STATE OF UTAH, Appellee, v. CHARLES PHILIP GRANERE, Appellant.
No. 20190593-CA
THE UTAH COURT OF APPEALS
Filed January 5, 2024
2024 UT App
Third District Court, Salt Lake Department. The Honorable Linda M. Jones. No. 161909765. Ann M. Taliaferro and Kristin Wilson, Attorneys for Appellant.
ORME, Judge:
¶1 Charles Philip Granere appeals his convictions of rape of a child, object rape of a child, and aggravated sexual abuse of a child. He argues that his trial counsel (Counsel) was constitutionally ineffective in several respects, most notably for failing to request that the jury be properly instructed on unanimity; that the trial court erred in excluding evidence supporting his theory that the child victim, Beth,1 had been sexually abused by another; and that insufficient evidence supported his convictions because Beth‘s testimony was inherently improbable. We agree that Counsel was ineffective for failing to request a unanimity instruction concerning the charges for rape of a child and aggravated sexual abuse of a child, and we therefore reverse those convictions and remand for further proceedings. But because Granere‘s conviction of object rape of a child withstands all his challenges on appeal, we affirm that conviction.
BACKGROUND2
¶2 In September 2013, Granere, then a 34-year-old man, began dating a woman (Mother). Their relationship soon turned serious, and Mother introduced Granere to her three children, including her ten-year-old daughter, Beth.
¶3 Thereafter, because Granere “wanted to get to know” Beth and wanted Beth and his daughter, who was the same age as Beth, to “bond,” Mother dropped Beth off at Granere‘s apartment in Salt Lake City for a sleepover on three or four occasions. But whenever Mother dropped Beth off for these sleepovers, Granere‘s daughter was not there and Granere told Mother that his daughter either had not yet arrived or had already left. Mother later testified that at the time Granere held these sleepovers, she never observed signs of trauma in Beth or behaviors such as excessive bathing or cleaning up after returning home from Granere‘s apartment. She also did not detect any odors indicative of sexual activity on Beth or notice any suspicious stains on Beth‘s clothing while doing laundry. Beth appeared to be upset to Mother only once after visiting Granere, the cause of which was attributed to a video game console, but Mother could not remember the specifics of that incident.
¶4 Mother also testified that Granere twice took her and Beth to his cabin in the mountains. Mother could not recall whether Beth ever accompanied Granere to his cabin alone, but she remembered that Granere once took Beth snowmobiling near his cabin.
¶5 Mother and Granere ended their relationship in late March or early April 2014. Nevertheless, Granere continued to have occasional contact with Mother and Beth. This contact came to an end in October 2015 following a cellphone-related disagreement.
¶6 Beth first disclosed to a friend that she had been sexually abused after the friend told Beth that she (the friend) had been sexually abused. Beth realized that what the friend described “kind of sounds like things someone did to me,” and she then confided to the friend that she had also been sexually abused. In March 2016, Beth, now twelve years old, disclosed the sexual abuse to a school counselor, naming Granere as the abuser. The counselor reported the sexual abuse to a school administrator and to law enforcement. Mother was also called to the school, where Beth told her that Granere “had raped her.” Mother took Beth home and also contacted law enforcement.
¶7 Beth was soon interviewed at the Children‘s Justice Center (the CJC). Among other instances of abuse, Beth told the interviewers that Granere once told her to get in the bathtub and to insert a “small and grey” object into her vagina. When Beth refused,
¶8 The following month, a sexual assault nurse examiner (Nurse) examined and interviewed Beth. Nurse observed that Beth had “two full transections that were healed [on] her hymen.” Nurse later testified this type of injury is caused by “[p]enetrating trauma,” possibly involving a penis, an object, or fingers; but—based on the exam—Nurse could not establish who caused those injuries.
¶9 The State charged Granere with rape of a child, object rape of a child, and aggravated sexual abuse of a child—all first-degree felonies.3 In March 2017, Granere filed a pretrial motion under
¶10 Regarding
¶11 The case proceeded to a four-day jury trial in March 2019. As part of its case-in-chief, the State called, among others, Beth, Mother, and Nurse to testify. Mother‘s and Nurse‘s testimonies are, in relevant part, recounted above. Beth testified at trial that Granere sexually abused her at his apartment and at his cabin, and that the abuse occurred “many times.” She stated that her first memory of abuse took place at Granere‘s apartment. He had challenged her to a drinking contest, and as she drank her bottle of blue Gatorade, she began feeling “weird” and “uneasy.” She next remembered being in a bathtub with Granere sitting on the toilet beside her. Granere handed her a “little silver object” and instructed her to place it in her vagina. Beth did not want to, so Granere took her hand in his and directed it to the top of her vagina. Beth recalled him “rubbing his hand and my hand and putting it on like the top of my vagina,” “inside the skin folds,” and stating, “[H]ere, doesn‘t that feel better?” He then pushed the object further into her vagina. Beth felt a “stinging” and “burning” sensation and began to bleed. Beth testified that Granere next took her into his bedroom, sat her on his bed, and inserted his fingers into her vagina, causing her to bleed even further, and rubbed “the top part of [her] vagina.” He also ran his hands up and down her waist, touching her breasts and buttocks. Beth stated that Granere also
¶12 Beth testified that another time in his apartment, Granere massaged her with baby oil and then offered her a drink that caused her to feel sleepy. She woke up to Granere on top of her with his penis in her vagina, causing her to feel “a burning sensation.” Beth stated that was the most vivid memory she had of Granere inserting his penis into her vagina, but she then proceeded to recount another instance when she had been asleep in the cabin and Granere woke her up and told her, “I stuck it in all the way.” When asked, “How many times do you remember this happening . . . ?,” Beth replied, “I know it‘s a lot more than seven.” And when asked what they would do at the cabin, Beth replied, “He would rape me.” Beth also described an instance at the cabin when she was lying on the ground and Granere‘s “head was in between [her] legs,” shortly after which Granere masturbated in front of her.
¶13 As part of his cross-examination of Beth, Counsel played the 43-minute recording of Beth‘s entire CJC interview with the purpose of “count[ing] how many times she giggles, or laughs, or finds it funny.” Counsel paused the interview over 50 times to ask Beth whether she had laughed or looked at the camera at that moment. Beth acknowledged repeatedly doing so throughout the interview. Beth also stated on cross-examination that she did not report the sexual abuse at the time because Granere repeatedly told her that “this is what fathers and daughters do” and she believed “that was a daughter and father relationship.”
¶14 Granere called five witnesses to testify in his defense. He called his father and a detective to demonstrate that he could not have taken Beth to the cabin during the winter of 2013–2014. Granere‘s father testified that in early November 2013, he “winterize[d]” the cabin, which included shutting off the water, draining the water heater and the toilets, and shutting off the gas and the furnace. His father further stated that the cabin remained in that uninhabitable state until he opened it up by reversing the entire process during the first week of May 2014. And his father explained that if they wished to use the cabin during the winter, they would have to reverse all the actions he took to “winterize” the cabin, which “was an all day process to get it warm enough so that you could tolerate it.”
