District Court, Provo Department The Honorable Thomas Low No.
Michael D. Esplin, Attorney for Appellant
D. Reyes and Christopher D. Ballard, Attorneys for Appellee
Jill M. Pohlman authored this Opinion, in which Judges
Michele M. Christiansen Forster and Diana Hagen concurred.
Chad Jacob Roberts appeals his conviction for aggravated
sexual abuse of a child and also seeks a remand under rule
23B of the Utah Rules of Appellate Procedure. We affirm
Roberts's conviction and deny his motion for a rule 23B
Abuse, Disclosure, and Investigation
Victim is the adoptive sister, and natural cousin, of
Roberts. After their biological father relinquished his
parental rights, Victim and her two older siblings (Sister
and Brother) were adopted by Roberts's mother
(Mother). Roberts would frequently visit the house
where Mother and Victim lived and would "cuddle"
with Victim and Sister and read them books at bedtime. Often,
Roberts would "fall asleep with them in the bed."
Once, when Victim was about seven years old and Roberts was
in his mid-twenties, Roberts lay in Victim's bed and
touched her vagina "skin-to-skin." He "cuddled
up against [her] . . . with his body pressed against [her]
back" and then "put his hand down [her]
underwear." Roberts "patted" Victim's
vagina "a few times" and then "just rested
[his hand] there" before resuming patting. This pattern
continued for about thirty minutes. Eventually, Victim
"got out of bed and went in the bathroom" because
she "did not like what was happening." Thinking
that Roberts had fallen asleep, Victim crawled back into her
bed. Again, Roberts "cuddled up against [her] and put
his hand down [her] pants." He did not say anything to
Victim, or try to kiss or digitally penetrate her.
Because she "still loved and cared about" Roberts
and was "happy living at" Mother's house,
Victim "decided [she] was never going to tell
anyone" what had happened that night. Then, nearly ten
years later, she disclosed the touching to Brother and his
fiancée (Fiancée). Victim had moved out of
Mother's house and was living with her father, who
testified that, prior to the move, Victim "was
struggling" and had received treatment for
"self-harming behaviors." While Victim was visiting
Mother's house one day, she and Brother started drinking
alcohol mixed with an energy drink. Brother and
Fiancée mentioned to Victim that they planned on
"getting a place" with Roberts. This made Victim
fear that Roberts would abuse Fiancée. Victim then
became "very drunk," and Brother and Fiancée
took her to the mall to "walk it off." While there,
Victim became "hysterical," "[fell] over in
the parking lot," and repeated "over and over"
that Roberts had raped her. Once she calmed down, Victim
explained to Brother and Fiancée that Roberts
"used to come lay in bed with her and touch her at
night," but she did not offer any more details.
After this disclosure and a report made by Brother, police
interviewed Roberts. Roberts admitted that he would sleep in
Victim and Sister's bunkbed and "cuddle with
them," but he denied ever touching Victim
inappropriately. The police investigator asked whether on the
night in question he could have touched Victim's vagina
"accidentally," and Roberts responded,
"Possibly," but denied that it would have been for
At trial, the defense called Mother, who testified that
Roberts and Victim had a "[l]oving, caring"
relationship. She also testified that, although Roberts would
cuddle with Victim and Sister, their room was not far from
hers and their doors were "[a]lways open." On
cross-examination, the prosecutor asked Mother whether she
was ever interviewed by the Division of Child and Family
Services (DCFS) "about [her] being emotionally abusive
to" Victim. After Mother testified that she was aware of
an accusation of emotional abuse but was not interviewed by
DCFS, defense counsel objected to the line of questioning on
relevance grounds. The trial court sustained the objection,
and the prosecutor moved on to another topic.
Later, during closing argument, the prosecutor twice stated
that Roberts's penis was "pressed up against"
Victim's buttocks as he lay with her. The second time,
after the prosecutor said that Roberts was "spooning
with his front pushed against [Victim's] back with his
penis around her buttocks," defense counsel objected.
The trial court sustained the objection and explained to the
jury that there was no evidence in the record of the
"relative positions" of Roberts and Victim. The
prosecutor then told the jury that it could use its
"common sense understanding" to infer the relative
positions of Roberts and Victim as they lay in the bed.
Defense counsel did not renew the objection or ask the court
to take any further action.
The defense's strategy at trial was to focus on
Roberts's lack of sexual intent rather than attack the
credibility of Victim, who had testified emotionally about
the abuse. Roberts, who testified at trial, admitted that he
cuddled with Victim and Sister and that he told police that
he may have touched Victim's vagina accidentally, but he
denied touching her with any sexual intent. In his closing
argument, defense counsel stated that he did not think Victim
was lying, and that the jury could believe both Victim and
Roberts and still find Roberts not guilty. Counsel emphasized
the isolated nature of the incident and argued that, because
he did not have "the specific intent to arouse or
gratify somebody's sexual desire," Roberts was not
At the close of evidence, the State asked the trial court
"to expand [by one year] the time frame that was
originally pled" in the information. Without hearing
"much of an opposition" to such an amendment, the
trial court granted the request. After being given
instructions, including an instruction that counsel's
"statements and arguments are not evidence," the
jury retired to deliberate. When it returned, the jury
convicted Roberts of aggravated sexual abuse of a child.
AND STANDARDS OF REVIEW
Roberts raises several issues on appeal that can be separated
into three categories. First, Roberts contends that the
prosecutor made improper statements during closing argument
that warranted a mistrial or a limiting instruction. Defense
counsel did not request these remedies at trial, and Roberts
asks us to review this unpreserved issue under the doctrines
of plain error and ineffective assistance of
counsel. See State v. Johnson, 2017 UT 76,
¶ 19, 416 P.3d 443 (explaining that plain error and
ineffective assistance of counsel are exceptions to the
preservation requirement). A trial court plainly errs when it
commits obvious, prejudicial error. See State v.
Griffin, 2016 UT 33');">2016 UT 33, ¶ 17, 384 P.3d 186. "An
ineffective assistance of counsel claim raised for the first
time on appeal presents a question of law." Id.
¶ 16 (quotation simplified).
Second, Roberts contends that the prosecutor's inquiry of
Mother about a DCFS investigation constituted prosecutorial
misconduct and that defense counsel was constitutionally
ineffective for not objecting sooner and moving to strike the