State v. Popp
453 P.3d 657
Utah Ct. App.2019Background
- Between 2007–2015 Justin Popp lived with Mother and her daughter F.H.; in 2017 F.H. (then 12) disclosed two childhood incidents in which Popp allegedly made her perform oral sex (a "frosting/spoon" episode and a "bottle/cleaning" episode).
- The State recorded a Children’s Justice Center (CJC) interview of F.H.; Investigator conducted it and Detective observed from an adjacent room; Popp was charged with two counts of sodomy on a child and the CJC video was played to the jury.
- Popp’s counsel disclosed one expert timely but belatedly listed three nonexpert defense witnesses the week before trial; the court permitted them only as rebuttal if the State opened the door to behavioral-change testimony.
- Detective testified about his efforts to interview Popp and that Popp declined a pre-arrest interview on counsel’s advice; Popp did not object at trial to admission of the CJC video on reliability grounds and approved jury instructions on the record.
- The jury convicted Popp on both counts and he was sentenced to concurrent 25‑years‑to‑life terms; Popp appealed claiming instructional error, improper admission of the CJC interview, improper use of his pre‑arrest silence, and ineffective assistance of counsel.
- The appellate court affirmed on all preserved and appellate‑record claims, but granted a limited Rule 23B remand to develop the record on whether counsel failed to investigate/call three potential defense witnesses.
Issues
| Issue | Popp's Argument | State's Argument | Held |
|---|---|---|---|
| Jury instructions and verdict form adequacy | Instructions omitted specific dates and did not identify which act corresponded to which count | Counsel affirmatively approved instructions; any error invited and not subject to plain error review | Invited‑error doctrine bars plain error; ineffective assistance claim fails (no deficient performance or no prejudice) |
| Admissibility of CJC recorded interview under Rule 15.5 | Court erred by not expressly assessing reliability under Rule 15.5 before playing the video | Popp withdrew confrontation objection and invited any error; trial testimony corroborated video | No reversible plain error; ineffective assistance claim rejected on prejudice grounds (video reliable on record; live testimony corroborated it) |
| Detective testimony that Popp declined pre‑arrest interview | Testimony improperly used to suggest consciousness of guilt; violated right to remain silent | Testimony showed investigation effort and rebutted defense theory that police failed to investigate; State did not exploit silence in closing | No plain error; counsel’s failure to object or seek curative instruction not ineffective (objection likely futile; tactic to avoid emphasizing silence reasonable) |
| Rule 23B remand for ineffective assistance (failure to investigate/call witnesses) | Counsel failed to investigate or call three witnesses who would have supported defense (reputation, childcare routines, Mother’s motive) | Witnesses’ testimony would not have changed result; no reasonable probability of different outcome | Remand granted under Rule 23B limited to developing whether Popp timely identified witnesses, counsel investigated/contacted them, tactical reasons for not calling them, and what their trial testimony would have been |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective assistance test: deficient performance and prejudice)
- State v. Geukgeuzian, 86 P.3d 742 (Utah 2004) (invited‑error doctrine when counsel affirmatively approves jury instructions)
- State v. McNeil, 365 P.3d 699 (Utah 2016) (limits on extending invited‑error doctrine to admission of evidence; plain‑error framework)
- State v. Griffin, 441 P.3d 1166 (Utah 2015) (Rule 23B remand requirements when appellate record is silent on counsel conduct)
- State v. Johnson, 416 P.3d 443 (Utah 2017) (plain error test: error, obviousness, and harmfulness)