State v. Popp , 2019 UT App 173 ( 2019 )

2019 UT App 173THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JUSTIN WILLIAM POPP,
Appellant.
Opinion
No. 20180224-CA
Filed October 31, 2019
First District Court, Brigham City Department
The Honorable Brandon J. Maynard
No. 171100138
Staci A. Visser and Ann M. Taliaferro, Attorneys
for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.
HARRIS, Judge:
¶1 A jury convicted Justin William Popp of two counts of
sodomy upon a child. Popp appeals his convictions, claiming
that the trial court erred in several respects, and that his trial
counsel provided ineffective assistance. In connection with his
ineffective assistance claims, Popp filed a motion, pursuant to
rule 23B of the Utah Rules of Appellate Procedure, asking us to
remand the case to the trial court for supplementation of the
record. For the reasons that follow, we reject Popp’s claims that
the trial court erred, as well as all of his claims of ineffective
assistance that are based on the appellate record. However, we
agree with Popp that remand for supplementation of the record
is necessary on one of his claims for ineffective assistance, and
State v. Popp
therefore partially grant his rule 23B motion and remand for the
limited purpose of conducting further proceedings on that claim.
BACKGROUND 1
¶2 In 2007, when F.H. was approximately three years old, her
mother (Mother) began dating Popp. Shortly thereafter, Popp
and Mother, along with F.H., moved in together. Popp and
Mother had a child (B.J.) together in 2008, and eventually
married in 2013. A little more than a year later, however, their
relationship soured; they separated in January 2015 and finalized
their divorce in July 2015.
¶3 The divorce proceedings were contentious, and the
divorce court eventually entered an order awarding Popp and
Mother joint physical custody of both children but, due to
Mother’s work schedule, awarding Popp the majority of the
parent-time and ordering Mother to pay Popp child support.
Although Popp is not F.H.’s biological father, neither Mother nor
Popp wanted to “split up the kids” at that point, so they worked
out an arrangement where the children would continue to reside
largely with Popp, and would visit Mother three weekends each
month. For about fifteen months, everyone followed this
arrangement without major incident. But in September 2016,
F.H.—who was twelve years old by then—asked if she could live
with Mother and her new husband full-time, and Popp agreed;
B.J., however, continued to live with Popp.
1. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and we recite the facts accordingly.”
State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116. “We present
conflicting evidence only when necessary to understand issues
raised on appeal.” Id.
20180224-CA 2 2019 UT App 173State v. Popp
¶4 About six months later, in March 2017, F.H. witnessed
Mother and her husband having sex as she walked by their
bedroom door on her way to the bathroom, and became “very,
very upset.” In an attempt to console F.H., Mother asked her
why she was so upset, and F.H. responded by telling Mother
that Popp had sexually abused her. Specifically, F.H. recounted
an incident, “when she was younger,” in which Popp told her
that he had a “magic spoon with frosting on it and made her lick
it off,” but the spoon was actually his penis. The next morning,
Mother called the Division of Child and Family Services (DCFS),
and scheduled an interview between F.H. and a DCFS
investigator (Investigator).
¶5 The interview (CJC Interview) was conducted at the
Children’s Justice Center by Investigator while a detective
(Detective) watched from an adjacent observation room.
Investigator asked F.H. what she had told Mother about Popp.
F.H. explained that when she was “seven or eight,” while
Mother “was at work,” Popp “put frosting on his thing and then
he made [her] lick it off.” F.H. explained that Popp had “asked
[F.H.] if [she] wanted a treat” and when F.H. said yes, Popp
blindfolded her and made her “kneel down” and lick “frosting
on his penis.” Then, after the frosting was gone, Popp “put the
frosting back in the fridge,” “washed his hands,” and removed
the blindfold. When Investigator asked F.H. why she believed
she was licking Popp’s penis, F.H. said that, as she was kneeling
down she began to lose her balance, and when she reached out
to catch herself she “grabbed onto [Popp’s] leg and he didn’t
have any pants on.”
¶6 F.H. then described another incident with Popp, which
had also occurred when she was seven or eight. This time, Popp
asked F.H. “to help him clean some bottles.” They proceeded
into an unlit bathroom where Popp asked F.H. to “sit on the
toilet” and “use [her] mouth to clean the bottles.” F.H. then “put
[her] mouth on the bottle and . . . lick[ed] it clean.” F.H.
20180224-CA 3 2019 UT App 173State v. Popp
explained that she “knew it wasn’t a bottle because it wasn’t
hard. . . . It was like squishy and warm.” Although F.H. was
unsure exactly how many times Popp had asked her to perform
these acts, she knew that it had happened “more than once.”
¶7 After the CJC Interview, Detective attempted to interview
Popp. Detective visited Popp’s house multiple times, left his
business card on Popp’s front door, and spoke to Popp on the
phone. During their phone conversation, Popp indicated that he
would “be willing to come into the police department for an
interview” the following day, but that he “needed to get with his
attorney first and make sure that was okay.” Popp never showed
up for the interview, however, and he later told Detective that
“his attorney had advised him not to.”
¶8 After completing its investigation, the State charged Popp
with two counts of sodomy on a child, both first-degree felonies.
Prior to the preliminary hearing, the State moved to admit the
CJC Interview pursuant to rule 15.5 of the Utah Rules of
Criminal Procedure. Popp did not object to the State’s motion,
and the CJC Interview was played at the hearing. After the
hearing, during pretrial proceedings, the State again moved to
admit the CJC Interview, this time for use at trial. In its motion,
the State addressed how each of the rule 15.5(a) factors had been
satisfied. Popp filed an objection to the State’s motion, but raised
only one argument: that admission of the CJC Interview would
violate Popp’s right to confront his accuser. However, prior to
the start of trial, Popp withdrew this objection after learning that
F.H. would be present at trial and available for cross-
examination about the CJC Interview. As a result, the court
declared Popp’s objection “moot” “as long as [F.H.] is present.”
¶9 In October 2017, the trial court ordered both parties to
disclose their trial witnesses by December 5, 2017—one month
before the scheduled trial date. Each party timely disclosed one
expert witness: the State disclosed Investigator, and Popp
20180224-CA 4 2019 UT App 173State v. Popp
disclosed an expert who would “testify about the propensity for
child witnesses to recall or falsify testimony” and “the proper
techniques that need to be used when interviewing child
witnesses and whether they were used in this case.” Then, on
December 29, 2017, Popp’s counsel notified the State that he
intended to call three additional witnesses at trial: Popp’s
mother (Grandmother); Popp’s close friend (Popp’s Friend) who
had lived with Popp and the children for a long period of time;
and Mother’s close friend (Mother’s Friend). 2 Trial counsel
indicated that these witnesses could “testify to impeach the
State’s witnesses with regards to how [F.H.] acted during the
time frame that she has alleged to have been abused and after,”
which behavior they observed “did not change . . . in any way
shape or form during the time of the alleged abuse.” Popp’s
counsel urged the court to grant a continuance to allow the State
time to investigate the proposed witnesses, but the State
opposed counsel’s request and instead asked the court to
preclude the witnesses due to counsel’s untimely disclosure.