¶15 The detective testified that from mid-November 2013 until mid-March 2014, Granere was serving a house arrest sentence in an unrelated matter, which required him to wear a GPS ankle monitor that tracked his location. He stated that the ankle monitor would have alerted authorities if Granere went to the cabin, and he had no record of any such violation. But the detective also stated that so long as it was during the time Granere was supposed to be at work, and so long as Granere was back home by curfew, it would have been possible for Granere to spend the day at the cabin without the ankle monitor alerting authorities.
¶16 Granere‘s wife, whom he married after he and Mother ended their relationship, testified that Granere was incapable of being “on top” because “he can‘t hold himself up on his knees.” And contradicting portions of Beth‘s testimony suggesting otherwise, Granere‘s daughter testified that he had never sexually abused her (the daughter). Lastly, Granere testified on his own behalf. He denied sexually abusing Beth and denied that Beth ever spent the night at his apartment.
¶17 The jury found Granere guilty of rape of a child, object rape of a child, and aggravated sexual abuse of a child. Granere, still represented by Counsel, then moved to arrest judgment, arguing that the State‘s evidence was insufficient to support his convictions because Beth‘s testimony was inherently improbable. Following a hearing, the trial court denied the motion. Next, through new counsel, Granere moved for a new trial, arguing that he should have been allowed to present his
¶18 Granere appeals.
ISSUES AND STANDARDS OF REVIEW
¶19 Granere raises several issues on appeal. First, he argues that his convictions should be vacated because the jury instructions did not require unanimity on each count. Ordinarily, “a challenge to a jury instruction as incorrectly stating the law presents a question of law, which we review for correctness.” State v. Gollaher, 2020 UT App 131, ¶ 20, 474 P.3d 1018 (quotation simplified), cert. denied, 481 P.3d 1040 (Utah 2021). But because we ultimately hold that this issue was not preserved, see infra Part I.A.1, we review this issue through the lens of ineffective assistance of counsel. “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Elkface, 2023 UT App 24, ¶ 7, 527 P.3d 820 (quotation simplified), cert. denied, 534 P.3d 752 (Utah 2023).
¶20 Granere also argues that Counsel was ineffective in other respects, two of which he raised before the trial court in a motion for new trial. In reviewing those two claims, “[t]here is no reason . . . to depart from the standard of review set out in Strickland simply because the appeal was preceded by a motion for new trial.” State v. Templin, 805 P.2d 182, 185–86 (Utah 1990). Therefore, all of Granere‘s “ineffective assistance of counsel claims present a mixed question of fact and law.” Id. at 186 (citing Strickland v. Washington, 466 U.S. 668, 698 (1984)). We thus “review a trial court‘s application of the law to the facts for correctness and, if applicable, we review the court‘s findings of fact for clear error.” State v. Torres-Orellana, 2021 UT App 74, ¶ 26, 493 P.3d 711, cert. granted, 502 P.3d 268 (Utah 2021).
¶21 Granere next contends that the trial court erred in excluding evidence that Uncle had sexually abused Beth and was the cause of Beth‘s two hymenal transections. We review a trial court‘s decision to admit or exclude evidence under
¶22 Finally, Granere argues that the court erroneously denied his motion to arrest judgment because “[t]here was not sufficient evidence to support the verdicts under the inherent improbability standard.”5 “We review a district court‘s grant or denial of a motion . . . to arrest judgment for correctness.” State v. Miller, 2023 UT 3, ¶ 50, 527 P.3d 1087 (quotation simplified). We will “uphold a denial of the motion . . . to arrest judgment based on an insufficiency of the evidence claim, if some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt.” Id. (quotation simplified). In other words, we will “reverse the denial of a motion to arrest judgment only if the evidence, viewed in the light most favorable to the verdict, is so inconclusive or so inherently improbable as to an element of the crime that reasonable minds must have entertained a reasonable doubt as to that element.” Id. (quotation simplified).
ANALYSIS
I. Ineffective Assistance of Counsel
¶23 To prevail on a claim of ineffective assistance of counsel, a criminal defendant
¶24 Under the first element, defense counsel‘s actions amount to deficient performance if they fall “below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. But “[j]udicial scrutiny of counsel‘s performance” is “highly deferential” in that the defendant must overcome the “strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. Under that presumption, “even if an omission is inadvertent and not due to a purposeful strategy, relief is not automatic.” State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d 871 (quotation simplified). Instead, “even if a court concludes that counsel made an error, the ultimate question is always whether, considering all the circumstances, counsel‘s acts or omissions were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350.
¶25 To establish prejudice under the second element, “[t]he defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. In conducting this inquiry, “an appellate court should consider the totality of the evidence, taking into account such factors as whether the errors affect the entire evidentiary picture or have an isolated effect and how strongly the verdict is supported by the record.” Gregg v. State, 2012 UT 32, ¶ 21, 279 P.3d 396 (quotation simplified).
¶26 Granere argues that Counsel was ineffective for (1) failing to request a proper jury instruction on unanimity, (2) failing to seek exclusion of Beth‘s testimony as “unreliable and incompetent,” (3) playing Beth‘s CJC interview at trial, and (4) failing to object to alleged prosecutorial misconduct during closing argument.6 We address each argument in turn.
A. Unanimity Instruction
¶27 Granere first seeks reversal of his convictions on the ground that “the jury was not required to render a unanimous verdict.” Before we reach the merits of this argument, we must first determine whether this issue is preserved. And concluding that it was not preserved, we next proceed to review this issue for ineffective assistance of counsel.
1. Preservation
¶28 An appellate court “generally will not consider an issue unless it has been preserved for appeal.” Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828. “An issue is preserved for appeal when it has been presented to the district court in such a way that the court has an opportunity to rule on it.” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (quotation simplified). “To provide the court with this opportunity, the issue must be specifically raised by the party asserting error, in a timely manner, and must be supported by evidence and relevant legal authority.” Id. (quotation simplified).
¶30 In support of his argument, Granere cites Kell v. State, 2012 UT 25, 285 P.3d 1133, in which our Supreme Court rejected the State‘s argument that an issue was not preserved because the State, and not the appellant, was the party to raise the issue before the district court. Id. ¶¶ 10–12. In so ruling, the Court stated that “the two primary considerations underlying the preservation rule are judicial economy and fairness.” Id. ¶ 11 (quotation simplified). Concerning judicial economy, the Court noted that the district court in that case “not only had an opportunity to rule on the issue . . . , it did rule on it” after conducting “a thoroughgoing analysis of the” issue. Id. And regarding fairness, the Court noted that “[t]he State quite obviously had the opportunity to counter the argument in the district court.” Id. ¶ 12. Based on these considerations, the Court held “that the issue was properly preserved.” Id. The current case is distinguishable.
¶31 Here, unlike in Kell, the trial court did not conduct “a thoroughgoing analysis of the” issue before ruling. Id. ¶ 11. Instead of addressing the merits of the State‘s requested instruction—which Counsel did not oppose—the court side-stepped the issue by stating that “the instructions already adequately address those issues.” Neither the State nor Counsel offered pushback to this resolution of the motion. Furthermore, because Counsel did not oppose the requested instruction, the State did not have “the opportunity
Thus, where in Kell the judicial economy and fairness considerations weighed in the appellant‘s favor, they weigh in the State‘s favor here.
