{1 Riсhard L. Moore appeals from his conviction for sexual abuse of a child, a see-ond degree felony, see Utah Code Aun. § 76-5-404.1(2)-(8) (2008). 1 Moore argues that the trial court plainly erred in admitting out-of-court statements that he claims were hearsay and that trial counsel was ineffective because counsel failed to object to the admission of that hearsay evidenсe. Moore also contends that there was insufficient evidence to convict him. We affirm.
T2 "On appeal, we recite the facts in the light most favorable to the jury's verdict." State v. Burk,
13 After they returned home that night, however, Child told her sister (Sister), "I need to tеll you something." According to Sister, Child started erying as she told Sister that Moore touched her "' "really, really bad" '" on her " 'pee-pee.'" 2 " Sister then told Child to "'tell Mom." While Child did tell Mother that Moore touched her vagina inside of her underwear, when she did so was disputed. Child recalled telling her the night of the incident, but Mother thought it was about a month later. Prior to trial, the State moved to have Child's statemеnts to Sister and Mother admitted. Moore's attorney represented that he "was not going to object to that information."
I. Hearsay
{4 Moore now contends that the trial court committed plain error in admitting Child's out-of-court statements to Sister and Mother and that his counsel was ineffective for failing to object to admission of Child's statements to Sister and Mother because those statements constituted inadmissible hearsay.
To establish plain error, the defendant must demonstrate that an error occurred, the error was or should have been obvious, and the error was prejudicial. See State v. Casey,
T6 Moore also challenges the admission of the out-of-court statements under the doctrine of ineffective assistance of counsel.
To establish ineffective assistance of counsеl, a defendant must show that (1) counsel's performance was deficient, in that it fell below an objective standard of reasonableness and (2) counsel's performance was prejudicial in that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.
State v. Maestas,
T7 In its brief, the State has posited a "conceivable legitimate" strategic basis for defense counsel's decision not to object to the admission of the statements. See generally Tennyson,
18 In furtherance of the fabrication defense, defense counsel elicited, during cross-examination, Child's prior statements to Sister аnd Mother to highlight that Child had described the touch as occurring not only on her vagina but also over her underwear and on her inner thigh. Defense counsel attempted to use these inconsistencies to undercut Child's credibility and strengthen the defense's theory that her story was a fabrication and that Moore's claim that he accidentally touched Child's thigh was more consistent with the facts. In so doing, defense counsel necessarily balanced the risk of allowing admission of Child's statements at trial against the chance that inconsistencies in those statements would help Moore's case. See generally State v. Franco,
T9 Further, it is not apparent that Child's statements to Sister and Mother were in fact inadmissible, in which case trial counsel's performance cannot be deemed ineffective. See Maestas,
A statement ... is not hearsay[ if] ... [the declarant testifies [at trial] and is subject to eross-examination about a prior statement, and the statement ... is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying....
Utah R. Evid. 801(d)(1)(B). Prior consistent statements may be admitted, however, " 'only when those statements were made before the charged recent fabrication'" State v. Bujan,
1 10 Moore claimed that the allegation that he touched Child's vagina arose onе week after he refused to help Mother move, and Moore invited the jury to infer that Child's accusation was generated as a result of Mother's resulting anger. On appeal, Moore contends that Child's report to Sister occurred after the motive to fabricate because Sister did not tell Detective Artis about the report until nine months after the touching. Although Sister did not relay this information to the detective until months later, she informed him that Child had told her about the sexual abuse the night of their visit to Moore's house, which was before the claimed motive to fabricate arose. Thus, Child's statement to Sister was likely admissible as nonhearsay under rule 801(d)(1)(B) of the Utah Rules of Evidence as a prior consistent statement, and objection to its admission on the basis that it was hearsаy would have been futile. See generally State v. Kelley,