¶10 The day before trial, the court held a telephone conference
to discuss the new witnesses and counsel’s untimely disclosure.
During that conference, the State offered a compromise,
proposing that the witnesses be allowed to testify but only as
rebuttal witnesses “if the [S]tate addresses or elicit[s]
information about” any behavioral changes on the part of F.H.
Thus, absent any allegation of behavioral changes, the witnesses
2. In his rule 23B motion, Popp contends that he told counsel
about these potential witnesses in late November, before the
court-ordered disclosure deadline. Then, according to Popp, he
again provided counsel the names and phone numbers of the
potential witnesses in a subsequent meeting on December 28,
2017. The next day, on December 29, counsel notified the State
that he intended to call these witnesses at trial; Popp contends
that counsel did so without having spoken to the witnesses.
20180224-CA 5 2019 UT App 173State v. Popp
would not be allowed to testify. After some initial hesitation,
trial counsel agreed to the compromise. At the end of the
conference, counsel also notified the State that he would not be
calling the disclosed expert to testify.
¶11 The morning of trial, before jury selection, the State
informed the court that it would be asking Detective “if he was
ever able to have an interview or meet with [Popp].” The State
explained that the purpose of the question would be “to show
that [Detective] was doing his job, he covered his bases and that
he did everything he could to, you know, investigate the case,”
and that the evidence would not be used “to suggest guilt or say
[Popp’s] trying to hide something.” Moreover, the State assured
the court that it would not mention Detective’s statements in
closing. When asked by the court if he had any comment on the
matter, Popp’s counsel responded, “No.”
¶12 During trial, the State played a video recording of the CJC
Interview and called four witnesses: Mother, Investigator, F.H.
and Detective. Mother testified as to how F.H. initially disclosed
the abuse to her, and stated that she had never “told F.H. how to
testify” regarding the abuse. Investigator testified about F.H.’s
CJC Interview. She explained that the interview had been
conducted according to national guidelines designed to allow
the child interviewee to tell the story “in their own words”
without the interviewer “putting any ideas, any suggestions into
their head.” F.H. then testified that she had watched the CJC
Interview and that it was accurate. F.H. also reiterated that Popp
had made her lick his penis on two occasions: once when he
asked her to “lick off the frosting,” and once when he asked her
to use her mouth “to clean the bottles.” F.H. concluded by
stating that no one had told her how to testify.
¶13 Finally, Detective testified that he had observed the CJC
Interview from an adjacent room. He testified that he had
undergone training and considered himself an “expert” in
20180224-CA 6 2019 UT App 173State v. Popp
interviewing children because he had been working in the field
for nine years and had watched and conducted “hundreds of
interviews.” Popp’s counsel objected to this testimony based on
relevancy, but withdrew the objection upon the State’s
explanation that Detective’s “training and experience” would
allow him to “comment on whether [Investigator] accurately and
correctly followed the guidelines.” Detective testified that the
guidelines are “highly reliable” and that, based on his
observations of the CJC Interview, Investigator had complied
with the guidelines “very well.”
¶14 Detective also testified about his experience investigating
sex crimes. He noted that, in his experience, “[i]t’s very
common” for a child victim to not remember every single
instance of sexual abuse, and “[i]n most cases” a child will delay
disclosing sexual abuse. Moreover, “it’s very rare” for there to be
forensic evidence in sex abuse cases, and in cases with a delayed
disclosure “[t]here’s [a] 90 plus percent chance that there’s not
going to be any forensic or physical evidence to collect and
preserve.” As a result, investigations for this type of crime “rely
heavily on the interview process.”
¶15 Detective then explained what measures he had taken to
investigate the case. Specifically, he testified that, after he
observed the CJC Interview, he unsuccessfully attempted to
interview Popp. Detective explained that, after visiting Popp’s
house multiple times without success, he was finally able to
reach Popp by phone and schedule an interview for the
following day. However, after Popp failed to attend the
scheduled interview, Detective again contacted Popp, and he
recounted to the jury that Popp told him that Popp’s “attorney
had advised him not to interview with [Detective].”
¶16 The State then rested its case. The defense called only one
witness, Popp, who testified for approximately ten minutes.
Popp testified about his relationship with Mother and the
20180224-CA 7 2019 UT App 173State v. Popp
children. He explained that F.H. was not his biological child—a
fact he believed F.H. was unaware of until she moved in with
Mother after the divorce—but he had always treated her as his
own. Popp also testified that his divorce from Mother turned
bitter, which he attributed to Mother’s displeasure with being
ordered to pay child support to Popp, and with Popp being
awarded the majority of the parent-time with both children.
Popp noted that, for fifteen months after the divorce, both
children lived with him harmoniously, and that during this time
Popp had a “great relationship” with F.H. Together they would
participate in fun “family stuff” such as road trips, swimming,
and attending work parties. Popp explained that he agreed to let
F.H. move in with Mother after she approached him and
explained that she was “getting ready to do her girl things and
wanted to be with [Mother].” He testified that he never sexually
abused F.H., and that her allegations were categorically untrue.
¶17 After the close of evidence, counsel and the court
discussed the post-evidence jury instructions in a conference
outside the presence of the jury. The court told counsel that it
would read each proposed instruction out loud to them, and
then ask for any objections, and that, absent an objection, the
court would assume the instruction was acceptable to both sides.
Neither side raised any substantive objection to any jury
instruction or to the verdict form.
¶18 After receiving instructions from the court and hearing
closing argument from counsel, the jury began its deliberation.
While deliberating, the jury sent the following written question
to the court: “Did [Detective] tell [Popp] why they wanted to
interview him?” The court solicited input from both sides as to
how to respond. Popp’s attorney suggested that the court
respond by telling the jury “that they have the evidence, they
have to make a decision based on what they heard.” The State
and the court agreed, and together they determined that “the
safest thing to do” would be to refer the jury to three specific
20180224-CA 8 2019 UT App 173State v. Popp
instructions indicating that one duty of the jury “is to determine
the facts of the case from the evidence received in the trial and
not from any other source.” After completing its deliberation,
the jury found Popp guilty on both counts. The court later
sentenced Popp to a prison term of twenty-five years to life on
each count, with the sentences to run concurrently.
ISSUES AND STANDARDS OF REVIEW
¶19 Popp now appeals, raising three issues on direct appeal.
First, he argues that the jury instructions were improper. Second,
he argues that the trial court erroneously admitted the CJC
Interview into evidence. Third, he argues that the trial court
erred when it allowed the State to introduce evidence of his
refusal to submit to a pre-arrest interview with police. Popp
acknowledges that he failed to preserve these issues for
appellate review, but nevertheless asks us to review them under
both the plain error and ineffective assistance of counsel
exceptions to our preservation requirement. “Plain error is a
question of law reviewed for correctness.” State v. Kozlov, 2012
UT App 114, ¶ 28, 276 P.3d 1207 (quotation simplified).
Likewise, “when a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court ruling
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of
law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587(quotation simplified).