¶32 For these reasons, we hold that Granere‘s unanimity argument was not preserved. But because Granere alternatively argues that Counsel was constitutionally ineffective for failing to request a proper unanimity instruction, we proceed to address the unanimity argument through that lens.9
2. Merits of the Argument
¶33 The Utah Constitution provides that “[i]n criminal cases the verdict shall be unanimous.”
¶34 Here, the State charged Granere with one count each of rape of a child, object rape of a child, and aggravated sexual abuse of a child. The elements instructions included the general statutory definitions for each charge, see
¶35 At trial, only one allegation of object rape was presented to the jury.12 Beth testified that Granere gave her a blue Gatorade to drink that caused her to feel “weird” and “uneasy.” She then testified that Granere took her to the bathtub, placed a “little silver object” in her hand, and told her to insert it in her vagina. Because Beth did not want to do this, he took her hand in his, “rubb[ed] his hand and [her] hand, and put[] it” “inside the skin folds” of her vagina. He then pushed the object further into her vagina, causing Beth to feel a “stinging” and “burning” sensation and to bleed.13 Beth did not testify to any additional instances of abuse that would constitute object rape of a child.14 Accordingly, a more specific unanimity instruction was not required, and Counsel did not perform deficiently with respect to that charge.
¶36 But the jury did hear testimony of more than one alleged act that supported the rape of a child and the aggravated sexual abuse of a child charges. Concerning aggravated sexual abuse of a child,15 Beth testified that the first time Granere abused her, he took her from the bathtub and sat her on his bed. There, he inserted his fingers into her vagina, rubbed “the top part of [her] vagina,” and ran his hands up and down her waist, touching her breasts and buttocks. Additionally, in the CJC interview, the recording of which was entered into evidence, the jury heard Beth recount that Granere touched her breasts on other occasions. Lastly, depending on whether the jury interpreted “it” to mean the silver or grey object or Granere‘s hand, it is also possible that the act of “rubbing his hand and [her] hand and putting it on . . . the top of [her] vagina,” “inside the skin
¶37 Concerning the rape of a child conviction, Beth testified at trial that Granere raped her “many times.”16 And in the CJC interview that was played for the jury, Beth told interviewers that Granere would pin her down by her arms and place his penis in her vagina, which she estimated happened “[l]ike five, seven times.” The jury also heard Beth testify at trial regarding two specific instances that supported that charge. She testified that the instance she most vividly recalled occurred after Granere massaged her with baby oil and offered her another drink that caused her to feel sleepy. She stated that the next thing she remembered was waking up to Granere on top of her with his penis in her vagina, causing her to feel “a burning sensation.” Then, when asked specifically whether that was the instance of Granere inserting his penis into her vagina she remembered best, Beth responded that it was but then she stated that there was another instance she remembered that occurred at the cabin. She then proceeded to recount the time when Granere woke her up and told her, “I stuck it in all the way.”
¶38 Although the jury was generally instructed that its verdict must be unanimous, it was not instructed “that it must be unanimous as to the specific act underlying each count of conviction.” Alires, 2019 UT App 206, ¶ 12. Such an instruction was “critical to ensuring unanimity.” Id. ¶ 23. Otherwise, because more than one allegation was presented at trial supporting the rape of a child and aggravated sexual abuse of a child charges, “the jurors could have completely disagreed on which acts occurred or which acts were illegal, even if they all agreed that abuse had occurred at some point,” State v. Mottaghian, 2022 UT App 8, ¶ 56, 504 P.3d 773 (quotation simplified), cert. denied, 525 P.3d 1256 (Utah 2022), thereby effectively lowering the State‘s burden of proof at trial, see Alires, 2019 UT App 206, ¶ 25. And this court has repeatedly held that failure to request a proper unanimity instruction constitutes deficient performance. See, e.g., State v. Garcia-Lorenzo, 2022 UT App 101, ¶ 40, 517 P.3d 424, cert. granted, 525 P.3d 1263 (Utah 2022); Baugh, 2022 UT App 3, ¶ 19; Alires, 2019 UT App 206, ¶¶ 24–25.17 Thus, as to those two
convictions, Counsel performed deficiently by not requesting a proper unanimity instruction. But because the jury heard only one allegation constituting object rape of a child, a more detailed unanimity instruction than what was already provided was not required as to that charge. As previously noted, Counsel therefore did not perform deficiently, and Granere‘s claim of ineffective assistance with respect to his object rape of a child conviction fails.
¶39 But to prevail on a claim of ineffective assistance of counsel with regard to his convictions for rape of a child and aggravated sexual abuse of a child, Granere must also show prejudice.18 See Strickland v. Washington, 466 U.S. 668, 687 (1984). We hold that Granere has established prejudice as to these convictions.
¶40 Concerning the conviction for rape of a child, as discussed above, the jury heard evidence of two specific incidents supporting that charge, as well as claims that Granere raped Beth burden of proof, id. ¶ 25. But this court subsequently clarified that although the
statement by the prosecutor in Alires was ill-advised and probably made the problem worse[,] . . . the problem existed with or without the comment by the prosecutor: the jury needed to be instructed, either way, that it had to unanimously agree on the specific criminal act underlying each count of conviction.
State v. Garcia-Lorenzo, 2022 UT App 101, ¶ 38, 517 P.3d 424, cert. granted, 525 P.3d 1263 (Utah 2022).
“many times.” Additionally, the evidence supporting that conviction was limited to Beth‘s testimony,19 and therefore was “not so overwhelming that we can conclude that the jury must have unanimously agreed on [one] act—as opposed to [another] alleged act . . .—as the basis for its conviction” on that count. Baugh, 2022 UT App 3, ¶ 22. See Strickland, 466 U.S. at 696; Alires, 2019 UT App 206, ¶ 28. “It is therefore entirely possible that some (but not all) of the jurors convicted on [that count] based on the belief that the alleged [rape] occurred at the [cabin], while some other (but not all) jurors convicted based on the belief that the [rape] occurred at the apartment.” Baugh, 2022 UT App 3, ¶ 21. For these reasons, we hold that as to his conviction for rape of a child, Granere has demonstrated that he was prejudiced by Counsel‘s failure to request a more specific unanimity instruction.
¶41 The same is true for Granere‘s conviction for aggravated sexual abuse of a child. The evidence supporting this conviction “was not overwhelming,” the testimony “was conflicting . . . as to which acts occurred,” and “the surrounding circumstances were sufficiently ambiguous.” Alires, 2019 UT App 206, ¶¶ 28–29. Although there was physical evidence which might have supported Beth‘s allegation of digital penetration on the bed,20 there is also a notable discrepancy concerning Beth‘s account of the sexual abuse that occurred at that time. Namely, the jury heard
Beth state during the CJC interview that she did not remember what happened after Granere took her from the bathtub to the bed but that Granere told her the next day, “Oh didn‘t you remember? We had sex.” But at trial, Beth was able to recall what happened on the bed—testifying that Granere inserted his fingers into and rubbed her vagina, ran his hands up and down her waist, and touched her breasts and buttocks—she did not state that Granere raped her at that time. Furthermore, Beth‘s testimony was ambiguous as to whether Granere‘s hand touched her vagina while in the bathtub, and the evidence of the other times Granere allegedly touched her breasts is limited to her CJC interview; Beth made no such allegation at trial. For these reasons, we are persuaded that Granere was also prejudiced as to his conviction for aggravated sexual abuse of a child by reason of Counsel‘s failure to request a proper unanimity instruction.
