State v. Wright

2013 UT App 142

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

JUSTIN GEORGE WRIGHT,

Defendant and Appellant.

Opinion

No. 20090643‐CA

Filed June 20, 2013

Third District, Salt Lake Department

The Honorable Paul G. Maughan

No. 081908349

Lori J. Seppi, Attorney for Appellant

John E. Swallow and Jeanne B. Inouye, Attorneys

for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which

JUDGES GREGORY K. ORME and WILLIAM A. THORNE JR. concurred.

ROTH, Judge:

¶1 Justin George Wright challenges his conviction for

aggravated sexual abuse of a child on three grounds. First, Wright

contends that his trial counsel provided ineffective assistance in

investigating and presenting his defense. Wright next argues that

the district court erred when it permitted the jury to hear

inadmissible expert testimony. Finally, he asserts prosecutorial

misconduct during closing statements. We affirm.

BACKGROUND

¶2 Wright was charged by information with two counts of

aggravated sexual abuse of a child after his daughter (Daughter)

State v. Wright

reported that Wright “put his hands down her pants and touched

her buttocks and vaginal area” while they were lying on a couch.

She also reported that Wright sometimes “put his hand down her

shirt and touched her breast area.” According to Daughter, this

conduct began when she was six or seven years old and continued

until August or September 2007, when she was nine years old, at

which time Wright moved to Las Vegas to attend school. Daughter

did not report the abuse until July 2008, approximately ten months

after it had ended. She first told her eleven‐year‐old cousin but

made her cousin promise not to tell because she did not want them

to get in trouble if they were not believed and because she was

afraid that Wright might go to jail and then kidnap her once he was

released. In August 2008, Daughter disclosed the abuse to her

mother (Mother) and Mother’s fiancé.

¶3 Wright was tried by jury on May 5–6, 2009. At the trial,

Daughter testified that when she visited Wright at his apartment,

they would watch television while lying on the couch. Wright

would lie behind Daughter and move the telephone behind him.

Wright would then put his hands down her pants, under her

underwear, touching her vagina and her buttocks, and, on

occasion, under her shirt, placing his hand over her heart. Daughter

reported that Wright touched her in this way “[m]aybe more than

10” times with the last incident occurring “a few weeks before he

moved.” Daughter further testified that she did not tell Mother

right away because Daughter “was afraid she wouldn’t believe

[her].” Nevertheless, Daughter explained that she was able to

disclose the abuse to her cousin because she “felt like [she] could

trust her” but that she still feared what might happen if the cousin

revealed the abuse, including that Wright might kidnap her.

Daughter testified that her fear of being kidnapped stemmed from

a television episode of America’s Most Wanted that she had viewed

sometime in 2007 or early 2008, in which the “dad . . . was touching

his daughter . . . inappropriately” and “went to jail[, then] he got

out and he kidnaped her.” In response to defense counsel’s

questions about her visits with Wright after he moved to Las

Vegas, Daughter testified that he did not touch her sexually during

those visits and that she had “a pretty good time visiting him.”

20090643‐CA 2 2013 UT App 142

State v. Wright

Daughter also confirmed that her relationship with her father was

“physically affectionate” and that Wright never threatened her or

told her not to report the touching to anyone.

¶4 Mother and her fiancé each testified about the circumstances

that led to the disclosure and what Daughter had told them.

According to them, Mother, her fiancé, and Daughter were out to

dinner when Daughter told them that Wright had threatened to sue

Mother for custody. Daughter seemed “nervous” about the

situation, but Mother told Daughter not to worry about it because

“[i]t’s an adult situation” that Wright “shouldn’t be bringing . . . up

with [Daughter] in the first place.” Mother told Daughter that she

would “talk to [Wright] about it” and “just kind of let it go.” The

next morning, however, Mother “felt bad” because she typically

“tr[ied] to keep the communication open” by “mak[ing Daughter]

talk to [her] about what she was feeling” when she was upset.

Fearing that she may have been too dismissive with Daughter and

noticing that Daughter was “still a little quiet,” Mother assured

Daughter that she could “tell me things,” even if someone had

made a threat, and analogized the situation to when they had

discussed the difference between good and bad touching and why

Daughter should tell Mother if someone touched her

inappropriately. Daughter then disclosed the abuse. Mother called

the Division of Child and Family Services, which referred her to

Detective Peggy Faulkner, an investigator assigned to the Family

Crimes Unit of the Salt Lake County Sheriff’s Office Investigations

Division.

¶5 Detective Faulkner interviewed Daughter as part of the

investigation that ensued from the sexual abuse Daughter reported.

Detective Faulkner also testified at trial. In the course of its direct

examination, the State asked Detective Faulkner, “Is it uncommon

for you to have cases involving a disclosure that comes years after

an initial event of touching?” Detective Faulkner responded, “No.

No.” Wright’s counsel did not object to this question. But when the

State followed up by asking how many cases Detective Faulkner

had handled where the disclosure occurred a significant period of

time after the abuse, Wright’s counsel did object, arguing that

20090643‐CA 3 2013 UT App 142

State v. Wright

Detective Faulkner was never designated as an expert witness and

that the question seemed to require expert testimony. He also

objected on grounds of “relevance.” The court overruled Wright’s

objections. Detective Faulkner then answered, “I would be willing

to say that at least a third of my cases . . . are victims where they

have either become 18 and are [o]lder or they’ve endured the abuse

living with the suspect without telling anyone for years.”

¶6 The defense called Wright’s mother, his sister, and Wright

himself. Wright’s mother testified that Wright and Daughter were

“very affectionate,” “[a]lways” “snuggling on the couch, watching

TV” with Wright lying behind Daughter. Wright also testified

about the “affectionate” nature of his relationship with Daughter.

Wright explained that his family was physically “[v]ery loving[,

v]ery affectionate” and that he raised Daughter the same way. In

particular, Wright described how he would “lay [on] his

[grandfather’s] lap and have him scratch [his] back[].” Wright drew

a comparison between that activity and his lying on the couch with

Daughter and tickling her stomach and back. Wright also testified

about how he had planned to “gain partial custody” of Daughter

once he moved back to Utah. According to Wright, he told Mother

about his plan shortly before he moved and “it caused a big fight.”

He also explained that while he was living in Las Vegas, his phone

contact with Daughter became less frequent.

¶7 Wright’s mother described her own relationship with

Daughter as “very close” and explained that they would regularly

engage in “girl talk,” during which Wright’s mother had talked to

Daughter about inappropriate touching and Daughter told her

“private things.” Daughter never disclosed that Wright was

inappropriately touching her during these talks. Wright’s sister

testified that Daughter was “like [her] little sister” and they too

were “really close.” Wright’s sister explained that Daughter was

comfortable talking to her and sometimes talked to her about boys

she liked, but Daughter had never reported or even hinted that

Wright was sexually abusing her.

20090643‐CA 4 2013 UT App 142

State v. Wright

¶8 In his closing statement, defense counsel suggested that

Daughter’s testimony could be the product of her imagination

based on events that occurred on age‐inappropriate television

programs that Daughter watched, such as America’s Most Wanted.