¶20 In addition to the issues he raises on direct appeal, Popp
has filed a motion, pursuant to rule 23B of the Utah Rules of
Appellate Procedure, asking us to remand the case to the trial
court in order to supplement the record with evidence to
support his claims of ineffective assistance of counsel. “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
20180224-CA 9 2019 UT App 173State v. Popp
ineffective.” State v. Jordan, 2018 UT App 187, ¶ 14, 438 P.3d 862(quotation simplified).
ANALYSIS
I. Jury Instructions
¶21 Popp contends that the jury instructions and verdict form
were “fatally flawed” because “the jury was never given a
complete and accurate elements instruction.” Specifically, he
complains that the instructions did not “advise[] the charged
time frames for the offenses,” and that “neither the instructions
nor the verdict form denote the specific act or conduct for which
the jury . . . found guilt.” Popp acknowledges that these
arguments were not preserved, but asserts that review is proper
under both the plain error and ineffective assistance exceptions
to our preservation requirement. 3
A. Plain Error
¶22 Popp contends that the trial court plainly erred by “failing
in its duty to provide correct instructions to the jury.” He
maintains that the “necessity to completely and accurately
instruct the jury as to the elements of a crime is fundamental and
a requirement that should have been obvious to the trial court.”
The State counters that plain error review of this claim is not
available because Popp invited any error by affirmatively
3. Popp also requests that we review this claim under the
doctrine of manifest injustice. Because Popp draws no
distinctions between “manifest injustice” and “plain error,” and
because “in most circumstances the term ‘manifest injustice’ is
synonymous with the ‘plain error’ standard,” we simply address
Popp’s claims for plain error. See State v. Maestas, 2012 UT 46,
¶ 37, 299 P.3d 892 (quotation simplified).
20180224-CA 10 2019 UT App 173State v. Popp
representing to the court that he had no objection to the
instructions. We agree with the State.
¶23 “[W]hen an error is invited by an appellant, we will not
review it even for plain error.” State v. Oliver, 2018 UT App 101,
¶ 27, 427 P.3d 495; see also State v. Moa, 2012 UT 28, ¶ 27, 282 P.3d
985 (“The doctrine of invited error . . . can preclude even plain
error review.”). The “invited error doctrine arises from the
principle that a party cannot take advantage of an error
committed at trial when that party led the trial court into
committing the error.” Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d
366 (quotation simplified). “Under the doctrine of invited error,
an error is invited when counsel encourages the trial court to
make an erroneous ruling.” State v. McNeil, 2016 UT 3, ¶ 17, 365
P.3d 699. To invite an error, a party must do more than simply
fail to object; the party must manifest some sort of affirmative
representation to the trial court that the court is proceeding
appropriately. See Pratt, 2007 UT 41, ¶¶ 18–22. At least in
the context of jury instructions, see infra ¶ 44, our supreme
court has held that an instruction is not subject even to plain
error review if counsel, in response to a question from the court
about whether counsel has any objection to the instruction,
answers in the negative. See State v. Geukgeuzian, 2004 UT 16, ¶ 9,
86 P.3d 742 (“A jury instruction may not be assigned as error . . .
if counsel, either by statement or act, affirmatively represented
to the court that he or she had no objection to the jury
instruction.” (quotation simplified)); see also State v. Butt, 2012
UT 34, ¶ 42, 284 P.3d 605 (same); State v. Hamilton, 2003 UT 22,
¶ 54, 70 P.3d 111 (same). We have of course followed suit. See,
e.g., State v. Ramos, 2018 UT App 161, ¶ 23 n.9, 428 P.3d 334(citing Geukgeuzian, and holding that any error was invited when
counsel stated that he had no “issue with this instruction”
(quotation simplified)); State v. Pullman, 2013 UT App 168, ¶ 23,
306 P.3d 827 (citing Geukgeuzian, and holding that any error
was invited when counsel specifically approved the instruction
in question).
20180224-CA 11 2019 UT App 173State v. Popp
¶24 Prior to instructing the jury, the trial court sought both
sides’ input regarding the jury instructions. As to the
introductory jury instructions given at the beginning of the trial,
the court gave both attorneys a copy of the instructions and a
chance to look them over, and then asked generally if anyone
had any objection to any of them. Popp’s attorney stated plainly,
on the record, that he did not. And with regard to the post-
evidence jury instructions and the verdict form, the court went
through each instruction and the verdict form on the record
individually with counsel, pausing after each to ask if anyone
had any objection. Popp’s counsel did not object to a single
instruction or to the verdict form, and the few suggestions he
made were promptly incorporated. Thus, the instructions to
which Popp now objects are instructions that his counsel
specifically approved on the record. Because Popp’s counsel
made “an affirmative representation encouraging the court to
proceed without further consideration of an issue,” Popp invited
any error in the jury instructions and verdict form, and therefore
the plain error exception is inapplicable here and we “need not
consider [Popp’s] objection to that action on appeal.” See Moa,
2012 UT 28, ¶ 27; see also Geukgeuzian, 2004 UT 16, ¶ 10 (stating
that a defendant invites error “where his counsel confirm[s] on
the record that the defense had no objection to the instructions
given by the trial court”).
B. Ineffective Assistance
¶25 Next, Popp argues that his trial counsel was ineffective for
failing to ensure that the jury was properly instructed. “While
invited error precludes a plain error claim, it does not preclude a
claim for ineffective assistance of counsel.” State v. McNeil, 2013
UT App 134, ¶ 25, 302 P.3d 844, aff’d, 2016 UT 3, 365 P.3d 699.
Accordingly, we evaluate Popp’s ineffective assistance claim
under the two-part test articulated in Strickland v. Washington,
466 U.S. 668 (1984). Under that test, Popp must show “(1) that
trial counsel’s performance was objectively deficient and (2) that
20180224-CA 12 2019 UT App 173State v. Popp
such deficient performance was prejudicial.” Honie v. State, 2014
UT 19, ¶ 31, 342 P.3d 182. “Because failure to establish either
prong of the test is fatal to an ineffective assistance of counsel
claim, we are free to address [Popp’s] claims under either
prong.” Id. As noted above, Popp identifies two potential
infirmities with the jury instructions and verdict form: (1) that
the instructions did not “advise[] the charged time frames for the
offenses,” and (2) that “neither the instructions nor the verdict
form denote the specific act or conduct for which the jury . . .
found guilt.” Popp’s first claim fails under the first part of
Strickland’s test, and his second claim fails under the second.
¶26 To satisfy the first part of the Strickland test, Popp “must
show that counsel’s representation fell below an objective
standard of reasonableness” when measured against “prevailing
professional norms.” See Strickland, 466 U.S. at 687–88. Because
of the “variety of circumstances” and “the range of legitimate
decisions regarding how best to represent a criminal defendant,”
our review of counsel’s actions is “highly deferential.” Id. at 688–
89. We judge the reasonableness of counsel’s actions “on the
facts of the particular case, viewed as of the time of counsel’s
conduct,” id. at 690, and we “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance,” id. at 689. One way to overcome this
strong presumption is for a defendant to persuade the court that
there was “no conceivable tactical basis” for counsel’s actions.