¶42 The State argues that any prejudice Granere may have suffered due to the lack of a proper unanimity instruction was alleviated by the prosecutor‘s closing argument. Specifically, the State contends that during closing argument, the prosecutor “identified only . . . one act of rape as the basis of the child-rape count” and asked that the jury convict on the aggravated sexual assault of a child charge based only on the series of touches that occurred when Granere took Beth from the bathtub to the bed.21
by providing such guidance “in closing argument or elsewhere,” see State v. Garcia-Lorenzo, 2022 UT App 101, ¶ 49, 517 P.3d 424, cert. granted, 525 P.3d 1263 (Utah 2022), the State must do so by “clearly identif[ying] for the jury which factual circumstance formed the basis for [the] charge,” State v. Paule, 2021 UT App 120, ¶ 48, 502 P.3d 1217, cert. granted, 525 P.3d 1257 (Utah 2022). See Garcia-Lorenzo, 2022 UT App 101, ¶¶ 49, 52; Alires, 2019 UT App 206, ¶ 22. For example, in Paule, 2021 UT App 120, the State was able to cure the prejudice suffered by the lack of an adequate unanimity instruction when the prosecutor told the jury during opening argument “that the obstruction count was for when . . . Paule took that shotgun, and threw it off the balcony in order to hinder, delay, or prevent the investigation,” and during closing argument “the prosecutor reemphasized that the obstruction charge was for when Paule threw the gun over the balcony.” Id. ¶ 45 (quotation simplified). Such clarification did not occur here.
¶44 During closing argument, the prosecutor summarized the three relevant counts as follows: “Count one being rape of a child. Now, there what we‘re talking about is him putting his penis inside of her vagina. Count two, object rape of a child is him putting an object inside of [Beth‘s] vagina. Count three, him touching her breasts, buttocks, or vagina[.]” The prosecutor then proceeded to discuss the elements of each charge.
¶45 Regarding the rape of a child charge, the prosecutor generally explained that the State was required to prove that Granere “intentionally, knowingly, or recklessly had sexual intercourse with” Beth and stated, “[W]e‘ve heard [Beth] tell you what happened to her all of those years ago, and so it‘ll come down to credibility.” In arguing that the prosecutor “identified only one act of rape as the basis of the child-rape count” during closing argument, the State points to a portion of the prosecutor‘s argument in which he described the object rape Granere perpetrated on Beth in the bathtub. In that context, the prosecutor stated that following the object rape, Granere next brought Beth “into the bedroom, [laid] her on the bed, and then put[] his penis
inside of her.”22 But more is required than mere mention of a specific allegation supporting a charge at some point during closing argument. The State must “ma[ke] clear, in closing argument or elsewhere, which act went with each count.” Garcia-Lorenzo, 2022 UT App 101, ¶ 49. See Paule, 2021 UT App 120, ¶ 48. Here, the prosecutor did not tell the jury that it was limited to considering only that specific allegation of rape. Thus, the prosecutor‘s closing argument did not alleviate the prejudice as to that conviction.
¶46 Concerning the aggravated sexual abuse of a child charge, the prosecutor told the jury that an element of the charge involved touching “the anus, buttocks, or genitals of [Beth], even accomplished through the clothes, although we heard that it was skin and skin as he climbed on top of her and then rubbed up her body, touching her breasts and her buttocks and also put his fingers on her vagina.” Although this statement did reference the episode of touching that occurred on the bed and although it was made in the context of discussing the elements for that charge, the
statement likewise fell short because it did not “clearly identif[y]
¶47 In summary, because Granere has not shown that Counsel performed deficiently with regard to his conviction for object rape of a child, that claim of ineffective assistance of counsel fails. But he has established that that he received ineffective assistance related to his convictions for rape of a child and aggravated sexual abuse of a child. We therefore reverse those convictions and remand to the trial court for further proceedings, but we proceed to address Granere‘s remaining arguments on appeal as they relate to his conviction for object rape of a child.
B. Objection to Beth‘s Testimony as Unreliable and Incompetent
¶48 Granere argues that because “there were competency and reliability issues with [Beth‘s] allegations due to substantial memory issues and an inability to recall and articulate the alleged events,” her testimony was inadmissible under rules 602 and 403 of the Utah Rules of Evidence. Accordingly, he argues that Counsel was ineffective for failing to seek exclusion of Beth‘s testimony on those grounds. We disagree.
¶49 “Utah law imposes a very low bar for establishing the competency of a witness.” State v. Calliham, 2002 UT 87, ¶ 22, 57 P.3d 220. Under rule 601, “[e]very person is competent to be a witness unless [the Utah Rules of Evidence] provide otherwise.”
does not “have the opportunity and the capacity to perceive the events in question” may not testify. State v. Eldredge, 773 P.2d 29, 33 (Utah 1989).
¶50 Here, in support of his contention that Beth‘s inadequate memory rendered her testimony incompetent and unreliable, Granere points to Beth‘s CJC interview in which, he asserts, Beth “repeatedly said she didn‘t remember clearly and intimated that she was having ‘flashbacks.‘” For example, he points to “when first asked to describe one of the times from beginning to end, [Beth] responded she couldn‘t ‘really remember that much’ and speculated that Granere offered her a soda, it tasted like it had some kind of pill in it, she didn‘t know what it was, but she ‘can‘t remember everything.‘” Granere asserts that Beth “repeatedly reported not remembering, and [she] theorized she forgot because the pills would make her forget or knock her out.” And at one point, she told the interviewers, “I remember half of what happened. Holy crap. Why does that keep happening to me? Every time it‘s like a word or something, I remember something.” She also stated, “Now that I‘m older I understand more, and it‘s like coming back to (inaudible) memories.”
¶51 Granere contends that these “admitted memory gaps indicate that [Beth] lacked the capacity to ‘observe’ even assuming she had the ‘opportunity’ by being physically present.” Quoting Ladd v. Bowers Trucking, Inc., 2011 UT App 355, ¶ 8, 264 P.3d 752, Granere further asserts that Beth‘s “attempt to fill her memory gaps with speculation or claims of memories being ‘triggered’ long after the events ‘does not provide the required foundation to show that [she] had the opportunity or the capacity to observe at the time the event occurred, or that [she] is now able to recall whatever [she] may have observed at the time.‘” But the unique facts present in Ladd distinguish it from the current case.
¶52 In that case, the plaintiff was involved in three automobile accidents in quick succession, causing him to suffer “several substantial injuries including six brain contusions.” Id. ¶¶ 2–3.