According to counsel, the abuse was not real, but Daughter had

recast an event she had seen on television as something that had

happened to her by transforming, over time, Wright’s innocent and

affectionate touching into something inappropriate. Defense

counsel attributed this to Daughter’s recent decision to call

Mother’s fiancé, “Dad,” and her resulting guilt from “turning her

back on [Wright] for another father. But if over time she has

convinced herself that he’s a pedophile, that he’s abused her from

an emotional perspective[,] it makes it easier and it makes it okay.”

Counsel also argued that “[i]t worked” because Daughter “has

gotten exactly what she wants. She is with the family she wants to

be with[ and s]he doesn’t have to see [Wright].” The prosecutor

responded,

[T]here is absolutely no reason not to believe

[Daughter], who, as I told you before gave you every

single piece of evidence that you need for the

elements of this crime. [Daughter] doesn’t want to

hurt her father. She loved him even after he did

horrible things to her. She just wants him to stop

hurting her. You have the power to make that stop.

¶9 The jury convicted Wright on one count of aggravated

sexual abuse of a child and acquitted him on the other count.1

1. Wright was tried on two counts of aggravated sexual abuse of a

child for the first and the last times that he purportedly sexually

touched Daughter. During deliberation, the jury sent a note to the

court, inquiring,

“We would like some clarification on the different

counts. We take the separate counts to mean separate

instances of the alleged crime. If so, we feel the

(continued...)

20090643‐CA 5 2013 UT App 142

State v. Wright

Wright appealed, and on his motion, this court remanded the case

to the district court to conduct a hearing pursuant to rule 23B of the

Utah Rules of Appellate Procedure on the claims that trial counsel

had been ineffective because he had not reasonably investigated or

pursued a fabrication defense and he did not effectively use

available witnesses and evidence at trial. See Utah R. App. P. 23B(a)

(“A party to an appeal in a criminal case may move the [appellate]

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.”). The district court on rule 23B

remand concluded that Wright’s trial counsel had not been

ineffective. The court supported its decision with detailed factual

findings.

ISSUES AND STANDARDS OF REVIEW

¶10 Wright makes three claims on appeal. First, he argues that

trial counsel provided ineffective assistance when he failed to

adequately investigate the merits of both the defense urged by

Wright (fabrication) and the defense trial counsel pursued

(mistake). Wright also asserts that counsel underutilized available

evidence and witnesses at trial. “In ruling on an ineffective

assistance claim following a Rule 23B hearing, [appellate courts]

defer to the trial court’s findings of fact, but review its legal

1. (...continued)

evidence may support different conclusions for each

count.

For instance the evidence of the incident

happening in August 2007 [as opposed to the

incident occurring in March 2005] is stronger.

Therefore, if we conclude guilty for this date, which

count, (Count I or II) would this apply?”

Upon the advice of counsel, the court instructed the jury, “Count

one applies to the earlier date. Count two applies to the later date.”

The jury convicted Wright on count two.

20090643‐CA 6 2013 UT App 142

State v. Wright

conclusions for correctness.” State v. Bredehoft, 966 P.2d 285, 289

(Utah Ct. App. 1998) (citation and internal quotation marks

omitted). “An ineffective assistance of counsel claim raised for the

first time on appeal presents a question of law.” State v. Clark, 2004

UT 25, ¶ 6, 89 P.3d 162.

¶11 Next, Wright asserts that the district court erred in allowing

Detective Faulkner to testify about the incidence of delayed

reporting in sexual abuse cases when Detective Faulkner had not

been designated or qualified as an expert witness. Ordinarily, we

review evidentiary rulings regarding the admissibility of witness

testimony for abuse of discretion. State v. Tarrats, 2005 UT 50, ¶ 16,

122 P.3d 581 (“[W]e will not reverse the trial court’s ruling on

evidentiary issues unless it is manifest that the trial court so abused

its discretion that there is a likelihood that injustice resulted.”

(citation and internal quotation marks omitted)). The State,

however, argues that this issue was not preserved and that our

review is accordingly limited to determining whether the court

committed plain error or counsel provided ineffective assistance.

To make out a claim of plain error, “a defendant must demonstrate

that [1] an error exists; [2] the error should have been obvious to

the trial court; and [3] the error is harmful, i.e., absent the error,

there is a reasonable likelihood of a more favorable outcome.” State

v. Sellers, 2011 UT App 38, ¶ 8, 248 P.3d 70 (alterations in original)

(citation and internal quotation marks omitted). To establish

ineffective assistance, a defendant must show that counsel’s

performance was deficient and prejudicial “to the degree that but

for counsel’s deficient performance, there is a reasonable

probability that the outcome of the trial would have been

different.” Id. ¶ 9 (citation and internal quotation marks omitted);

accord Strickland v. Washington, 466 U.S. 668, 694 (1984) (explaining

that “[a] reasonable probability is a probability sufficient to

undermine confidence” in the verdict).

¶12 Finally, Wright claims prosecutorial misconduct during the

State’s closing statement. Because Wright did not object to the

prosecutor’s statements in the district court, we review the claim

20090643‐CA 7 2013 UT App 142

State v. Wright

under the doctrines of plain error and ineffective assistance of

counsel. See Sellers, 2001 UT App 38, ¶¶ 7–9.

ANALYSIS

I. Ineffective Assistance of Counsel

¶13 Wright argues that he is entitled to a new trial because he

received ineffective assistance from his trial counsel. To establish

ineffective assistance, “a defendant must . . . demonstrate that

counsel’s performance was deficient, in that it fell below an

objective standard of reasonable professional judgment[,] . . . [and]

show that counsel’s deficient performance was prejudicial—i.e.,

that it affected the outcome of the case.” State v. Litherland, 2000 UT

76, ¶ 19, 12 P.3d 92. To show that his counsel performed

inadequately, a defendant must “rebut the strong presumption that

under the circumstances the challenged action might be considered

sound trial strategy.” Id. (citation and internal quotation marks

omitted). This presumption “may be overcome only if there is a

lack of any conceivable tactical basis for counsel’s actions.” State v.

King, 2012 UT App 203, ¶ 14, 283 P.3d 980 (citation and internal

quotation marks omitted). “Additionally, because both deficiency

and prejudice must be shown, a reviewing court can dispose of an

ineffectiveness claim on either ground.” State v. Bair, 2012 UT App

106, ¶ 49, 275 P.3d 1050 (citation and internal quotation marks

omitted).