State v. Clark, 2004 UT 25, ¶ 7, 89 P.3d 162 (quotation simplified).
“Only when no reasonable attorney would pursue the chosen
strategy will we determine that counsel has been constitutionally
ineffective.” State v. Roberts, 2019 UT App 9, ¶ 29, 438 P.3d 885(quotation simplified).
¶27 With regard to his argument that the jury instructions did
not sufficiently identify the time frames within which the crimes
allegedly occurred, Popp cannot satisfy the first part of the
Strickland test, because the jury instructions correctly stated the
20180224-CA 13 2019 UT App 173State v. Popp
law in this regard, and “[f]ailure to object to jury instructions
that correctly state the law is not deficient performance.” State v.
Lee, 2014 UT App 4, ¶ 22, 318 P.3d 1164. Under Utah law, a
person commits sodomy upon a child if he intentionally,
knowingly, or recklessly “engages in any sexual act upon or
with a child who is under the age of 14, involving the genitals or
anus of the actor or the child and the mouth or anus of either
person, regardless of the sex of either participant.” Utah Code
Ann. §§ 76-2-102, 76-5-403.1(1) (LexisNexis 2017). “[A]ny
touching, even if accomplished through clothing, is sufficient.”
Id. § 76-5-407(3) (Supp. 2019). The instructions Popp assails
apprised the jury that the State bore the burden of proving,
“beyond a reasonable doubt,” that (1) Popp “intentionally,
knowingly, or recklessly committed a sexual act with F.H.
involving any touching, however slight, of the genitals of one
person and the mouth or anus of another, even if accomplished
through the clothing;” and (2) “F.H. was under the age of 14
years old at the time of the conduct.” In addition, the jury was
instructed that, for each of the two counts, Popp was charged
with engaging in the acts “on or about January 2012 through
December 2013.”
¶28 Popp’s argument that these instructions were flawed
because they did not specify “when the conduct occurred” is
unpersuasive. The relevant instructions tracked the language of
the statute and therefore “accurately convey[ed] the law.” See
State v. Maama, 2015 UT App 235, ¶ 29, 359 P.3d 1272.
Specifically, the instructions included an age element, making
clear that the State needed to prove that “F.H. was under the age
of 14 years old at the time of the conduct.” Moreover, even
though time is not an element of the offense of sodomy on a
child and therefore need not be included in the instructions, 4 see
4. Popp acknowledges that “time is not always a statutory
element of an offense,” but asserts that time must be an element
(continued…)
20180224-CA 14 2019 UT App 173State v. Popp
Utah Code Ann. § 76-5-403.1(1), these instructions did include a
time element, specifying the period of time (“on or about
January 2012 through December 2013”) in which F.H. claimed
that the conduct had occurred. Popp has not pointed to any
requirement that the State prove that this type of crime occurred
on a specific date at a specific time. Accordingly, these
instructions were not infirm with regard to the time frame issue,
and because any objection counsel might have raised in this
regard would have been overruled, counsel did not perform
deficiently by electing not to raise one. See State v. Kelley, 2000 UT
41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objections does not
constitute ineffective assistance of counsel.”).
¶29 Popp’s second argument—that “neither the instructions
nor the verdict form denote the specific act or conduct for which
the jury . . . found guilt”—fails because Popp cannot show
prejudice, even if one assumes for the purposes of the argument
that the instructions and verdict form were insufficient in this
regard. To establish prejudice, Popp must “show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
See Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. The failure of the instructions and the verdict form to specify
which count went with the “frosting” episode and which count
went with the “bottle” episode did not matter in this case, where
(…continued)
of the offenses with which he was charged, because the age of
the victim may alter the level of offense, see Utah Code Ann.
§ 76-1-501(2)(a) (LexisNexis 2018) (stating that an “element of the
offense” includes “the conduct, attendant circumstances, or
results of conduct proscribed, prohibited, or forbidden in the
definition of the offense”); see also State v. Fulton, 742 P.2d 1208,
1213 (Utah 1987).
20180224-CA 15 2019 UT App 173State v. Popp
F.H. described only two incidents and Popp was charged with
only two counts and convicted of both.
¶30 Because Popp can satisfy neither part of the Strickland test,
his claim that his attorney performed deficiently by failing to
object to jury instructions is without merit.
II. CJC Interview
¶31 Next, Popp contends that the CJC Interview should not
have been shown to the jury. Popp acknowledges that the
only objection he ever lodged to the admission of the CJC
Interview—that its admission would infringe on his right to
confront witnesses—was withdrawn after it became clear that
F.H. would indeed be available for cross-examination, and that
his appellate arguments on this point are therefore unpreserved.
Nevertheless, Popp asks us to review this issue for plain error
and ineffective assistance of counsel.
A. Plain Error
¶32 Popp contends that the trial court plainly erred by failing
to evaluate the reliability of the CJC Interview as required by
rule 15.5(a)(8) of the Utah Rules of Criminal Procedure. As with
the previous claim, the State counters that plain error review of
this claim is not available because Popp invited any error by
withdrawing his objection at the pretrial hearing to admission of
the CJC Interview.
¶33 But we do not think that Popp’s conduct with regard
to this claim constitutes invited error. As noted above, to
invite error, a party must do more than simply fail to object;
rather, a party must make some affirmative representation to the
court that it is proceeding correctly. Pratt v. Nelson, 2007 UT 41,
¶¶ 18–22, 164 P.3d 366; see also State v. Winfield, 2006 UT 4, ¶ 14,
128 P.3d 1171 (stating that, to invite error, counsel must
“affirmatively represent[] to the trial court that he or she had no
20180224-CA 16 2019 UT App 173State v. Popp
objection to the proceedings” (quotation simplified)). “Examples
of affirmative representations include where counsel stipulates
to the court’s instruction, states directly that there is no objection
to a specific ruling of the court, or provides the court with
erroneous authority upon which the court relies.” State v. Cooper,
2011 UT App 234, ¶ 10, 261 P.3d 653 (quotation simplified). In
this vein, there is “a distinction between affirmative actions to
initiate the error and merely acquiescing to the error.” See State v.
McNeil, 2016 UT 3, ¶ 18, 365 P.3d 699 (quotation simplified); see
also State v. Marquina, 2018 UT App 219, ¶ 23, 437 P.3d 628(noting that our supreme court “has previously rejected attempts
to broaden the scope of the invited error doctrine beyond this
affirmative-representation model”), cert. granted, 440 P.3d 691(Utah 2019). Where no affirmative representation is made, and
counsel simply fails to object, any error “is not invited but
merely unpreserved, and thus remains subject to plain error
review.” McNeil, 2016 UT 3, ¶ 21.