Because of this, the plaintiff “had no memory of the accidents until four to six months later when he purportedly relived the accidents in a dream.” Id. ¶ 3. In the lawsuit for negligence that followed, the plaintiff described in a deposition “the details of his dream, explaining that his account of the
¶53 Here, unlike in Ladd, Beth did not testify concerning events that she did not remember. To the contrary, although Beth struggled to recount certain events during the CJC interview, she was able to recall other specific instances of abuse. For example, she told the interviewers of the instance of object rape Granere perpetrated against her in the bathtub. She also stated that Granere repeatedly pinned her down by her arms and raped her. There is also no indication that Beth‘s account of the abuse was based on a dream or other form of speculation—as was the case in Ladd. Rather, Granere‘s challenge to Beth‘s testimony seems to be based on the fact that she had some lapses in memory.
¶54 Our Supreme Court has expressly rejected rule 602 as a means of rendering a child sexual assault victim‘s testimony inadmissible for lapses in memory. See Eldredge, 773 P.2d at 33 (rejecting the argument that under rule 602, “testimony of a
witness must be excluded if the witness‘s memory of the subject matter of the testimony is less than complete“). See also R. Collin Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence 468 (2020–2021 ed.) (stating that “an incomplete memory should seldom provide a basis for holding the witness incompetent” under rule 602). Instead, the Court held that “in a case dealing with the competency of a child sexual abuse victim, . . . lapses in memory are appropriately dealt with under Utah Rule of Evidence 403, which provides for the exclusion of testimony so unreliable that its potential for unfair prejudice substantially outweighs its probative value.” Eldredge, 773 P.2d at 33–34. See State v. Fulton, 742 P.2d 1208, 1218 & n.15 (Utah 1987). Thus, because under established precedent a motion to exclude Beth‘s testimony under rule 602 would have proven unsuccessful, Counsel did not perform deficiently by not objecting to her testimony on that ground. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objections does not constitute ineffective assistance of counsel.“).
¶55 Under rule 403, “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
¶56 But Granere‘s argument that Counsel was ineffective for failing to object to Beth‘s testimony under rule 403 is limited to the
mere assertion that “[m]any of these factors cut against the admissibility of [Beth‘s] testimony under Rule 403.” Granere does not support this assertion with any analysis. Without more, Granere has not carried his burden of persuasion on this issue, see Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903;
C. Video of Beth‘s CJC Interview
¶57 Next, Granere contends that Counsel was ineffective for playing Beth‘s “unreliable and inadmissible” CJC interview for the jury over the State‘s objections. At trial, Counsel indicated that the recording of the CJC interview—and not just the transcript—was “critical” because he intended to use it “to show the jury” and “to keep track of the times [Beth] laughs” and “focuses on the camera.” The State objected to the recording, asserting that it was not admissible under rule 15.5 of the Utah Rules of Criminal Procedure because Beth was “no longer under the age of 14.”23 The State further argued that “unless there is some other valid reason under the rules for which [the recording] should be played, it shouldn‘t be played” and suggested “that just merely playing the CJC interview could be a problem going forward.” In response, Counsel assured the court that he was “very concerned” about “alienating the jury” and he had “all the same concerns that we all have here.” The trial court granted Counsel‘s request, and as part of his cross-examination of Beth, Counsel played the entire 43-minute interview for the jury, pausing over 50 times to ask Beth whether she had giggled or looked at the camera at a particular instance. And during closing argument, Counsel tallied that Beth had giggled 52 times and focused on the camera 22 times but did not cry once.
¶58 Following his conviction, Granere moved for a new trial arguing, in relevant part, that Counsel was ineffective for playing the CJC interview for the jury. The court rejected this argument, holding that whether the recording was admissible under rule 15.5 was irrelevant because Counsel “did not seek to admit the video under Rule 15.5.” Rather, “Counsel sought to admit the video to show that [Beth] was . . . not sympathetic . . . or was not believable, that she giggled or played to the camera numerous times during the interview.” Accordingly, the court determined that Counsel did not perform deficiently because he “had a strategy for undermining [Beth‘s] credibility” by emphasizing her unserious behavior “while reporting alleged abuse.” The court further held that “a reasonable basis supported [this] strategy.” We agree.
¶59 Granere contends that Counsel‘s “tactic was not objectively reasonable.” See State v. Ray, 2020 UT 12, ¶ 34 n.7, 469 P.3d 871 (“When inquiring whether counsel may have had a sound trial strategy, it must fall within the wide range of reasonable professional assistance. An objectively unreasonable strategy will not suffice.“) (quotation simplified). He asserts that Beth‘s behavior during the interview could be explained away as a “nervous laugh” and “had the likely effect of fostering sympathy for the child.” He further argues that “[i]t was not reasonable to expose the jury to a young child making damning accusations, and maintaining those accusations in the face of intensive cross-examination” or “to admit evidence of statements made in that interview that were consistent with [Beth‘s] trial testimony and which plausibly supported the elements of the State‘s case.”
¶60 Although playing the recording for the jury posed a risk of backfiring, and although another attorney might have decided against doing so, we cannot say that Counsel‘s tactical decision to challenge Beth‘s credibility by playing the CJC interview was objectively unreasonable. See Strickland v. Washington, 466 U.S. 668, 689 (1984) (“There are countless ways to provide effective assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same way.“). Although Beth‘s demeanor during the CJC interview could be attributed to nerves, Counsel‘s interpretation of her behavior was likewise plausible. Counsel also indicated that he had carefully weighed the risks and benefits of this tactic. See Archuleta v. Galetka, 2011 UT 73, ¶ 96, 267 P.3d 232 (“[R]easonably informed strategic choices are almost unassailable.“).
¶61 For all these reasons, Counsel‘s decision to play the recording of the CJC interview at trial was not objectively unreasonable and he therefore did not perform deficiently in so doing.
D. Prosecutorial Misconduct
¶62 Granere argues that Counsel was ineffective for failing to object to several instances of prosecutorial misconduct during closing argument.24 “Counsel for both sides have considerable latitude in their closing arguments. They have the right to fully discuss from their perspectives the evidence and all inferences and deductions it supports.” State v. Houston, 2015 UT 40, ¶ 76, 353 P.3d 55 (amended opinion) (quotation simplified). Furthermore, “the law recognizes the prerogative of opposing
counsel to swallow their tongue instead of making an objection that might have the risk of highlighting problematic evidence or even just annoying the jury.” State v. Hummel, 2017 UT 19, ¶ 110, 393 P.3d 314. Thus, when reviewing “an attorney‘s failure to object to a prosecutor‘s statements during closing argument, the question is not whether the prosecutor‘s comments were proper, but whether they were so improper that counsel‘s only defensible choice was to interrupt those comments with an objection.” Houston, 2015 UT 40, ¶ 76 (quotation simplified). We hold that Counsel did not perform deficiently when he did not object to any of the alleged instances of prosecutorial misconduct recounted below.