¶14 Wright claims that his counsel was ineffective because he

failed to adequately investigate Wright’s preferred defense of

fabrication, failed to adequately investigate the mistake defense

counsel advocated, and failed to make effective use of the available

witnesses and evidence at trial. On Wright’s motion, we remanded

the case to the district court to make findings necessary to the

determination of whether trial counsel failed to reasonably

investigate a fabrication defense and to make appropriate use of

20090643‐CA 8 2013 UT App 142

State v. Wright

the available witnesses and evidence.2 Wright has raised the failure

to investigate a mistake defense for the first time on appeal. In this

section, we will first address Wright’s claims that counsel failed to

investigate the two possible defenses, including his claim that a

complete investigation of the fabrication defense would have

caused counsel to “realize[] that his reasons for doubting the

viability of the defense were unfounded.” We will then consider

counsel’s decisions not to use the exhibits Wright provided him

and not to call certain witnesses at trial. Finally, we will evaluate

Wright’s claim that counsel did not effectively examine Wright’s

mother and sister at trial.

A. Counsel Did Not Fail To Investigate the Potential Defenses, and

His Pursuit of a Mistake Defense Was a Reasonable Tactical

Decision.

¶15 Wright claims that counsel failed to reasonably investigate

either Wright’s preferred defense of fabrication or the mistake

defense that counsel actually presented. With regard to the

fabrication defense, Wright argues that counsel, having heard

Daughter’s and Mother’s testimonies at the preliminary hearing,

did not fully consider all of the testimony about the acrimony

between Mother and Wright as well as the circumstances leading

to Daughter’s disclosure that Wright’s witnesses were prepared to

provide in response at trial. In particular, the witnesses could have

explained that Mother had recently insisted that Daughter call

Mother’s fiancé, “Dad,” and that Mother had told Daughter that

Wright was planning to seek custody of Daughter. Wright claims

that had counsel conducted such an investigation, counsel not only

would have seen the viability of a fabrication defense but also

would have viewed it as superior to the mistake defense. With

respect to his claim that counsel failed to conduct an adequate

investigation of the mistake defense, Wright asserts that counsel

2. We commend the district court for the care and detail with which

it entered its findings and conclusions.

20090643‐CA 9 2013 UT App 142

State v. Wright

did not research the defense sufficiently to be able to effectively

explain to the jury why Daughter was mistaken.

¶16 The Utah Supreme Court has stated that “counsel can make

a reasonable decision to call or not to call particular witnesses for

tactical reasons” in presenting a defense “only after an adequate

inquiry” into “the underlying facts of a case, including the

availability of prospective defense witnesses.” State v. Templin, 805

P.2d 182, 188 (Utah 1991). Wright contends that because testimony

from several potential defense witnesses would have supported his

claim that Daughter had been induced to lie, his counsel must have

inadequately investigated a fabrication defense. On remand,

however, the district court determined that counsel “knew of the

substance of the testimony” of available defense witnesses and

“adequately investigated their potential testimony,” although it

recognized that counsel “only spent a minimal amount of time

preparing” one witness who had information pertinent to the

fabrication defense. Wright has not contested the court’s findings

that counsel was adequately aware of the testimony supporting a

fabrication defense. Wright has therefore failed to demonstrate that

counsel’s investigation fell outside the “wide range of reasonable

professional assistance.” See Strickland v. Washington, 466 U.S. 668,

689 (1984).

¶17 Wright also claims that counsel’s investigation of the

mistake defense was incomplete because he relied on Daughter’s

exposure to “adult content” in age‐inappropriate television

programs and books without researching their contents. According

to Wright, had counsel investigated, he would have learned that

the television programs Daughter may have been exposed to

covered the topics of sexuality, family discord, and use of abuse

allegations to alienate an accused parent and that Daughter was

reading books that contained sexual content “too graphic for a ten‐

year‐old child.” The State counters that Wright’s claim requires

speculation that the contents of the television shows and books

would have bolstered the defense. We agree. Wright’s claim is

based on the premise that additional research into the content of

the media to which Daughter might have been exposed would

20090643‐CA 10 2013 UT App 142

State v. Wright

have provided information useful to the mistake defense. While

there is evidence in the record that Daughter “loved” watching

Oprah and also watched America’s Most Wanted and Dr. Phil on

occasion, Wright has failed to support, with specific facts, his

contention that counsel’s failure to look further into this subject

would likely have provided substantial additional evidence to

support a mistake defense. For example, Wright identifies the

suggestive titles of several episodes of Dr. Phil (e.g., “Is there a

Predator in the House?,” “Family Court Battles,” “Controversial

Love Affairs,” and “You’re a Liar!”). He fails, however, to show

either that Daughter actually watched the specific episodes he

identifies, which he claims would have provided her with

information helpful to the fabrication of her abuse allegations or

may have caused her to misinterpret innocent touching as sexual

and inappropriate, or that she watched the programs frequently

enough that her exposure to specific programs could reasonably be

inferred. Nor has Wright adequately identified what he claims to

be the graphic sexual content of the books she read or analyzed

how the content of such books might be shown to have affected her

disclosure. As a consequence, his contentions are too vague to

support more than speculation that counsel was deficient in not

further investigating either the television or book matters. Cf. Allen

v. Friel, 2008 UT 56, ¶ 27, 194 P.3d 903 (affirming the dismissal of an

ineffective assistance claim on a petition for postconviction relief

because the claim was “vague and speculative”). See generally State

v. Garrett, 849 P.2d 578, 581 (Utah Ct. App. 1993) (explaining that

without specific facts to demonstrate that counsel’s failure to object

was due to deficiency rather than trial strategy, the defendant’s

claim amounted to speculation, and mere speculation is insufficient

to overcome the presumption of sound trial strategy).

¶18 Furthermore, the evidence counsel actually presented at trial

to portray Daughter as confused or mistaken about appropriate

and inappropriate touching indicates that he was reasonably

informed of Daughter’s potential exposure to the subject matter.

For example, he established that Daughter sometimes watched

Oprah, Dr. Phil, and America’s Most Wanted and followed up on

Daughter’s admission that her fear about disclosing the abuse

20090643‐CA 11 2013 UT App 142

State v. Wright

stemmed from an episode of America’s Most Wanted, in which the

father had been touching his daughter inappropriately and

kidnapped her after she reported it; he elicited testimony from

Detective Faulkner that when asked if “anyone else touched you in

a way that made you uncomfortable,” Daughter had reported

innocent touching of her chest and buttocks by other children while

they were playing; and he pointed out that Mother “specifically . . .

brought up the good touch/bad touch analogy” in the context of a

discussion with Daughter about Wright seeking custody that

ultimately led to Daughter’s disclosure.

¶19 Wright’s claim that counsel’s investigation of the mistake

defense was deficient therefore amounts merely to speculation

about what more counsel might have done. Furthermore, his use

of the available information to pursue such a defense otherwise

appears appropriate. As a result, Wright’s claim that counsel was

ineffective for failing to adequately investigate the mistake defense

is unpersuasive.

