State v. Roberts
438 P.3d 885
Utah Ct. App.2019Background
- Victim (adoptive sister and cousin of Chad Roberts) testified that, when she was about seven, Roberts (mid‑20s) lay behind her in bed repeatedly touching her vagina through her underwear for about 30 minutes; she did not report it at the time and disclosed the conduct nearly ten years later.
- After Victim’s later disclosure, police interviewed Roberts; he admitted cuddling with Victim and Sister and said any touching could have been accidental, denying sexual intent or gratification.
- At trial the defense pursued a lack‑of‑sexual‑intent theory rather than directly attacking Victim’s credibility; Roberts testified and conceded cuddling but denied intentional sexual contact.
- During trial the prosecutor cross‑examined Mother about a DCFS investigation (Mother denied recall and being interviewed); the line was cut off on relevance grounds after an objection.
- In closing the prosecutor twice described Roberts’s penis as being “pressed up against” Victim’s buttocks; the court sustained an objection and instructed the jury that counsel’s statements are not evidence and there was no direct evidence of relative body positions.
- The jury convicted Roberts of aggravated sexual abuse of a child; Roberts appealed raising prosecutorial‑misconduct and ineffective‑assistance claims and sought a Rule 23B remand to develop additional ineffectiveness evidence.
Issues
| Issue | Roberts' Argument | State's Argument | Held |
|---|---|---|---|
| Prosecutor’s closing remarks ("penis pressed against" language) | Remarks were improper and required mistrial or a limiting instruction; counsel ineffective for not seeking those remedies | Remarks were reasonable inferences from evidence; court cured by sustaining objection and instructing jury; counsel reasonably declined further remedies | No plain error; counsel not ineffective—trial court’s rulings and instructions were adequate and counsel had tactical reasons not to seek mistrial/instruction |
| Prosecutor’s cross‑examination of Mother about DCFS inquiry | Questioning introduced prejudicial, inadmissible evidence; counsel ineffective for not objecting sooner/striking testimony | The line was terminated on relevance; Roberts cannot show prejudice from the brief testimony | No preserved plain‑error review; Roberts failed to show prejudice for ineffective‑assistance claim, so reversal not required |
| Failure to seek bill of particulars (time/date specificity) | Counsel ineffective for not demanding specific date/time to narrow State’s proof | Record contains no indication State had more specific information; such a motion likely futile | Counsel not ineffective for failing to file a futile motion; no remand warranted |
| Failure to attack Victim’s credibility / request for Rule 23B remand | Counsel may have failed to investigate medical records, RAD, or call witnesses (Sister, Brother, Fiancée); counsel’s closing vouched for Victim | Counsel reasonably chose a non‑confrontational strategy focused on lack of sexual intent given Roberts’ admissions and Victim’s emotional testimony | No remand; chosen defense strategy was plausible and not constitutionally deficient, so ineffective‑assistance claims fail |
Key Cases Cited
- State v. Hummel, 393 P.3d 314 (Utah 2017) (unpreserved prosecutorial‑misconduct claims must be reviewed under preservation exceptions and ineffective‑assistance doctrine)
- State v. Griffin, 384 P.3d 186 (Utah 2016) (standard for reviewing ineffective assistance; remand unnecessary where record shows counsel was not deficient)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑pronged ineffective‑assistance test: deficient performance and prejudice)
- State v. Nelson, 355 P.3d 1031 (Utah 2015) (strong presumption of competence; tactical choices presumed reasonable)
- State v. Dibello, 780 P.2d 1221 (Utah 1989) (prosecutors afforded considerable latitude in closing argument)