State v. Dever, 508 P.3d 158

Background

Dever dated the victim’s mother and was a father-figure to the victim (Faith); girls frequently stayed overnight at Dever’s mother’s two‑bedroom apartment where the children slept on a floor mattress.
After a weekend in May 2015, six‑year‑old Faith told her mother Dever woke her, pulled down her underwear, and "licked [her] butt" (Faith used "butt" to refer to her vagina); mother reported it and police collected clothing from the washing machine.
At a Children’s Justice Center (CJC) interview Faith repeated the allegation; forensic testing later found human alpha‑amylase on four pairs of underwear and one sample contained a small amount of male DNA that did not exclude Dever.
Dever was charged in 2017 with sodomy upon a child; at trial Faith testified to the abuse but was sometimes inconsistent on timing and number of incidents; Dever testified and denied the allegations, providing an alibi-like account with corroborating witnesses (his mother and sister).
The district court denied Dever’s motion for a directed verdict (finding Faith’s testimony plus corroboration sufficient) but gave a State‑proposed jury instruction (Instruction 19) stating a single witness’s testimony, if believed beyond a reasonable doubt, can alone support conviction; the jury convicted.
On appeal the court affirmed the denial of the directed verdict (Faith’s testimony was not inherently improbable and had corroboration) but held Instruction 19 impermissibly singled out a witness’s testimony and prejudiced Dever, reversed the conviction, and remanded for a new trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency / inherent improbability of victim’s testimony	State: testimony and corroboration (DNA, behavior changes) sufficient to submit to jury	Dever: Faith’s testimony was inconsistent, contained patently false statements, and lacked corroboration so no reasonable jury could convict	Court: Affirmed denial of directed verdict — testimony not inherently improbable; some corroboration existed (male DNA not excluding Dever; behavior changes)
Jury instruction singling out single‑witness testimony (Instruction 19)	State: instruction correctly states law that a witness’s testimony alone can support conviction if believed beyond a reasonable doubt	Dever: instruction improperly emphasized one witness and commented on evidence/credibility, risking that jury would accord undue weight to victim’s testimony	Court: Reversed — Instruction 19 was improper comment on evidence and likely prejudiced defendant given the credibility‑centric case; remand for new trial

Key Cases Cited

State v. Jok, 493 P.3d 665 (Utah 2021) (articulates inherent‑improbability framework and non‑mechanical test for disregarding witness testimony)
State v. Prater, 392 P.3d 398 (Utah 2017) (discusses limited circumstances to disregard testimony as inherently improbable)
State v. Robbins, 210 P.3d 288 (Utah 2009) (explains that inconsistencies alone generally do not render child testimony inherently improbable)
Gutierrez v. State, 177 So.3d 226 (Fla. 2015) (rejects "no‑corroboration" jury instruction as improper comment on evidence and reversible error)
State v. Salgado, 427 P.3d 1228 (Utah Ct. App. 2018) (reiterates prohibition on judicial comment on evidence via jury instructions)
State v. Jeffs, 243 P.3d 1250 (Utah 2010) (standard for reviewing jury instruction error and prejudice)