¶20 Finally, Wright asserts that the mistake defense was

strategically “inferior” to the fabrication defense “because it is

incomplete: It explained how [Daughter] could manufacture false

allegations of abuse, but not why she would.” Wright’s attack on

trial counsel’s strategic decision at this stage in the proceeding,

however, is made with the benefit of hindsight. Even if Wright’s

proposed approach to his defense might actually have amounted

to a better strategy than the one his counsel chose, we will not

conclude that trial counsel was ineffective unless “there is a lack of

any conceivable tactical basis for counsel’s actions,” State v. King,

2012 UT App 203, ¶ 14, 283 P.3d 980 (citation and internal

quotation marks omitted). See Strickland, 466 U.S. at 690

(“[S]trategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable.”);

State v. Graham, 2013 UT App 72, ¶ 15, 299 P.3d 644 (explaining that

once counsel has investigated the underlying facts, strategic

decisions regarding those facts cannot be deemed deficient except

where there is no reasonable basis for them). In reviewing a claim

of ineffective assistance,

20090643‐CA 12 2013 UT App 142

State v. Wright

“judicial scrutiny of counsel’s performance must be

highly deferential” because “it is all too easy for a

court, examining counsel’s [performance] after it has

proved unsuccessful, to conclude that a particular act

or omission of counsel was unreasonable.” Therefore,

the court must “eliminate the distorting effects of

hindsight . . . and . . . evaluate the conduct from

counsel’s perspective at the time.”

Menzies v. Galetka, 2006 UT 81, ¶ 89, 150 P.3d 480 (alteration and

omissions in original) (quoting Strickland, 466 U.S. at 689).

Consequently, a reviewing court “will not second‐guess trial

counsel’s legitimate strategic choices, however flawed those

choices might appear in retrospect.” State v. Tennyson, 850 P.2d 461,

465 (Utah Ct. App. 1993) (citing Strickland, 466 U.S. at 689).

¶21 The district court’s findings on this subject, which Wright

does not challenge, demonstrate that there were legitimate bases

for counsel’s decision to rely on a mistake defense at trial. The

court explained that although at least one available witness had

information with which counsel could have formulated a

fabrication defense, “the theory that [Daughter] was induced [by

Mother] to lie or decide on her own to falsify the allegations in

order to prevent her father from obtaining custody is at odds with

the evidence of [Daughter’s] disclosure to her cousin” in July 2008,

in which she urged the cousin not to tell anyone else, and with

Mother’s failing to “suspect[] abuse, allow[ing Daughter] to go on

trips to visit [Wright] unsupervised, and believ[ing Wright] to be

a good and loving father.” Rather, the court reasoned, counsel

judged that a mistake defense would be more persuasive to jurors,

who would want an explanation for “how a child who came across

as credible and intelligent would make up allegations against her

father.” The court concluded that, given the totality of the available

evidence, counsel’s decision to pursue a mistake defense rather

than a fabrication defense was a “reasonable trial strategy.”

¶22 We conclude that the district court’s conclusion was

supported by the evidence. The district court found that trial

20090643‐CA 13 2013 UT App 142

State v. Wright

counsel interviewed all but one of the available defense witnesses

and was aware of the information to which each witness was

prepared to testify. From this available information, counsel elected

to pursue a mistake defense rather than a fabrication defense.

While a fabrication defense appears viable, the exercise of

professional judgment in choosing one approach over another is an

endeavor that often involves a complex weighing of benefits and

risks, and the decision counsel made in this instance amounted to

a reasonable trial strategy given the totality of the evidence.

Because there was a “conceivable tactical basis for counsel’s

action,” State v. King, 2010 UT App 396, ¶ 31, 248 P.3d 984 (citation

and internal quotation marks omitted), we “will not second‐guess”

his decision, see Tennyson, 850 P.2d at 465.

B. Counsel’s Decision Not To Call Additional Witnesses or Present

Documentary Evidence Falls Within the Scope of Legitimate Trial

Strategy.

¶23 Wright next contends that trial counsel had no legitimate

strategic reason for not calling additional defense witnesses or

presenting certain photographs, videos, and phone (audio and text)

messages that documented his and Daughter’s loving and

appropriate relationship. At the rule 23B hearing, the trial court

concluded that counsel did not perform deficiently in choosing not

to call certain additional defense witnesses because, although those

witnesses appeared to be credible, they were on balance unlikely

to have added substantively to the defense. For example, the court

found that if Wright’s brother had been called at trial, his testimony

would have been much the same as that of Wright’s mother and

sister. Yet calling him posed some risk because he “was ambivalent

about being a witness in light of his divided feelings” for Daughter,

his niece, and Wright, his brother. Wright’s aunt may have “added

some information” about Daughter and Wright’s relationship, but

she was so focused on defending the family’s practice of physically

showing affection (specifically through back scratching) that she

became “non‐responsive to questions and seemingly very

defensive” as soon as this issue was raised. A third witness offered

information that was largely inadmissible.

20090643‐CA 14 2013 UT App 142

State v. Wright

¶24 With respect to the documentary evidence, the court

concluded that counsel acted reasonably in not presenting

photographs, videos, and phone messages from Daughter,

provided to him by Wright and his family, which Wright contends

showed that Daughter was happy and loving with him. The court

found that counsel had explained that most of the photographs

were of Daughter “smiling” “in the course of some fun or happy

event” with Wright. Counsel did not want to admit too many of

these photographs because he believed that the jury found

Daughter to be both credible and compelling and was concerned

that “the jury would look at the cute photos of [Daughter] in the

jury room” and be “remind[ed of] . . . how much they believed

her.” Furthermore, many of the photographs were of Daughter’s

visit with Wright in Las Vegas after the abuse had stopped. And

there was no dispute that Daughter had positive interactions with

Wright after he moved to Las Vegas and the abuse stopped.

Daughter even testified at trial that she “ha[d] a pretty good time

visiting [Wright] in Vegas.”

¶25 Counsel omitted the remaining documentary evidence for

similar reasons. The court found that the videos and phone

messages showing Wright and Daughter interacting positively did

“not carry much weight” because Daughter herself had testified

that she loved Wright and that they usually did fun activities

together. The court also noted that counsel was reluctant to use a

video “where [Wright] said, ‘Tell me you love me’” to Daughter

because he thought it “could be perceived as creepy by the jury”

when viewed in the context of the abuse allegations. Wright has not

challenged these findings. Therefore, we accept the facts as the

district court found them. See State v. Bredehoft, 966 P.2d 285, 289

(Utah Ct. App. 1998).

¶26 These facts support the district court’s conclusion that trial

counsel’s decision to exclude the documentary evidence did not

amount to ineffective representation. For example, trial counsel

determined that a fabrication defense would be unlikely to be

successful because, among other things, it was “at odds with the

evidence of [Daughter’s] disclosure to her cousin. . . . [and] urg[ing]

20090643‐CA 15 2013 UT App 142

State v. Wright

her cousin not to tell anyone.” Counsel therefore decided to present

a defense that Daughter had mistaken innocent touching and

manifestations of affection as sexual and inappropriate—a

misperception fueled by her growing relationship with Mother’s

fiancé and exposure to age‐inappropriate media. Counsel’s

decisions about which witnesses to call and the scope of the

testimony he sought from them were thus intended to be consistent

with a mistake defense. Counsel’s decision not to use the

photograph and video exhibits of Daughter was based on a similar

rationale: counsel judged Daughter’s testimony to be “very

compelling” and “[h]e didn’t want to inject her into the jury room

. . . because the jury would look at the cute photos of [Daughter] . . .

and the photos would remind them how much they believed her.”