¶63 First, Granere contends that the State misrepresented to the jury that Beth consistently recounted what Granere did to her and where he did it, stating, “From the time that she told [the interviewers] at the CJC interview, to the time she came in here, took that stand, and told you her truth and it‘s the same.” Granere also asserts that for the State “to repeatedly maintain that [Beth‘s] consistency proved that she was telling ‘her truth’ crossed the line.” But reasonable counsel could have chosen to forgo an objection and instead counter the State‘s assertion by pointing out the inconsistencies in Beth‘s account, which is exactly what Counsel did here. Counsel directly addressed the State‘s claim of consistency, stating, “And [the prosecution] says, there‘s no change in this trial [compared to what] she said in the CJC interview. Wait, wait, wait.” Counsel then proceeded to recount how the number of allegations between the CJC interview and trial rose from “seven times” to “countless times.” Counsel also stated that because Beth could go to Granere‘s apartment “only if someone picks her up and takes her over,” and Mother testified that she did so only “two to three times,” Granere could not have sexually abused Beth “countless times,” as Beth asserted at trial. Because we cannot say that such a course of action fell outside “the wide range of reasonable professional assistance” and amounted to “an objectively unreasonable strategy,” Counsel did not perform deficiently in pursuing this course of action. See
State v. Ray, 2020 UT 12, ¶ 34 n.7, 469 P.3d 871 (quotation simplified).
¶64 Second, Granere asserts that in light of the fact that “[t]he defense sought and was denied the opportunity not only to obtain the medical records from” Beth‘s hospital visit on the night of her tenth birthday party, but also “to present an alternative source of [the] injury,” the State committed prosecutorial misconduct when it “specifically argued that Granere was the one who caused the transection to [Beth‘s] hymen, and told the jury this corroborated [Beth‘s] word.” Granere also complains that during rebuttal, in response to the defense‘s argument that the injury likely occurred on the night of
¶65 Counsel was likewise free to, and did, contend during closing argument that the fact that Beth was hospitalized for vaginal complaints—whatever the cause—on the night of her tenth birthday party suggested that Granere was not the source of the physical injuries. And it was in this context that the State rebutted Counsel‘s argument by stating that “they examined her and everything‘s normal.” This statement did not go as far as to falsely assert that Beth underwent a vaginal exam—which she did not—that revealed no transections, as Granere appears to suggest. Rather, the statement can also readily be interpreted to mean that the general examination Beth underwent did not spark concerns that Beth suffered any specific trauma to her
genital region that night. As such, the statement also did not fall outside the wide latitude afforded the State during closing argument.
¶66 Third, Granere argues that the State went too far when it offered a theory on rebuttal as to why Beth did not immediately disclose the sexual abuse to Mother. The State told the jury that because there must have been discussion of menstrual periods when Beth went to the hospital with complaints of pain, cramps, and spotting, Beth might have believed that the vaginal bleeding and pain she experienced as a result of the object rape was “a period” and might have thought, “I don‘t want to go back to this. I don‘t need to tell my mom. It‘s a period.” Granere asserts that “[n]one of that theory was supported by any evidence, however, and was fully contrived from the prosecutor‘s imagination.” But Counsel could have reasonably believed that such a statement fell within the wide latitude afforded each side during closing argument. It was clear that the State was merely offering a theory as to why Beth might not have immediately disclosed the sexual abuse—it did not offer the assertion as a statement of fact. And such a theory had a basis in evidence the jury heard at trial, i.e., that Beth had gone to the hospital with complaints of pain, cramping, and vaginal spotting and that, in light of the symptoms, it was likely that periods were discussed. Additionally, reasonable counsel could believe that an objection was not necessary because the theory appeared to be too far-fetched to convince the jury, especially in light of Counsel‘s extensive argument that Beth‘s failure to more timely disclose the abuse went against “human experience.”
¶67 Because none of the challenged statements “were so inflammatory that [C]ounsel‘s only defensible choice was to interrupt those comments with an objection,” Houston, 2015 UT 40, ¶ 76 (quotation simplified), Counsel did not perform deficiently by not objecting during the State‘s closing argument.
II. Rule 412 Evidence
¶68 Prior to trial, Granere filed a motion under rule 412 of the Utah Rules of Evidence seeking to admit evidence that Uncle had sexually abused Beth and that he—and not Granere—had caused the two transections to Beth‘s hymen. In May 2018, the trial court held an evidentiary hearing on the motion at which Granere, Mother, and Beth testified.
¶69 Granere testified that in mid-October 2013, some two weeks into his relationship with Mother, both he and Uncle attended Beth‘s tenth birthday party. Granere stated that toward the end of the party, Uncle asked Mother if he could tuck Beth and her two younger siblings into bed and Mother agreed. Granere did not hear “any noises” or screaming during that time. Granere testified that Uncle reappeared half an hour later and left the party in a hurry shortly thereafter.
¶71 Mother testified that despite Uncle being a convicted sex offender, she allowed him to babysit her children from May 2013,
when she first moved to Salt Lake City, until November 2013, when he was arrested for violating parole. She explained that she had no concerns about Uncle being alone with her children because she trusted him. She denied that Uncle ever sexually abused her when they were younger and stated that she never would have allowed him to watch her children if that had been the case. Mother also denied ever telling Granere that Uncle had raped or sexually abused her. Rather, she stated that she had told him that Uncle “used to beat me up.” She also did not recall Uncle asking to tuck Beth and her siblings into bed on the night of the party.
¶72 Mother stated that she took Beth to the hospital on the night in question because Beth was experiencing “pains in her stomach,” cramping, and vaginal spotting. At the time, she thought that Beth might be starting her period, but she confirmed that that did not turn out to be the case. She stated the hospital never determined the cause of Beth‘s complaints.
¶73 Beth testified last. She stated that she did not remember her tenth birthday party but confirmed that she did not start her period at that time. She remembered that she was given an IV at the hospital and was certain that hospital staff did not perform a vaginal exam on her. Beth denied that Uncle ever touched or inserted anything into her vagina.
¶74 At the conclusion of the evidentiary hearing, the trial court denied Granere‘s rule 412 motion. The court ruled “that the evidence fails to support that [Uncle] was the source of the injury, and there is no basis for allowing the evidence” at trial. It also found Beth‘s testimony that Uncle never sexually abused her to be credible. The court further ruled that even if the evidence was admissible under rule 412, its admission at trial was nonetheless precluded by rule 403 because it was not “relevant to a material factual dispute” and because it “would be confusing and misleading.”
¶75 Ten months later, in March 2019, Granere moved to continue the trial based on newly discovered evidence relating to his rule 412 motion. He alleged that he uncovered Adult Probation & Parole records in which Uncle admitted that Mother “was a past victim of his when they were juveniles” and that “on multiple accounts he held her down and raped her.” Granere argued that this new evidence directly contradicted Mother‘s denial at the evidentiary hearing that Uncle sexually abused her. The trial court denied this motion, ruling that the newly discovered evidence did not alter its prior analysis because it did “not support that Uncle attacked” Beth nor did it “contradict [Beth‘s] testimony . . . that Uncle never touched her vagina or put anything into her vagina.”