¶34 Here, Popp made a single objection to admission of the
CJC Interview based on the confrontation clause, then withdrew
that objection after learning that F.H. would be present to testify
at trial. Further, Popp never manifested affirmative consent to
the admissibility of the CJC Interview under rule 15.5(a) of the
Utah Rules of Criminal Procedure, or made any affirmative
representation that it was reliable evidence. Popp simply
withdrew his confrontation clause objection. In our view, where
the admissibility of the CJC Interview under rule 15.5(a) was not
the subject of Popp’s withdrawn objection, this situation is
materially indistinguishable from a situation in which a litigant
does not object at all, and it is well settled that a simple failure to
object does not constitute invited error. See id. (stating that a
simple failure to object means that the argument is unpreserved,
not that an error has been invited). Accordingly, we reject the
State’s argument that Popp invited any error in the admission of
the CJC Interview under rule 15.5(a), and proceed to evaluate
Popp’s unpreserved claim under a plain error standard.
20180224-CA 17 2019 UT App 173State v. Popp
¶35 To prevail on a claim that the trial court plainly erred in
admitting the CJC Interview, Popp “must establish that (i) an
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful.” See State v. Johnson, 2017 UT
76, ¶ 20, 416 P.3d 443 (quotation simplified). Popp asserts that
the trial court erred in allowing the jury to view the CJC
Interview without first assessing its reliability under rule 15.5.
He asserts that this error was obvious because the “requirement
for the trial court to evaluate reliability is plain in Rule 15.5 and
relevant case law.” And he maintains that this failure was
harmful here because the CJC Interview was both unreliable and
an important part of the State’s case.
¶36 Because Popp must satisfy all three requirements to
succeed on his claim, see id., if we conclude that the alleged error
was not harmful we need not analyze whether it was obvious,
see State v. Saenz, 2016 UT App 69, ¶ 12, 370 P.3d 1278 (“If there
is no prejudice, we have no reason to reach the other elements of
the plain error analysis.” (quotation simplified)). “An error is
harmful if, absent the error, there is a reasonable likelihood of a
more favorable outcome for the appellant, or phrased
differently, if our confidence in the verdict is undermined.” State
v. Bond, 2015 UT 88, ¶ 49, 361 P.3d 104 (quotation simplified).
Based on the record before us, we conclude that, even if the trial
court erred by failing to strictly comply with rule 15.5, Popp has
not demonstrated how this error was harmful.
¶37 First, there is not a reasonable likelihood that the outcome
of the trial would have been different had the CJC Interview
been excluded. F.H. was available to—and did—testify at trial
and there is nothing in the record to suggest that, if the CJC
Interview had been excluded, F.H. would have been unable to
testify live as to the events in question. Indeed, during her trial
testimony, F.H. affirmed that the events described in the video
recording did in fact occur. Furthermore, after viewing the
video, F.H. reiterated that Popp had asked her to lick his penis
20180224-CA 18 2019 UT App 173State v. Popp
on two occasions—once under the guise of licking frosting off of
a spoon and once under the guise of cleaning bottles.
¶38 Second, Popp has not carried his burden to prove that—
even if a timely objection had been lodged and the trial court
had conducted a rule 15.5 reliability review—the court would
have excluded the video as unreliable. Popp contends that
several factors undermine the reliability of the CJC Interview.
Specifically, he asserts that Investigator failed to establish a
baseline of truth versus lie; that she did not elicit a promise from
F.H. to tell the truth; that she asked F.H. leading questions; and
that she asked F.H. if anyone told F.H. what to say in the
interview. We do not think these factors would have resulted in
exclusion of the video, especially in light of the unrebutted
testimony from both Investigator and Detective that the CJC
Interview was conducted appropriately and according to
national guidelines. In determining reliability in the rule 15.5
context, the court must “assess the interview in all of its
circumstances.” State v. Roberts, 2019 UT App 9, ¶ 21, 438 P.3d
885. Indeed, we have recognized that there is not “one ‘right’
way to conduct an interview,” and that a court’s decision to
assign more weight to a victim’s responses than to an alleged
flaw in the interviewing technique “does not, without more,
render its reliability determination erroneous.” Id. Popp has not
persuaded us that, on this record, the perceived flaws would
have rendered the CJC Interview unreliable.
¶39 In sum, Popp has not demonstrated that he was harmed
by any error the trial court might have made by failing to
conduct a rule 15.5 reliability determination prior to admitting
the CJC Interview. Accordingly, we cannot conclude that the
trial court plainly erred.
B. Ineffective Assistance
¶40 Next, Popp contends that trial counsel’s failure to
challenge the admissibility of the CJC Interview on reliability
20180224-CA 19 2019 UT App 173State v. Popp
grounds constituted ineffective assistance of counsel. As noted
above, one of the two elements that Popp must establish, in
order to demonstrate that his counsel performed ineffectively, is
prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984)
(stating that, to establish a claim of ineffective assistance, a
defendant “must show that counsel’s performance was
deficient” and that “the deficient performance prejudiced the
defense”). However, our supreme court has “held that the
prejudice test is the same whether under the claim of ineffective
assistance or plain error.” McNeil, 2016 UT 3, ¶ 29; see also State v.
Bair, 2012 UT App 106, ¶ 35, 275 P.3d 1050 (“The ‘harm’ factor in
the plain error analysis is equivalent to the prejudice test applied
in assessing claims of ineffective assistance of counsel.”
(quotation simplified)). Consequently, “failure to meet the plain
error requirement of prejudice means that [the] defendant
likewise fails to meet the required showing under the ineffective
assistance of counsel standard.” State v. Cheek, 2015 UT App 243,
¶ 32, 361 P.3d 679 (quotation simplified). Therefore, Popp’s
ineffective assistance claim founders on the same shoals as his
plain error claim does. 5
5. On this point, we do not think that Popp can demonstrate
deficient performance either, because he cannot “rebut the
strong presumption that under the circumstances the challenged
action might be considered sound trial strategy.” See State v.
Wright, 2013 UT App 142, ¶ 13, 304 P.3d 887 (quotation
simplified). We perceive possible tactical reasons why counsel
may have wanted the CJC Interview to be admitted. First,
counsel might have believed that F.H.’s live testimony would
have been even more powerful than recorded testimony. Second,
the CJC Interview contained some discussion of items helpful to
the defense, including Popp’s theory that Mother had coached
F.H. into making the abuse allegations as a way to gain custody
and terminate child support payments to Popp.
20180224-CA 20 2019 UT App 173State v. Popp
III. Pre-Arrest Right to Remain Silent
¶41 Popp next argues that his constitutional right to remain
silent was violated when Detective testified at trial about Popp’s
refusal to submit to a pre-arrest interview. Popp contends that
Detective’s testimony caused the jury to infer that Popp had
“something to hide” from police and that Popp’s silence was
“evidence of guilt.” Like Popp’s first two claims on appeal, this
one is also unpreserved, and Popp again asks us to review this
claim for plain error and ineffective assistance of counsel.
A. Plain Error
¶42 Popp contends that the trial court plainly erred when it
allowed Detective to testify that Popp had declined the
opportunity to speak with police prior to his arrest. Popp further
contends that the court did not properly instruct the jury, when
it posed a question during deliberation, that Popp’s pre-arrest
silence cannot be used as evidence of guilt. Any error in the
court’s response to the jury’s question was invited by Popp,
and—even assuming that Popp did not invite any error in the
admission of the evidence—the trial court did not plainly err in
allowing Detective to testify about his interactions with Popp.