Further, multiple photographs of Daughter enjoying the time she

spent with Wright might undermine his theory that Daughter was

simply mistaken or confused about the abuse, while the video

evidence could cause the jury to view Wright’s relationship with

Daughter as “creepy.” The court concluded that these exhibits had

“limited evidentiary value” in that they “were not exculpatory

because they “did not establish that the abuse did not occur” but

instead “were, at best[,] cumulative of other exhibits and testimony

that showed that [Wright] and [Daughter] appeared to have a

loving and affectionate relationship” and, at worst, could be

perceived negatively by the jury, as counsel feared. Counsel’s other

decisions regarding which evidence to present were also based on

his concern that Daughter’s credibility not be inadvertently

enhanced by evidence that was of only limited value to the

defense.3 Therefore, the court’s conclusion that counsel had a

plausible strategic basis for declining to call additional defense

witnesses or to introduce the additional documentary evidence

3. For instance, the court concluded that counsel had a “legitimate

strategy” in “not want[ing] to dwell on the back‐scratching”

because although it served to corroborate Wright’s description of

his family members as physically affectionate with one another, it

could also raise questions about their understandings of

appropriate boundaries.

20090643‐CA 16 2013 UT App 142

State v. Wright

Wright provided appears to be well founded. When there is a

conceivable trial strategy for counsel’s decision, his performance is

not deficient. State v. King, 2012 UT App 203, ¶ 14, 283 P.3d 980.

C. Counsel Was Not Deficient in Limiting the Use of Wright’s

Mother’s and Sister’s Testimonies.

¶27 Finally, Wright contends that counsel was ineffective for

failing to fully utilize the defense witnesses on direct examination.

Specifically, he asserts that counsel failed to question his mother

and sister about their knowledge of information that could rebut

the prosecution witnesses’ testimonies. For example, Wright

contends that his mother and sister could have countered

Daughter’s testimony that she did not love her dad and was scared

during the time the abuse was occurring with specific examples of

instances when Wright and Daughter demonstrated love and

affection toward one another. He further claims that his mother

and sister would have offered testimony to show that Daughter

was visibly distressed during a visit with Wright in August 2008,

which was very close in time to her disclosure to Mother. Wright

explains that Daughter’s visit was immediately preceded by a

vacation with Mother and her fiancé, during which Mother insisted

that Daughter call the fiancé, “Dad.” Wright’s sister could also

have testified that Daughter had disclosed during the visit that

Mother had told her that Wright was trying to get custody so as to

take her away from Mother. According to Wright, testimony about

the circumstances surrounding that visit with Daughter would

have demonstrated Daughter’s “motive to misinterpret innocent

touches as abuse” because she was confused about how her

relationships with Wright and Mother’s fiancé could co‐exist and

she was worried that Wright might take her away from Mother.

Wright further contends that the evidence could have shown that

Mother had “a motive to encourage [Daughter] to allege abuse” to

ensure that Wright would not receive custody of Daughter.

¶28 The district court determined, however, that trial counsel

knew that Wright’s mother and sister were prepared to testify to

these things but that this “additional testimony would not have

20090643‐CA 17 2013 UT App 142

State v. Wright

advanced [trial counsel]’s theory of the case,” which was mistake.

The court reiterated that pursuing a mistake defense was a

reasonable trial strategy that “the Court must sanction . . . , even if

it appears flawed in retrospect.” Wright has not challenged the

district court’s finding that counsel was aware that this testimony

was available. And because counsel knew about this information

but elected not to elicit it at trial based on his judgment that it

would not further the mistake defense, Wright has failed to

overcome the presumption that counsel’s performance “fell below

an objective standard of reasonable professional judgment” that

would render his performance ineffective. See State v. Litherland,

2000 UT 76, ¶ 19, 12 P.3d 92 (explaining that in order for a

defendant to show that counsel performed inadequately, a

defendant must “rebut the strong presumption that under the

circumstances, the challenged action might be considered sound

trial strategy” (citation and internal quotation marks omitted)).

¶29 The district court, however, did criticize one decision that

trial counsel made regarding the scope of Wright’s sister’s

testimony. As discussed above, the sister was prepared to testify

that, in August 2008,4 Daughter told her and Wright’s mother about

a conversation in which Mother had told Daughter that Wright was

trying to get custody of her and take her away from Mother.

Apparently based on his decision to pursue a defense of mistake

rather than fabrication, counsel did not present this testimony. The

court concluded that “[t]here was no legitimate trial strategy that

would have allowed [counsel] to fail to put on this evidence.” This

conclusion is difficult to reconcile with the court’s earlier

determinations that the underlying decision not to pursue a

fabrication defense was a legitimate strategic approach and that

counsel was not deficient in failing to elicit this very testimony

4. In its findings, the court stated that this disclosure occurred in

August 2010. Based on other portions of the record, it appears that

the conversation must have occurred in 2008. We therefore treat the

2010 date as a typographical error.

20090643‐CA 18 2013 UT App 142

State v. Wright

from Wright’s sister because it would not have supported the

mistake defense counsel chose.

¶30 After carefully reviewing the district court’s entire decision

regarding counsel’s trial performance, we have concluded that the

apparent inconsistency results from the format of the court’s

decision. When we remanded for a rule 23B hearing, we asked the

district court to make findings and conclusions about counsel’s

decisions regarding three specific categories of evidence:

documentary exhibits, uncalled defense witnesses, and utilized

defense witnesses. The court set up its written findings of fact and

conclusions of law in this same arrangement. An overarching issue,

however, in both the motion to remand and the arguments made

at the rule 23B hearing was whether trial counsel adequately

investigated the fabrication defense before he elected to pursue a

mistake defense. As a result, the court made determinations in the

context of each category of evidence about counsel’s investigation

of the fabrication defense and his decision to instead defend on the

basis of mistake. In all but this one instance regarding the sister’s

testimony about Wright seeking custody, the court determined that

counsel had a legitimate strategic reason for his decision to use

only the evidence supporting a mistake defense. When the court

evaluated counsel’s decisions regarding the sister’s testimony, it

again stated that “counsel’s strategy of not maligning [Mother] and

to try to present [Daughter] as confused was a legitimate strategy.”

Yet it then went on to say that counsel was deficient for precluding

sister’s testimony about Daughter’s statement because “this

evidence could have provided a basis to believe that [Daughter]

and/or [Mother] had a motive to falsify the allegations.”

¶31 The court appeared to be stating that in this category of

evidence—the use of Wright’s mother’s and sister’s

testimonies—there was some factual basis for a fabrication defense.

