
Washington, 466 U.S. 668 (1984),“[j]udicial scrutiny of counsel’s
performance [has been] highly deferential.” Id. at 689. “Given the
strong presumption of competence, we need not come to a
conclusion that counsel, in fact, had a specific strategy in mind.”
State v. Isom, 2015 UT App 160, ¶ 37, 354 P.3d 791 (quotation
simplified). “Instead we need only articulate some plausible
strategic explanation for counsel’s behavior.” Id. (quotation
simplified). Only when “no reasonable attorney” would pursue
the chosen strategy will we determine that counsel has been
constitutionally ineffective. See State v. Ramos, 2018 UT App 161,
¶ 36, 428 P.3d 334, petition for cert. filed, Oct. 3, 2018 (No.
20180791); see also State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162(noting courts “will not question” tactical decisions “unless there
is no reasonable basis supporting them” (quotation simplified)).
¶30 Here, defense counsel reasonably chose not to attack
Victim’s credibility, focusing instead on Roberts’s lack of sexual
intent. The record reflects that, at least at one point, defense
counsel considered the strategy Roberts advocates on appeal.
For example, he intended to have Mother testify to Victim’s
character for truthfulness and introduce evidence that Victim
received counseling and therapy for self-harming behavior. In
addition, Mother informed defense counsel of her belief that
Victim suffered from RAD. At trial, however, defense counsel
abandoned this strategy. After Victim’s apparently emotional
testimony, during which Victim stated that she still loved
Roberts and that it was “hard” for her to testify at trial, it was
not unreasonable for defense counsel to decide that he did not
want to attack Victim’s credibility and appear unsympathetic to
the jury. 10
10. Defense counsel deferred his opening statement until after
the State presented all of its evidence, including Victim’s
testimony. This decision suggests that counsel might have
(continued…)
20170616-CA 16 2019 UT App 9State v. Roberts
¶31 We also note that this strategy was particularly reasonable
here. Roberts testified at trial and had already admitted to police
officers that he would often “cuddle” with Victim and would fall
asleep in her bed. And although not a confession, he conceded it
was possible that the touching Victim described could have
happened “accidentally.” With these facts, defense counsel could
reasonably decide to focus on Roberts’s intent, without
challenging the details of Victim’s story or appearing to attack a
vulnerable witness. Some may question whether this was the
best strategy. But “the question of deficient performance is not
whether some strategy other than the one that counsel employed
looks superior given the actual results of trial. It is whether a
reasonable, competent lawyer could have chosen the strategy
that was employed in the real-time context of trial.” State v.
Nelson, 2015 UT 62, ¶ 14, 355 P.3d 1031 (quotation simplified).
Without persuading us that defense counsel’s chosen strategy
was unreasonable, Roberts cannot establish that remand in this
case is necessary. See State v. Griffin, 2015 UT 18, ¶ 42; State v.
Garrett, 849 P.2d 578, 581–82 (Utah Ct. App. 1993). We therefore
deny his rule 23B motion.
CONCLUSION
¶32 The trial court did not plainly err when it did not sua
sponte order a mistrial or give a limiting instruction in response
to the prosecutor’s closing argument; neither was Roberts’s
defense counsel constitutionally ineffective for not requesting
that relief. We reject Roberts’s other prosecutorial misconduct
claim arising from the prosecutor’s cross-examination of Mother
because he did not assert it under the rubric of plain error and
has not established ineffective assistance of counsel. Finally,
(…continued)
wanted to see the jury’s reactions to Victim before he settled on
his plan to attack her credibility.
20170616-CA 17 2019 UT App 9State v. Roberts
Roberts’s other claims of ineffective assistance do not
demonstrate deficient performance, and his request for a rule
23B remand fails to acknowledge defense counsel’s chosen
strategy, which we conclude was reasonable. We therefore
affirm Roberts’s conviction and deny his rule 23B motion for
remand.
20170616-CA 18 2019 UT App 9