¶43 As explained above, a party invites error when it
“independently ma[kes] a clear affirmative representation” to
the court that the court is proceeding appropriately. State v.
McNeil, 2016 UT 3, ¶ 18, 365 P.3d 699. With regard to the court’s
response to the jury’s question, Popp invited any error. During
its deliberation, the jury sent a question to the court about
Detective’s testimony, asking, “Did the detective tell [Popp] why
they wanted to interview him?” In chambers, counsel for both
sides discussed how to respond to the question. Popp’s counsel
suggested that the court respond by telling the jurors “that they
have the evidence, they have to make a decision based on what
they heard.” The State and the court agreed with that
suggestion, and together the parties and the court determined
20180224-CA 21 2019 UT App 173State v. Popp
that “the safest thing to do” would be to refer the jury to three
specific jury instructions, which state that one duty of the jury
“is to determine the facts of the case from the evidence received
in the trial and not from any other source.” Here, counsel did
more than simply respond to a question from the court about
whether he had any objection to a plan formulated by someone
else; in this instance, the court’s response to the jury’s question
was framed by Popp’s counsel’s own suggestion. Popp therefore
invited any error in that response. See id. (“[W]e have
traditionally found invited error when the context reveals that
counsel independently made a clear affirmative representation
of the erroneous principle.”).
¶44 We are unable to conclude, however, that Popp invited
any error in the trial court’s admission of Detective’s testimony.
Although Popp’s counsel was directly queried about whether he
had any “comment” on the State’s request to have Detective
testify about his interactions with Popp, and responded in the
negative, we are uncertain whether, under operative supreme
court case law, such conduct amounts to invited error in this
context. As noted above, supra ¶ 23, our supreme court has
clearly held that a defendant who is specifically queried about a
jury instruction and affirmatively responds that he has no
objection is deemed to have invited any error in that jury
instruction. See, e.g., Geukgeuzian, 2004 UT 16, ¶¶ 9–11; State v.
Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111. Our supreme court has
extended this concept to the jury selection context as well. State
v. Winfield, 2006 UT 4, ¶¶ 16, 18, 128 P.3d 1171 (holding that a
defendant invited any error in the jury selection process by
affirmatively stating, in response to a question from the court,
that he had no objection to the composition of the jury). But
more recently, in State v. McNeil, our supreme court—without
citation to Geukgeuzian or Winfield—appeared to directly
repudiate the logic of those cases, at least in the context of
admission of evidence. 2016 UT 3, ¶ 21 (rejecting the State’s
argument “that if counsel does not offer a proper objection [to
20180224-CA 22 2019 UT App 173State v. Popp
the admission of evidence] when asked to do so by the trial
court, the error is invited,” and stating that it found that
argument “unpersuasive”). 6 In light of McNeil, we find it most
efficient here to simply assume, for purposes of our analysis, that
Popp did not invite any error in the trial court’s admission of
Detective’s testimony, and to evaluate the trial court’s decision
for plain error.
¶45 And in this case, the trial court did not plainly err in
allowing Detective to testify about his interactions with Popp,
including testifying that Popp declined his invitation to sit for an
interview. As noted above, in order to prevail on a claim that the
trial court plainly erred in allowing Detective’s testimony, Popp
“must establish that (i) an error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful.”
State v. Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443 (quotation
simplified). We do not discern any error in admission of
Detective’s testimony, let alone an obvious one.
¶46 It is certainly true that “a person is protected from
compelled self-incrimination at all times, not just upon arrest or
during a custodial interrogation,” State v. Gallup, 2011 UT App
6. The court did not explain why it found that argument
“unpersuasive” in McNeil but entirely persuasive in Geukgeuzian,
Hamilton, and Winfield, and did not attempt to distinguish those
cases in McNeil. As we read all of the cases together, under
current law a litigant who fails to object after being directly
asked about a jury instruction or about the composition of the
jury will be deemed to have invited any error, while a litigant
who fails to object after being directly asked about the
admissibility of evidence will not be. However, such distinctions
are not outcome-determinative in this case, because Popp’s claim
regarding the admission of Detective’s testimony fails even
under plain error review.
20180224-CA 23 2019 UT App 173State v. Popp
422, ¶ 15, 267 P.3d 289 (quotation simplified), and that evidence
of a defendant’s pre-arrest silence may not be used at trial “to
infer [that the] defendant exhibited a consciousness of guilt,”
State v. Palmer, 860 P.2d 339, 349 (Utah Ct. App. 1993). But the
“mere mention of a defendant’s exercise of his rights does not
automatically establish a violation.” State v. Maas, 1999 UT App
325, ¶ 20, 991 P.2d 1108 (quotation simplified). “Rather, it is the
prosecutor’s exploitation of a defendant’s exercise of his right to
silence which is prohibited.” Id. (quotation simplified). To
discern the difference between permissible uses and
constitutional violations, “a court must look at the particular use
to which the disclosure is put, and the context of the disclosure.”
Id. ¶ 21. A violation occurs when the State frames the issue in a
way that “raises the inference that silence equals guilt.” Id. ¶ 20.
¶47 Here, the State did not attempt to use Detective’s
testimony to “cast the forbidden inference that [Popp’s] silence
equaled guilt.” See id. ¶ 25. Instead, the State introduced the
evidence to rebut Popp’s theory that Detective too readily
accepted F.H.’s version of events, and that he did not adequately
investigate the case. Testimony elicited from Detective was used
to demonstrate that Detective had at least attempted to interview
all relevant witnesses—including Popp—and had done
“everything he could to . . . investigate the case.” The State
carefully limited its use of this evidence to this purpose, and (as
it promised) did not refer in closing argument to Detective’s
testimony about Popp’s ultimate refusal to interview. Under
these circumstances, we cannot say that the State introduced
Detective’s testimony in order to raise a forbidden inference, and
therefore the trial court did not commit error—let alone a plain
one—by allowing Detective’s testimony.
B. Ineffective Assistance
¶48 Next, Popp contends that his trial counsel was ineffective
for failing to object to Detective’s testimony or to request a
20180224-CA 24 2019 UT App 173State v. Popp
curative instruction. As indicated above, to succeed on an
ineffective assistance claim, a defendant must demonstrate that
his counsel performed deficiently and that counsel’s deficient
performance prejudiced him. Honie v. State, 2014 UT 19, ¶ 31, 342
P.3d 182. Failure to satisfy either part of the ineffective assistance
test is fatal to a defendant’s claim. Archuleta v. Galetka, 2011 UT
73, ¶ 41, 267 P.3d 232. Because Popp has not shown that counsel
performed deficiently by not objecting to Detective’s testimony
or asking for a curative instruction, this claim fails.