The court went on to conclude, however, that when viewed in the

context of the evidence as a whole, a fabrication defense still would

have been unlikely to succeed because even if the jury believed the

sister’s testimony, an event the court deemed unlikely, there was

a dearth of other evidence to corroborate a claim that the abuse

20090643‐CA 19 2013 UT App 142

State v. Wright

allegations had been fabricated. This assessment of the relative

strength of the fabrication defense thus seems consistent with the

court’s earlier statement that “[a]lthough the testimony offered by

. . . [Wright’s sister] may have been material to a jury, counsel’s

strategy . . . to try to present [Daughter] as confused was a

legitimate strategy.”

¶32 As previously discussed, we agree that the district court’s

uncontested findings regarding the substance and content of

available witness testimony and documentary evidence support a

conclusion that it was reasonable trial strategy for trial counsel to

pursue a defense of mistake rather than fabrication. And based on

our view of the totality of the evidence and the court’s decision as

a whole, we do not see the court’s isolated criticism of trial

counsel’s performance to undermine its overarching decision that

counsel did not perform deficiently in deciding on a defense

strategy, even when the potential value of Wright’s sister’s

testimony is taken into account. See State v. Bredehoft, 966 P.2d 285,

289 (Utah Ct. App. 1998) (“In ruling on an ineffective assistance

claim following a Rule 23B hearing, [appellate courts] defer to the

trial court’s findings of fact, but review its legal conclusions for

correctness.” (citation and internal quotation marks omitted)).

Because Wright has not demonstrated that counsel’s performance

in choosing a strategic approach to the defense was deficient, his

ineffective assistance claim regarding counsel’s use of his mother’s

and sister’s testimonies must also fail.

¶33 In summary, we agree with the district court’s conclusions

that trial counsel’s investigation provided him with sufficient

information about available witnesses and exhibits to allow him to

make an informed decision about whether to pursue a fabrication

defense or a mistake defense at trial. Counsel had a legitimate basis

for choosing the mistake defense and making decisions about what

evidence to present. Because his decisions not to present the

documentary exhibits or the testimony of Wright’s brother, aunt,

and friend and to limit the scope of the testimony of Wright’s

mother and sister were based on this strategic decision and tactical

considerations about credibility and effectiveness of particular

20090643‐CA 20 2013 UT App 142

State v. Wright

evidence, they did not amount to deficient performance.

Accordingly, we conclude that the district court did not err in

determining that counsel provided effective assistance in

investigating possible defenses and defending Wright at trial.

II. Detective Faulkner’s Testimony

¶34 Wright next challenges Detective Faulkner’s testimony

regarding the prevalence of delayed reporting of sexual abuse.

Wright’s challenge involves two statements: (1) Detective

Faulkner’s response, “No. No.” when the State asked, “Is it

uncommon for you to have cases involving a disclosure that comes

years after an initial event of touching?” and (2) Detective

Faulkner’s statement, in response to the State’s inquiry about how

many of the cases she had investigated involved a significant delay

in reporting, that “at least a third of my cases . . . are victims where

they have either become 18 and are [o]lder or they’ve endured the

abuse living with the suspect without telling anyone for years.”

¶35 Utah courts have recognized that “‘[d]elayed discovery and

reporting are common in [child sexual abuse] cases.’” State v. Bair,

2012 UT App 106, ¶ 47, 275 P.3d 1050 (alterations in original)

(quoting State v. Hoyt, 806 P.2d 204, 209 (Utah Ct. App. 1991)). In

Bair, for example, a detective testified that “‘[b]ased on the

probably hundreds of [abuse] cases [he has] investigated, it’s not

uncommon for a victim not to disclose initially.’” Id. ¶ 7 (alterations

in original). The defendant sought reversal on appeal because such

testimony “invaded the province of the jury” to assess credibility.

Id. ¶ 44. We observed that “[s]imply noting that abuse victims often

delay reporting did not” vouch for the victim’s veracity because

that testimony reflected “a fact already recognized by Utah courts.”

Id. ¶ 47. As in Bair, Detective Faulkner’s negative response to the

question about whether it was uncommon to have cases where the

abuse went unreported for a period of time simply relayed a

common fact to the jury and did not convey any information about

how it should view the testimony or other evidence in the case.

20090643‐CA 21 2013 UT App 142

State v. Wright

¶36 Detective Faulkner’s testimony, however, went a step

beyond recognition of the general principle that delayed reporting

is common when she reported that one‐third of the “[h]undreds”

of “child sex abuse” cases that she has investigated over five years

involved delayed reporting of the abuse. According to Wright, this

kind of quasi‐statistical information falls within the realm of

“knowledge [that] is not within the ken of the average bystander,”

State v. Rothlisberger, 2006 UT 49, ¶ 34, 147 P.3d 1176, and is

therefore governed by evidence rules dealing with expert

testimony, id. ¶¶ 11–12 (“Expert testimony, which is treated under

rule 702 [of the Utah Rules of Evidence], is opinion or fact

testimony based on scientific, technical, or otherwise specialized

knowledge” and is subject to “various qualification and advance

disclosure requirements.”). Wright further contends that this quasi‐

statistical information “encouraged the jury ‘to focus upon a

seemingly scientific, numerical conclusion rather than to analyze

the evidence before it and decide where the truth lies.’” (Quoting

State v. Rammel, 721 P.2d 498, 501 (Utah 1986).) The State counters

that even if Detective Faulkner’s testimony regarding the

percentage of her cases that involved delayed reporting was

inadmissible, its admission did not prejudice Wright’s case and

thus was harmless error not requiring reversal. See generally State

v. Otterson, 2010 UT App 388, ¶ 11, 246 P.3d 168 (“Utah appellate

courts have long required a showing of harm to warrant reversal

in the face of an erroneous evidentiary ruling.” (citing State v. Kohl,

2000 UT 35, ¶ 17, 999 P.2d 7; State v. White, 880 P.2d 18, 21 (Utah Ct.

App. 1994))).

¶37 We agree with the State. Even assuming for purposes of

appeal that Detective Faulkner’s testimony about the percentage of

cases involving delayed reporting was inadmissible, Wright has

not demonstrated any harm that resulted from its admission.

Wright argues that because the jury acquitted him of one charge of

aggravated child sexual abuse, it likely would have acquitted him

of the second charge had it not heard Detective Faulkner’s

testimony. Wright does not, however, contend that Detective

Faulkner lacked the knowledge or experience to offer such

information, even conceding that she had investigated

20090643‐CA 22 2013 UT App 142

State v. Wright

“[h]undreds” of sexual abuse cases. Nor does he contest the

accuracy of her statement. Indeed, an incidence of “one‐third”

appears to be generally consistent with her testimony that delayed

reporting is not uncommon—testimony that the jury could

properly hear—and the increment of precision it adds to the more

general statement seems too small to undermine the defense in any

material way.5 Without any showing that the admission of

Detective Faulkner’s statement was likely to have unfairly affected

the outcome of the proceedings, we will not disturb the jury’s

verdict, even if the testimony was erroneously admitted.

