State v. Sellers, 2011 UT App 38

Sellers is an adult friend who lived with Child’s family and treated as a son; he frequently slept in Child’s room after drinking, though not living there at night in question.
On May 29–30, 2007, Sellers became intoxicated at a party, later woke with urine on his clothing, and entered Child’s bed where Child woke to his hand in her underwear and finger in her vagina.
Mother confronted Sellers; a partially empty vodka bottle was found hidden in Child’s room days later; Child reported the incident to police leading to charges of aggravated sexual abuse of a child.
The State had to prove two intent elements for aggravated sexual abuse of a child: a general intent to touch and a specific intent to cause pain or arouse/ gratify sexual desires; the trial court instructed the voluntary intoxication defense as applying only to the specific intent element.
Sellers requested a voluntary intoxication instruction and the court gave one but it did not clearly instruct that the State must disprove the defense beyond a reasonable doubt; defense counsel did not object or seek a corrected instruction, and the jury convicted.
The court remanded for a new trial after reversing due to the defective voluntary intoxication instruction; other evidentiary issues were discussed for potential impact on retrial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Burden-shifting in voluntary intoxication instruction	Sellers argues the instruction omits that State must disprove beyond reasonable doubt.	State contends the instruction, read with the overall charge, conveys the burden.	Reversed; improper burden instruction requires new trial.
Ineffective assistance for failure to object to instruction	Sellers claims counsel’s failure to object was deficient.	State cannot justify failure as strategic.	Counsel deficient; reversible error requiring remand.
Admissibility of Detective Bell-Morley’s intoxication opinion (Rule 704/702)	Detective offered improper opinion on Sellers’s intoxication.	Opinion testified lay, not expert; permissible if based on perception.	Testimony improperly encroached; limit on remand.
Sellers’ interrogation statements about Child’s veracity	Statements misused to bolster Child’s credibility.	Interrogation context outside trial; admissibility depends on evidentiary rules.	Trial court must decide admissibility under rules on remand.
Prior bad acts evidence	Evidence admitted despite stipulation to exclude.	Moot for remand; issues preserved for retrial review.	Moot after reversal; remand to address evidentiary rulings.

State v. Verde, 770 P.2d 116 (Utah 1989) (plain error standard applied to unpreserved claims)
State v. Garcia, 18 P.3d 1123 (Utah 2001) (affirmative defense burden shifting; instruction must disclose State disproves defense beyond a reasonable doubt)
State v. Knoll, 712 P.2d 211 (Utah 1985) (allocation of burden for affirmative defenses; minimal showing suffices for instruction)
State v. Torres, 619 P.2d 694 (Utah 1980) (state must prove elements beyond a reasonable doubt; burden on State for affirmative defense)
State v. Moritzsky, 771 P.2d 688 (Utah Ct.App.1989) (defendant need not prove affirmative defense by preponderance; initial basis enough)
State v. Geukgeuzian, 86 P.3d 742 (Utah 2004) (invited error and review of ineffective assistance on remand)
State v. Anderson, 929 P.2d 1107 (Utah 1996) (instructional error review when defendant fails to object)
State v. Low, 192 P.3d 867 (Utah 2008) (affirmative defense burden; reasonable basis required for instruction)
State v. Padilla, 776 P.2d 1329 (Utah 1989) (reasonable basis in evidence for affirmative defense)
State v. Lopez, 95 Wash.App. 842, 980 P.2d 224 (1990) (investigative interrogation technique may be probative)