¶49 Under the circumstances presented, we are not convinced
that a timely objection to the admission of Detective’s testimony
would have been granted. See State v. Kelley, 2000 UT 41, ¶ 26, 1
P.3d 546 (“Failure to raise futile objections does not constitute
ineffective assistance of counsel.”). As noted immediately above,
we discern no error in the trial court’s admission of Detective’s
testimony about Popp’s refusal to interview, and we are
therefore unpersuaded that the trial court would have granted
an objection even if counsel had raised one.
¶50 Likewise, Popp has not carried his burden of
demonstrating that trial counsel was ineffective for failing to
request a curative instruction in response to the jury’s question.
Utah courts have long recognized that counsel’s decision not to
request an available curative instruction may be “construed as
sound trial strategy.” State v. Harter, 2007 UT App 5, ¶ 16, 155
P.3d 116. Indeed, a curative instruction may actually serve to
draw the jury’s attention toward the subject matter of the
instruction and further emphasize the issue the instruction is
attempting to cure. State v. Garrido, 2013 UT App 245, ¶ 26, 314
P.3d 1014 (“Choosing to forgo a limiting instruction can be a
reasonable decision to avoid drawing attention to unfavorable
testimony.”). Therefore, “any advantage [Popp] may have
gained by requesting a curative . . . instruction may have been
offset by the attention drawn to” Popp’s silence. See Harter, 2007
UT App 5, ¶ 16.
20180224-CA 25 2019 UT App 173State v. Popp
¶51 Accordingly, Popp has not demonstrated that his counsel
acted deficiently by failing to object to Detective’s testimony or
to request a curative instruction. Consequently, we reject Popp’s
ineffective assistance of counsel claim with respect to this issue.
IV. Motion for Rule 23B Remand
¶52 In addition to the claims he raises based on the appellate
record, Popp filed a motion under rule 23B of the Utah Rules of
Appellate Procedure, seeking an order remanding the case to the
trial court for further proceedings regarding three of his
ineffective assistance claims. Our supreme court has noted that,
where “the record is silent regarding counsel’s conduct,” a
defendant will not be able to meet his burden of “pointing to
specific instances in the record demonstrating both counsel’s
deficient performance and the prejudice it caused.” State v.
Griffin, 2015 UT 18, ¶ 16, 441 P.3d 1166. Rule 23B was
“specifically designed” to remedy this problem. Id. ¶ 17(quotation simplified). Under rule 23B, a defendant “may move
the court to remand the case to the trial court for entry of
findings of fact, necessary for the appellate court’s determination
of a claim of ineffective assistance of counsel.” Utah R. App. P.
23B(a).
¶53 A movant must make a four-part showing in order
to obtain a remand order under rule 23B. First, the rule 23B
motion “must be supported by affidavits setting forth facts
that are not contained in the existing record.” State v. Norton,
2015 UT App 263, ¶ 6, 361 P.3d 719 (quotation simplified).
Second, the affidavits must contain “allegations of fact that
are not speculative.” Id. (quotation simplified). Third, the
allegations contained in the affidavits “must show deficient
performance by counsel.” Id. (quotation simplified). And finally,
the affidavits “must also allege facts that show the claimed
prejudice suffered by the appellant as a result of the claimed
deficient performance.” Id. (quotation simplified). Importantly,
20180224-CA 26 2019 UT App 173State v. Popp
the third and fourth elements require the defendant to “present
the court with the evidence he intends to present on remand and
explain how that evidence supports both prongs of the
ineffective assistance of counsel test.” State v. Gallegos, 2018 UT
App 192, ¶ 23, 437 P.3d 388 (quotation simplified), cert. granted,
437 P.3d 1248 (Utah 2019). “[I]f the defendant could not meet the
test for ineffective assistance of counsel, even if his new factual
allegations were true, there is no reason to remand the case, and
we should deny the motion.” Griffin, 2015 UT 18, ¶ 20.
¶54 Popp asserts that remand under rule 23B is necessary to
supplement the record to support three of his claims that his trial
counsel rendered ineffective assistance. First, Popp contends that
trial counsel failed to investigate and call three potential defense
witnesses. Second, Popp asserts that trial counsel failed to
consult with and call an expert to challenge the reliability of the
CJC Interview. Third, Popp faults trial counsel for failing to
object to and rebut testimony from Detective. We examine each
of these claims in turn.
A. Failure to Investigate and Call Defense Witnesses
¶55 First, Popp seeks remand related to a claim—that he
concedes he cannot fully support on the current record—that his
attorney was ineffective for failing to investigate and call three
potential defense witnesses. He contends that he told counsel
about these witnesses prior to the witness disclosure deadline,
but that counsel failed to act on the information received. Popp
contends that counsel’s conduct was “objectively unreasonable
and left Popp without any evidence supporting his version of
events.” We conclude that Popp has satisfied the requirements of
rule 23B on this claim.
¶56 To support his motion, Popp submitted his own affidavit,
as well as affidavits from Grandmother, Popp’s Friend, and
Mother’s Friend. In his own affidavit, Popp avers that he gave
counsel the names and contact information for a number of
20180224-CA 27 2019 UT App 173State v. Popp
potential trial witnesses, including each of the other three rule
23B affiants, “in late November” 2017, a few weeks before the
witness disclosure deadline. All three of the other affiants swear
that Popp’s attorney did not contact them. Popp avers that he
and Grandmother met with counsel on December 28, 2017, and
again gave him the names of potential witnesses, an account
corroborated by Grandmother, yet counsel still did not contact
any witnesses. As noted above, due to counsel’s late disclosure
of his intent to call Grandmother, Popp’s Friend, and Mother’s
Friend, counsel acceded to a “compromise” in which he agreed
not to call these witnesses unless the State opened the door by
discussing changes in F.H.’s behavior. But Popp now argues,
and the witnesses’ affidavits support, that these witnesses could
have testified to a number of other issues, including: (1) that
Popp had a reputation for honesty while Mother did not; (2) that
Popp was a good father; (3) that Mother allowed F.H. to watch
sexually explicit television shows; (4) that F.H. did not know
Popp was not her biological father until she moved in with
Mother after the divorce; (5) that Mother was highly motivated
to gain full custody of the children and terminate child support
payments to Popp; and (6) that other adults had often been
present in the house with F.H. and Popp during the times of day
in which the abuse was alleged to have occurred. All of this
evidence would have been supportive of Popp’s defenses,
including his main theory at trial: that Mother had coached F.H.
to testify that Popp had abused her, in order for Mother to gain
an advantage in the contentious custody proceedings.
¶57 Under these circumstances, Popp has met all four
prerequisites for the granting of a rule 23B motion. He has
submitted affidavits setting forth non-speculative facts not
currently contained in the existing record, and those facts, if
proven true, could potentially support both parts of an
ineffective assistance of counsel claim. We already know from
the record that trial counsel failed to meet the court’s witness
disclosure deadline, and was thereby hamstrung in his ability to
20180224-CA 28 2019 UT App 173State v. Popp
call later-disclosed witnesses. From the affidavits Popp has
submitted in connection with his rule 23B motion, we have
learned who these witnesses are, what they would have testified
about, that Popp disclosed this information to trial counsel in
advance of trial and the witness disclosure deadline, and that
their testimony might have been useful to Popp. Based on the
information before us, we conclude that these facts, if true,
“could support a determination that counsel was ineffective.”