III. Prosecutor’s Closing Remarks

¶38 Finally, Wright contends that the State engaged in

prosecutorial misconduct during its closing argument. Specifically,

Wright takes issue with the prosecutor’s response to trial counsel’s

contention that Daughter transmuted an innocent touch into an

inappropriate one to help her justify referring to Mother’s fiancé as

“Dad” and to eliminate Wright from her life. Wright’s counsel

argued that Daughter “has gotten exactly what she wants. She is

with the family she wants to be with[ and s]he doesn’t have to see

[Wright].” The prosecutor responded directly to this argument in

rebuttal:

[T]here is absolutely no reason not to believe

[Daughter], who, as I told you before gave you every

single piece of evidence that you need for the

elements of this crime. [Daughter] doesn’t want to

hurt her father. She loved him even after he did

horrible things to her. She just wants him to stop

hurting her. You have the power to make that stop.

5. The statement that only one‐third of the cases involved delayed

reporting, a relatively low percentage, could even be seen as

somewhat helpful to the defense because it eliminated any

speculation that “not uncommon” might be a significantly greater

proportion.

20090643‐CA 23 2013 UT App 142

State v. Wright

Wright argues that these remarks were improper because they

“divert[ed] the jury from its duty to decide the case on the

evidence.” See State v. Todd, 2007 UT App 349, ¶ 18, 173 P.3d 170

(citation and internal quotation marks omitted). He further

contends that the final statement is the most damaging because it

was “‘designed to appeal to the jurors’ sentiments by charging the

jury to convict [Wright] in order to ensure [Daughter’s] safety.’”

(First alteration in original.) (Quoting State v. Tosh, 91 P.3d 1204,

1212 (Kan. 2004).) The State counters that Wright opened the door

to such remarks by attributing a specific motive to Daughter that

provoked what amounted to a “fair reply” from the prosecutor. See

United States v. Schwartz, 655 F.2d 140, 142 (8th Cir. 1982) (“It is well

settled that prejudicial error does not result from the improper

remarks made during closing argument when such remarks were

provoked by the opposing counsel. When the defense counsel

chose to open the door on the issue . . . , the counteracting

statement made by the prosecutor fell within the doctrine of fair

reply.” (citation omitted)); United States v. Daniels, 617 F.2d 146, 150

(5th Cir. 1980) (same).

¶39 “Generally speaking, in argument to the jury, counsel for

each side has considerable latitude and may discuss fully from

their viewpoints the evidence and the inferences and deductions

arising therefrom.” State v. Tillman, 750 P.2d 546, 560 (Utah 1987).

However, “[a] prosecutor’s actions and remarks constitute

misconduct that merits reversal if the actions or remarks call to the

attention of the jurors matters they would not be justified in

considering in determining their verdict and, under the

circumstances of the particular case, the error is substantial and

prejudicial . . . .” Id. at 555. “In determining whether a given

statement constitutes prosecutorial misconduct, the statement must

be viewed in light of the totality of the evidence presented at trial.”

State v. Longshaw, 961 P.2d 925, 927 (Utah Ct. App. 1998) (citation

and internal quotation marks omitted).

¶40 We agree with the State that the first four sentences of the

prosecutor’s response fall within the fair reply doctrine. Wright

encouraged the jury to view the facts and inferences from the

20090643‐CA 24 2013 UT App 142

State v. Wright

evidence in a manner that supported his theory that Daughter was

mistaken about how Wright had touched her, and in closing

suggested that her mistake had an aspect of calculation to it in that

it furthered her goal of getting Wright out of her life so she could

be “with the family she wants to be with.” In response, the State

was entitled to argue from the evidence at trial that Daughter had

a different motivation for the accusations than simply eliminating

Wright from her life, that is, to protect herself from abuse.

¶41 We agree with Wright, however, that the prosecutor’s final

statement—“You have the power to make that [(the abuse)]

stop.”—is beyond the scope of a fair reply. It does not rebut any

statements made by Wright; instead, the statement calls on the jury

to assume the responsibility of ensuring Daughter’s safety. Such a

statement appeals to the jurors’ emotions by contending that the

jury has a duty to protect the alleged victim—to become her

partisan—which diverts their attention from their legal duty to

impartially apply the law to the facts in order to determine if

Wright had committed the crimes of aggravated sexual abuse of a

child for which he was on trial. See generally Tosh, 91 P.3d at 1212

(noting that asking the jury to protect the victim of sexual abuse

“fell outside the wide latitude afforded a prosecutor” because such

comments are “designed solely to inflame the passions of the jurors

and divert their attention” from the evidence that is intended to

help them decide guilt or innocence). Yet, despite the impropriety

of the prosecutor’s remark, it does not require reversal. As the Utah

Supreme Court stated in State v. Ross, 2007 UT 89, 174 P.3d 628,

The test of whether the remarks made by counsel are

so objectionable as to merit a reversal in a criminal

case is, did the remarks call to the attention of the

jurors matters which they would not be justified in

considering in determining their verdict, and were

they, under the circumstances of the particular case,

probably influenced by those remarks.

. . . . If prosecutorial misconduct is established, the

State must show that the error was harmless beyond

a reasonable doubt.

20090643‐CA 25 2013 UT App 142

State v. Wright

Id. ¶ 54 (citation and internal quotation marks omitted) (setting

forth this standard in context of plain error review).6

6. Whether the defendant or the State bears the burden of showing

harm and what the standard of proof is if the burden shifts to the

State (whether harmless beyond a reasonable doubt or some lesser

standard) are questions that we do not resolve because the issue

has not been briefed in a meaningful way and the questions are not

readily resolvable under our current precedent. The Utah Supreme

Court in State v. Ross, 2007 UT 89, 174 P.3d 628, sets forth the

general burden‐shifting principle in a case that involves an instance

of prosecutorial misconduct that did not implicate the defendant’s

fundamental constitutional rights. But without disavowing Ross, a

recent case, State v. Maestas, 2012 UT 46, 299 P.3d 892, seems to call

into question the breadth of Ross’s application. Whereas in Ross, the

prosecutor’s misconduct involved a closing argument that

distorted the evidence related to the question of whether the

defendant’s two charges were part of a single criminal episode,

2007 UT 89, ¶ 56, in Maestas, the prosecutor had commented on the

defendant’s right to remain silent at trial, a significantly deeper

intrusion on the defendant’s fundamental rights, 2012 UT 46, ¶ 161.

And in Maestas, the supreme court seemed to suggest that the

requirement that the state show that the prosecutorial misconduct

was harmless beyond a reasonable doubt applied only when the

error amounted to the infringement of a defendant’s fundamental

rights: “‘[A]n otherwise valid conviction should not be set aside if

the reviewing court may confidently say, on the whole record, that

the constitutional error was harmless beyond a reasonable doubt.’”

Id. ¶ 162 (emphasis added) (footnote omitted) (quoting State v.

Tillman, 750 P.2d 546, 555 (Utah 1987), a case also involving a

prosecutor’s remark on the defendant’s choice to remain silent).

Nor does our own precedent simplify the issue. In State v.