¶76 Following his convictions, Granere raised this issue a third time in a motion for a new trial. In that motion, Granere included a declaration from an investigator stating that Uncle‘s girlfriend told him that Uncle babysat Beth and her siblings overnight and that a victim of Uncle‘s told the investigator that Uncle had sexually abused her and another girl when they were around Beth‘s age. The motion also included a declaration from Granere stating that a fellow inmate who had served time with Uncle told him that Uncle admitted to sexually abusing Mother and
¶77 The court denied this motion. It first addressed Granere‘s argument that the court should not have made any credibility determinations at the evidentiary hearing. Although it acknowledged that it did make credibility determinations, the court “clarif[ied] that ruling” by stating that Granere‘s theory that Uncle sexually abused Beth was “speculative.” The court also reiterated that “[p]retrial evidence was insufficient to support the admissibility of [Granere‘s] theory.” Specifically, it stated that “when the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the
fact does exist” and that here “that proof was insufficient.” The court further stated that even taking all Granere‘s assertions “at face value“—i.e., that Uncle sexually abused Mother, that Mother permitted Uncle to babysit her children overnight, that Uncle violated parole by being near his girlfriend‘s children, that Uncle was at Beth‘s tenth birthday party and he tucked her into bed that night, that later that night Beth was admitted to the hospital due to pain and vaginal spotting, that Uncle sexually abused other child victims, and that Uncle was overheard speaking of another uncharged sexual assault that some speculated was perpetrated against Uncle‘s niece (Beth)—there was nonetheless “insufficient proof to support that [U]ncle was the source of [Beth‘s] injury in the case or that [U]ncle abused” her. The court stated that Granere‘s theory “relies on speculation, guesswork, and hearsay.”
¶78 The court further stated that, in any event, “[t]he evidence and speculation concerning [U]ncle as the perpetrator or the source of [Beth‘s] injury is also inadmissible under Rule 403” because it was “conveying, misleading, distracting and time consuming” and “would amount to a trial within a trial against [U]ncle based only on conjecture.”
¶79 On appeal, Granere argues that the trial court abused its discretion in excluding, under rules 403 and 412, evidence that Uncle sexually abused Beth and that he was the cause of the physical injuries that the State‘s evidence attributed to the object rape Granere allegedly perpetrated against Beth in the bathtub. Because we ultimately affirm the court‘s exclusion of the evidence under rule 403, we have no need to address the court‘s ruling that the evidence was also inadmissible under rule 412.25 See Utah R.
¶80 Under rule 403, “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
¶81 Granere mainly argues that the trial court abused its discretion in excluding the rule 412 evidence because it was “highly probative of material factual issues“—i.e., the cause of the two hymenal transections—and because “any ostensible prejudice to the alleged victim was minimal” and the “risk of unfair prejudice was low.” But this argument does not directly address the court‘s rulings. Specifically, in denying Granere‘s rule 412 motion, the trial court ruled that the evidence was inadmissible under rule 403 because it “would be confusing and misleading.” And in denying his motion for a new trial, the court stated that in addition to being “confusing and misleading,” the evidence was also inadmissible under rule 403 because it would be “distracting and time consuming” and “would amount to a trial within a trial against [U]ncle based only on conjecture.” The court‘s ruling was entirely silent as to unfair prejudice or potential prejudice to Beth. Thus, Granere‘s arguments on this point miss the mark and are irrelevant to our review of the court‘s decision.
¶82 Granere briefly addresses the court‘s actual rule 403 analysis by stating that “the evidence at issue would not have unduly diverted the focus of the trial or confused the issues” but “[i]nstead the use of this evidence went to one of the paramount issues in this case—Did Granere engage in the alleged sexual activity with [Beth] and cause this child‘s hymenal injury as stressed by the State?” But this bare assertion that the evidence simply would not have been distracting, without any supporting
argument or analysis, is insufficient to carry Granere‘s burden of persuasion on appeal that the trial court abused its discretion in weighing the probative value of the evidence against the potential that the evidence would be confusing, misleading, distracting, and time-consuming. See
¶83 Accordingly, we affirm the trial court‘s exclusion under rule 403 of Granere‘s proffered rule 412 evidence.
III. Inherent Improbability
¶84 Appellate courts “are not normally in the business of reassessing or reweighing evidence, and . . . resolve conflicts in the evidence in favor of the jury verdict.” State v. Prater, 2017 UT 13, ¶ 32, 392 P.3d 398 (quotation simplified). An exception arises in certain “unusual circumstances” such as “when witness testimony is so inconclusive or inherently improbable that it could not support a finding of guilt beyond a reasonable doubt.” Id. (quotation simplified). See State v. Robbins, 2009 UT 23, ¶ 14, 210 P.3d 288 (“A conviction not based on substantial reliable evidence cannot stand.“) (quotation simplified). Such a claim “is difficult to successfully establish” on appeal. State v. Cady, 2018 UT App 8, ¶ 18, 414 P.3d 974, cert. denied, 421 P.3d 439 (Utah 2018).
¶85 In determining whether a witness‘s testimony is inherently improbable, “the proper test is . . . whether reasonable minds must
have entertained a reasonable
¶86 In denying Granere‘s motion to arrest judgment on inherent improbability grounds, the trial court held that the evidence the State presented was “sufficient to support each element of each offense where the jury convicted.” It further held that although there were some “in inconsistencies and disputes in” Beth‘s testimony, “those inconsistencies and disputes were presented to the jury, and the jury was left to sort it out and to assess the credibility and the weight of the evidence.” Based on its first-hand experience at trial, the court stated that Beth‘s testimony was “not incredibly dubious, absurd, impossible, or self-contradictory, or inconsistent such that [it] should disregard the jury‘s verdict.” It also noted that Beth‘s testimony was not physically impossible and that it was corroborated by physical injuries.
¶87 On appeal, Granere argues that Beth‘s testimony was inherently improbable because it was both physically impossible and because it contained both patent inconsistencies and inherently false statements. We disagree.
¶88 Granere asserts that Beth‘s testimony regarding any sexual abuse that occurred at the cabin was physically impossible
because this claimed “abuse took place . . . during the winter months when the cabin had been shut down for the season” and because he “was being monitored on a GPS ankle monitor during the relevant time frame.”27 But Granere‘s assertion that the cabin was inaccessible at the time the abuse was alleged to have occurred is wholly dependent on his father‘s testimony, which the jury was free to disbelieve. See State v. Torres, 2018 UT App 113, ¶ 20, 427 P.3d 550 (“The jury is free to believe or disbelieve all or part of any witness‘s testimony[.]“) (quotation simplified). Indeed, in addition to Beth‘s testimony, Mother also testified that Granere twice took her and Beth to the cabin. Mother testified that Granere once took Beth snowmobiling near the cabin. Thus, in the face of contradictory testimony, the job fell to the jury to determine credibility and which account to believe.
¶89 Concerning the GPS ankle monitoring evidence, the detective stated that the ankle monitor would not have alerted authorities if Granere had gone to the cabin during times that he was supposed to be at work, and it was therefore possible for Granere to spend a day at the cabin so long as he was back to his Salt Lake apartment by curfew. Thus, although perhaps difficult, it was not physically impossible for Granere to have abused Beth at the cabin between mid-November 2013 and mid-March 2014.