See Utah R. App. P. 23B(a).
¶58 The State argues, however, that the testimony Popp
claims should have been presented would not have been enough
to make a difference, and that Popp therefore cannot
demonstrate the potential for prejudice. Although we
acknowledge that this is a close question, we resolve it here in
favor of Popp. As noted above, prejudice in this context refers to
a “reasonable probability” that the result of the trial would have
been different. See Strickland v. Washington, 466 U.S. 668, 694
(1984). This standard is less exacting than “the more demanding
‘more likely than not’ standard.” Tillman v. State, 2005 UT 56,
¶ 29 n.7, 128 P.3d 1123 (quoting Strickler v. Greene, 527 U.S. 263,
297–300 (1999) (Souter, J., concurring and dissenting)), superseded
in part by statute on other grounds as stated in Gordon v. State, 2016
UT App 190, 382 P.3d 1063. The reasonable probability standard
is “more akin to a significant possibility of a different result.”
Tillman, 2005 UT 56, ¶ 29 n.7 (quotation simplified). There is a
“reasonable probability of a different result” when a court’s
“confidence in the outcome of the trial” is undermined. Id. ¶ 29(quotation simplified); see also Strickland, 466 U.S. at 694 (“A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.”).
¶59 In this case, neither side presented any physical evidence;
indeed, the entire case hinged on the credibility of the witnesses,
especially F.H. While Popp’s counsel did cross-examine all of the
State’s witnesses, including F.H., Popp called only himself as a
20180224-CA 29 2019 UT App 173State v. Popp
witness, and he testified for about ten minutes. While Popp
denied, under oath, any abuse of F.H., no other defense witness
was called to corroborate any portion of Popp’s account, or to
bolster his theory that Mother may have coached F.H. to make
the accusations. All three of the rule 23B affiants (Grandmother,
Popp’s Friend, and Mother’s Friend) could have lent support in
that regard, especially Mother’s Friend, who states in her
affidavit, among other things, that she is of the view that Mother
“is not trustworthy” and that F.H.’s “allegations were
orchestrated by [Mother] as a way to gain custody” and to avoid
paying Popp child support. At a minimum, calling these
witnesses would have made it less likely that jurors would draw
the conclusion—as they may have after witnessing a ten-minute
defense in a first-degree felony case—that Popp did not have
much of a defense to offer. In the end, if the facts are borne out to
be as the rule 23B affidavits make them appear, our confidence
in the outcome of the trial could be sufficiently undermined such
that the second element of the Strickland test may be met.
¶60 Therefore, we grant Popp’s rule 23B motion on this claim.
B. Failure to Challenge Reliability of CJC Interview
¶61 Popp next claims that his trial counsel was ineffective for
failing to consult and call an expert to challenge the reliability of
the CJC Interview. We have already addressed and rejected this
claim, as it relates to evidence currently in the record. See supra
Part II.B. Popp asserts that he might be able to make out a valid
claim for ineffective assistance on this point, if he could obtain a
remand for further proceedings. To support this claim, Popp
submits multiple affidavits, including one from a potential
expert witness. On this point, however, the affidavits Popp
submits do not support a rule 23B remand, because even if the
new factual allegations are true, Popp has not shown prejudice.
¶62 In our view, this claim is doomed by the details of the
potential expert’s affidavit. Specifically, the expert avers that
20180224-CA 30 2019 UT App 173State v. Popp
Popp’s trial counsel contacted him, prior to trial, and asked him
to review the audio recording of the CJC Interview and to
“identify any potential problems contained therein.” After
listening to the recording, the expert concluded that there was
nothing “exceptionally unusual or untoward” in the interview,
and that he “did not identify anything significantly problematic
in the interview in reference to techniques that would be
inconsistent with sound interview protocol.” The expert avers
that he shared those views with trial counsel in a telephone
conversation prior to trial, and that counsel responded by
stating, “[T]hat’s kind of what I thought.”
¶63 Under these circumstances, the affidavits submitted by
Popp in support of his request for rule 23B remand on this claim
are insufficient. Even if counsel had called the potential expert to
testify about the reliability of the CJC Interview, the materials
Popp has submitted give us no reason to believe that the court
would have been any more likely to exclude the CJC Interview,
or that there would have been a reasonable probability that the
result of Popp’s trial would have been different. Accordingly, we
see no purpose for a rule 23B remand on this claim.
C. Failure to Object to Detective’s Testimony
¶64 Finally, Popp claims that his trial counsel was ineffective
for failing to object to and rebut Detective’s testimony—which
Popp characterizes as “unnoticed expert testimony”—about the
propriety of the CJC Interview. He asserts that, had counsel
objected, Popp may have been able to win exclusion of
Detective’s testimony regarding the CJC Interview. Moreover, he
asserts that, even if he could not have obtained an order
excluding Detective’s testimony, counsel should have at least
called an expert to rebut it.
¶65 We conclude that, on the facts presented, Popp has not
demonstrated entitlement to a rule 23B remand on this claim.
After consulting with the expert witness discussed in the
20180224-CA 31 2019 UT App 173State v. Popp
previous section, counsel may have reasonably concluded both
(a) that objecting to Detective’s testimony would be unnecessary
and futile, and (b) that calling a rebuttal expert would simply
result in bolstering Detective’s testimony that the CJC Interview
was conducted appropriately. Indeed, as discussed above,
Popp’s own potential expert listened to a recording of the CJC
Interview and concluded that there did not exist grounds to
challenge its admission on the basis that it had been conducted
inappropriately. Consequently, even if the information in Popp’s
rule 23B affidavits is true, Popp will not be able to demonstrate
that his attorney performed deficiently in this regard, and
therefore Popp’s request is insufficient to justify a remand. See
Griffin, 2015 UT 18, ¶ 19.
CONCLUSION
¶66 We reject all of Popp’s claims that the trial court erred, as
well as all of Popp’s claims for ineffective assistance that are
based on the appellate record. In addition, we reject two of
Popp’s requests for remand under rule 23B, and deny his rule
23B motion with respect to those claims. However, we grant
Popp’s rule 23B motion regarding his claim that trial counsel
was ineffective for failing to investigate or call three potential
defense witnesses. Therefore, we remand the case to the trial
court to supplement the record as necessary to resolve this claim,
including exploration of the following issues:
(a) Whether Popp made counsel aware of potential
trial witnesses prior to the witness disclosure
deadline;
(b) If so, whether counsel contacted those
witnesses, or otherwise investigated their
potential testimony, and, if not, whether
counsel had valid strategic reasons for
declining to do so;
20180224-CA 32 2019 UT App 173State v. Popp
(c) What testimony those witnesses would have
given, whether that testimony might have been
helpful to Popp’s defense, and whether that
testimony might have been significantly
undermined through cross-examination.
20180224-CA 33 2019 UT App 173