King, 2010 UT App 396, 248 P.3d 984, we required the defendant to

shoulder the burden of establishing prejudice from a prosecutor’s

misconduct because the defendant had not objected to the

prosecutor’s remarks at trial, even though Ross itself involved a

similar preservation problem. Id. ¶ 26. In State v. Koslov, 2012 UT

(continued...)

20090643‐CA 26 2013 UT App 142

State v. Wright

¶42 “In reviewing whether the jury was influenced by the

[prosecutor’s] statement, we consider the circumstances of the case

as a whole.” State v. Koslov, 2012 UT App 114, ¶ 43, 276 P.3d 1207

(citation and internal quotation marks omitted). Wright’s claim on

appeal that the prosecutor committed reversible misconduct is

based on an argument that all five of the contested statements were

improper. Yet, we have concluded that all but one statement

amounted to a fair reply to defense counsel’s own remarks. The

prosecutor’s improper remark was thus only a single sentence

during a closing argument and rebuttal that fills fifteen transcript

pages of otherwise appropriate remarks. But see Tosh, 91 P.3d at

1210–13 (concluding that the prosecutor’s plea to the jury to protect

the victim from further sexual abuse by her father was “intentional

and not done in good faith” when the closing statement also

included a suggestion that the defendant would essentially “‘rape

[the victim] again’” if his version of the events were believed and

a statement that implied that the burden of proof had shifted to the

defendant). And although the misconduct occurred at the close of

6. (...continued)

App 114, 276 P.3d 1207, on the other hand, we acknowledged the

harmless beyond a reasonable doubt standard discussed in Ross

and assumed for purposes of appeal that the burden shifted even

where the defendant did not preserve the issue in the trial court.

2012 UT App 114, ¶ 42 n.9.

In our decision here, in deference to the language of Ross, we

take Koslov’s approach, assuming that the harmless beyond a

reasonable doubt standard applies, even though the challenge to

the error was unpreserved and does not involve a violation of a

fundamental constitutional right, on the basis that “if the State can

show that the error was harmless beyond a reasonable doubt,

Defendant would be unable to establish that the error was

prejudicial” enough to make out a showing of plain error or

ineffective assistance of counsel, in any event. Id. (citation and

internal quotation marks omitted). The questions of when burden‐

shifting occurs in a prosecutorial misconduct case and the

applicable standard for showing harmlessness if it does, however,

remain unsettled and should be addressed in an appropriate case.

20090643‐CA 27 2013 UT App 142

State v. Wright

the State’s rebuttal, when Wright had no opportunity to respond,

the court immediately reminded the jury of the importance of the

jury instructions, particularly emphasizing the fact that “lawyers

are advocates and they do represent their clients. And they are

trying to persuade you of their views of the case, what they

advocate. What they tell you, as was just done in opening and

closing, is not evidence.” The court also reiterated that its other

instructions, which included an admonition that the jurors not

allow themselves “to be influenced by sentiment, conjecture,

sympathy, passion, prejudice, or public feeling,” are “all

important” and should be followed by the jury. In the absence of

any circumstances suggesting otherwise, courts presume that the

jury follows such instructions. State v. Menzies, 889 P.2d 393, 401

(Utah 1994). See also, e.g., Carrasco v. Horel, No. C 07‐5666 MMC

(PR), 2011 WL 6181447, at *10 (N.D. Cal. Dec. 13, 2011) (concluding

that although the prosecutor’s statement that the jury has “‘to stand

up to these gangs’” “urged the jury to convict for reasons unrelated

to [the defendant]’s guilt or innocence,” it was not prejudicial

because it was an isolated remark in a “lengthy and otherwise

proper closing argument,” the jury was instructed not to consider

the attorneys’ arguments as evidence, and the other evidence of the

defendant’s guilt was strong); People v. Vigil, No. C037810, 2003 WL

1985221, at *9 (Cal. Ct. App. Apr. 30, 2003) (concluding that the

defendant was not prejudiced by prosecutor’s plea for the jurors to

“‘protect [the victim] in your verdicts. . . . [a]nd . . . tell [defendant]

it’s over. You are not going to hurt this child anymore’” because the

jury was instructed to base its rulings on the facts, not “‘sentiment,

conjecture, sympathy, passion, prejudice, public opinion, or public

feeling’” (first and last alteration in original)).

¶43 Accordingly, we are persuaded that the prosecutor’s

isolated statement to the jury was harmless beyond a reasonable

doubt. Wright’s prosecutorial misconduct claim therefore fails.

IV. Cumulative Error

¶44 Wright contends that even if the errors by the court and

counsel were individually harmless, they cumulatively require

reversal of his conviction. “Under the cumulative error doctrine,

20090643‐CA 28 2013 UT App 142

State v. Wright

[appellate courts] will reverse only if the cumulative effect of the

several errors undermines our confidence . . . that a fair trial was

had.” State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) (omission in

original) (citation and internal quotation marks omitted). “In

assessing a claim of cumulative error, we consider all the identified

errors, as well as any errors we assume may have occurred.” Id. But

“[i]f the claims are found on appeal to not constitute error, or the

errors are found to be so minor as to result in no harm, the doctrine

will not be applied.” State v. Gonzales, 2005 UT 72, ¶ 74, 125 P.3d

878 (declining to apply the cumulative error doctrine where the

claims on appeal did not constitute error or were harmless); State

v. Kohl, 2000 UT 35, ¶ 25, 999 P.2d 7 (determining that there was no

cumulative error where the defendant’s claims either did not

amount to error or were so minor that they did not result in harm);

see also State v. Colwell, 2000 UT 8, ¶ 44, 994 P.2d 177 (stating that

because it had determined that all of the claimed errors had been

properly cured at trial and were therefore not harmful to the

defense, “the cumulative errors d[id] not undermine [the court’s]

confidence that the defendant [had] received a fair trial”).

¶45 We have rejected each of Wright’s numerous claims of error,

concluding that either no error occurred or any error was harmless.

Our assessment does not change when we view the one error and

the one presumed error (the detective’s anecdotal evidence of the

incidence of late reporting and the prosecutor’s statement on

rebuttal) in conjunction with one another. The errors were

relatively minor in the context of the trial as a whole and do not

take on significance when considered together. Accordingly, we do

not find Wright’s cumulative error argument persuasive.

CONCLUSION

¶46 The district court correctly determined that Wright did not

receive ineffective assistance of counsel when his trial attorney

legitimately decided to pursue a mistake defense rather than one

based on fabrication and commensurately limited the evidence and

witnesses he presented. Although we concluded that the

prosecutor’s final remark in closing argument was error and we

20090643‐CA 29 2013 UT App 142

State v. Wright

assumed, without deciding, that the admission of Detective

Faulkner’s testimony on the percentage of cases which involved

delayed reporting was error, neither was sufficiently prejudicial to

require reversal, whether considered alone or together.

Accordingly, we affirm Wright’s conviction for aggravated sexual

abuse of a child.

20090643‐CA 30 2013 UT App 142