¶90 Moreover, given the uncertain timeline of events, it is also possible, as the State points out, “that the jury could simply have squared any inconsistencies by finding that Beth‘s description of the years-old cabin abuse occurred before or after the timeframe identified by Granere‘s witnesses.” In other words, the cabin was
supposed to be winterized and Granere wore the GPS ankle monitor between November 2013 and March 2014. It was possible for the jury to find that the alleged abuse at the cabin took place sometime either before or after that time period. Indeed, the jury instructions provided that the offenses for which Granere was charged
¶91 Next, in arguing that Beth‘s testimony contained patent inconsistencies and inherently false statements, Granere asserts that she exhibited an “ever changing ‘memory‘” in that the “[t]he number and frequency of the alleged instances of abuse changed throughout the duration of the investigation as well as during the trial itself” and that “the time frame was also an ever-moving target.” Granere points to four instances of this.
¶92 First, he asserts that Beth “initially reported in the CJC interview that touching occurred over clothes,” but “[a]t trial, the accusations morphed into countless rapes in both the Salt Lake apartment and at the cabin.” But Beth reported much more than over-the-clothes touching during the CJC interview, including object rape and several instances of vaginal rape. Thus, this assertion is incorrect. And in any event, additional allegations of abuse made after a child‘s initial disclosure does not render the child‘s testimony inherently improbable. See State v. Wells, 2014 UT App 13, ¶ 9, 318 P.3d 1251 (“[T]he simple fact that Child alleged additional abuse later does not make Child‘s testimony inherently improbable.“). To the contrary, such disclosures are
“merely cumulative, and simply add[] more details in the later statements.” Id. We thus see no material inconsistency here.
¶93 Second, Granere states that Beth “reported to [Nurse] that Granere forced her to lick his penis,” but “[a]t trial, [Beth] instead testified Granere licked her vagina.” But these statements are also not materially inconsistent. Beth‘s trial testimony that Granere “put his . . . tongue” on her vagina does not contradict her earlier statement to Nurse that “she had to lick his penis” as the two acts are not mutually exclusive. Rather, as discussed above, the additional disclosures of abuse were cumulative. See id. But even if the two statements were inconsistent—which they are not—“the fact that a witness‘s trial testimony is somewhat at odds with other evidence in the case, including perhaps that witness‘s own prior statement, is not enough to render that testimony inherently improbable.” State v. Carrell, 2018 UT App 21, ¶ 53, 414 P.3d 1030 (quotation simplified), cert. denied, 425 P.3d 801 (Utah 2018). Indeed, “[t]he question of which version of [a witness‘s story] was more credible is the type of question we routinely require juries to answer.” State v. Prater, 2017 UT 13, ¶ 39, 392 P.3d 398.
¶94 Third, Granere asserts that “on the eve of trial, completely new allegations were made of anal penetration.” At the time, Counsel lodged an objection to this additional allegation and the State stated, “To be honest, she doesn‘t want to talk about it anyway. So if they‘re willing to forego talking about it, so will we.” Thus, the court excluded evidence of that allegation. But again, this was merely an additional disclosure and, for the same reasons already discussed, this allegation was cumulative and did not amount to a material inconsistency.
¶95 Fourth, Granere states that Beth‘s timeline of the abuse has been inconsistent. He points out that during the CJC interview, Beth told officers that the abuse started some two or three months into Mother and Granere‘s seven-month relationship and ended around the time they broke up. But at certain points during trial, Beth testified that the abuse occurred over “the course of one to
two years.”29 This is the sole inconsistency
¶96 Lastly, Granere does not engage with the evidence presented at trial corroborating Beth‘s allegations of sexual abuse.
In denying Granere‘s motion to arrest judgment, the trial court discussed that the jury heard evidence corroborating Beth‘s testimony. Specifically, the court pointed to evidence of the two hymenal transections that “were consistent with penetrating abuse.” Although this corroborating evidence of abuse does not support every aspect of Beth‘s testimony, it does lend credence to her allegation that she was sexually abused. See State v. Skinner, 2020 UT App 3, ¶ 34, 457 P.3d 421 (“Corroborating evidence sufficient to defeat [an inherent improbability] claim does not have to corroborate the witness‘s account across the board, in every particular. It just has to provide a second source of evidence for at least some of the details of the witness‘s story.“), cert. denied, 462 P.3d 805 (Utah 2020).
¶97 In sum, with the exception of the inconsistencies concerning the timeline of abuse, Granere‘s challenges to Beth‘s testimony do not amount to physical impossibilities or material inconsistencies. Additionally, the jury was presented with physical evidence corroborating Beth‘s testimony that she was sexually abused. For these reasons, Beth‘s testimony did not rise to the level to which “reasonable minds must have entertained a reasonable doubt that the defendant committed the crime,” State v. Jok, 2021 UT 35, ¶ 32, 493 P.3d 665 (quotation simplified), and Granere‘s inherent improbability challenge therefore fails.
IV. Cumulative Error
¶98 Granere also argues that the cumulative effect of multiple errors was prejudicial. “A reviewing court will reverse a jury verdict under the cumulative error doctrine only if the cumulative effect of the several errors undermines confidence that a fair trial was had.” State v. Killpack, 2008 UT 49, ¶ 56, 191 P.3d 17 (quotation simplified). See State v. Martinez-Castellanos, 2018 UT 46, ¶ 40, 428 P.3d 1038 (stating that the cumulative error “doctrine will not be applied when claims are found on appeal to not constitute error, or the errors are found to be so minor as to result in no harm“) (quotation simplified). Because we see no error as concerns
Granere‘s remaining conviction for object rape of a child, there are no errors to cumulate, and the doctrine is inapplicable.
CONCLUSION
¶99 Because Counsel was ineffective for failing to request a proper unanimity instruction, we reverse Granere‘s convictions for rape of a child and aggravated sexual abuse of a child and remand for further proceedings on those counts. But because Granere‘s conviction for object rape of a child withstands
Notes
But in her CJC interview, which was played for the jury, Beth told the interviewers that although she could not remember what happened after Granere took her from the bathtub to the bed, he told her the next day that they “had sex.” The State may have thus been referring to that account when it made this statement.
But because the Court has “recently ‘repeatedly eschewed extra-textual or contra-textual judicial glosses on the Utah Rules of Evidence,‘” State v. Rallison, 2023 UT App 34, ¶ 25 n.7, 528 P.3d 1235 (quoting State v. Biel, 2021 UT 8, ¶ 25, 484 P.3d 1172), and because “an application of rule 403 that presumes inadmissibility for rule 412 evidence is not indicated in the plain language of rule 403,” “we are not certain whether this presumption continues to be applicable, and we wait for the supreme court to weigh in on this issue,” id.
In the interim, because we are able to conclude that the trial court did not abuse its discretion in excluding the rule 412 evidence under the typical rule 403 analysis, we need not address this question further. See id.