111 Regarding Child's report to Mother, Child testified that she told Mother about the touching on the night it occurred. Mothеr testified, however, that Child told her approximately one month after it happened. Moore testified that the alleged motive to fabricate-his refusal to help Mother move-occurred approximately three to four weeks after the incident. The evidence therefore is both conflicting, because Child's and Mother's testimonies about the timing of Child's disclosure differ, аnd equivocal, because there is not enough information in the record about the timing of the refusal to help Mother move and the timing of Child's disclosure to Mother to determine when the two events occurred in relation to each other. Thus, it cannot be determined on the state of the record before us whether Child reported to Mother that Moore touched her vagina prior to the occurrence of the motive to fabricate or afterward. Yet Moore's position on appeal assumes the testimony unequivocally places the time of Child's report to Mother after the motive to fabricate arose. Normally, this type of fact-intensive admissibility question is resolved in the trial court, for example, under rule 104 of the Utah Rules of Evidеnce. See generally Utah R. Evid. 104(a)-(b) (requiring preliminary questions concerning witness qualification or admissibility of evidence to be determined by the court, but if the question is dependent on the existence of a fact, then allowing the court to admit it on the condition that evidence of that fact is introduced). But because
112 Resolution of this question is not necessary to our decision, however, because even if Child's statements to Mother were inadmissible hearsay, they were cumulative, and their admission thus appears to have been harmless under all the circumstances. Detective Artis testified that Sister told him that Child had said that Moore " tоuched her "really, really bad""'" on "'her pee-pee,'" while Mother reported that Child told her that Moore "touched her bad" and explained that he had "put his hands inside of her panties." Thus, Mother's recounting of Child's statement to her did not appear to add anything of substance to what Child reported to Sister or to what Child herself testified to, and any error in admitting it was not prejudicial.
3
See gemerally State v. Evans,
II. Sufficiency of the Evidence
113 Finally, Moore claims that the evidence was insufficient to prove that hе actually touched Child's genitals Moore's argument has two parts: first that Child's description of the location of the touch was so inconsistent as to be apparently false and second that the State did not establish that Child actually understood the word "vagina." Evidence is sufficient to support a conviction "if, 'upon reviewing the evidence and all inferences that can be rеasonably drawn from it, ... some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt'" State v. Kihlstrom,
1 14 When reviewing the suffiсiency of the evidence, appellate courts "may not reassess credibility or reweigh the evidence, but must resolve conflicts in the evidence in favor of the jury verdict." State v. Workman,
{15 Moore claims that Child's testimony was so inconsistent in her description of the
16 Moore also claims that the State did not establish that Child actually meant her genitals when she used the word "vagina" to describe where Moore touched her. But the prosecutor explored Child's understanding of the word at trial:
[STATE]: ... Did his fingers go underneath your underwear?
[CHILD]: Yes.
[STATE]: Okay, what does your underwear cover?
[CHILD]: My private parts.
[STATE]: Okay, and what is your private parts?
[CHILD]: My vagina.
Child's description of her vagina as the "private parts" her underwear covered indicates that she understood the meaning of the term and was not merely parroting language used by her family, investigators, or the prosecution. Furthermore, in her statements around the time the abuse occurred, Child consistently referred to the general area of the touch as her "pee-pee," and her use of the word "vagina" at trial three years later could be attributable as much to the natural process of maturation and vocabulary development between eight and eleven years of age as to outside influence. Certainly, nothing in the record indicates otherwise. In this regard, Mоore conceded in his brief that if Child understood the anatomical meaning of vagina, the evidence would be sufficient for the jury to convict him because she testified that Moore touched her "vagina," and we agree with that assessment. We therefore conclude that there was sufficient evidence from which a jury could find that Child referred to her genitalia when she testified that Mоore touched her vagina.
[ 17 Affirmed.
18 WE CONCUR: CAROLYN B. McHUGH, Presiding Judge and J. FREDERIC VOROS JR., Associate Presiding Judge.
Notes
. We cite the current versions of the Utah Code and the Utah Rules of Evidence because the relevant statute has not been amended, see Utah Code Ann. § 76-5-404.1 amend. notes (2008), and the changes to the relevant rules are "intended to be stylistic only," see Utah R. Evid. 104, 2011 advisory committee's note; id. R. 801, 2011 advisory committee's note.
. Sister's account of the events came into evidence through the testimony of Detective James Artis, an officer employed with the special victims unit of the Salt Lake City Police Department, after Sister was unable to recall at trial any of the details of Child's report to her that Moore inappropriately touched Child. In a footnote in his brief, Moore asserts that both Child's statement to Sister and Sister's statement to Detective Artis constitute hearsay. While Moore has identified a potential double hearsay issue, he does not further analyze this issue, and accordingly, we will not consider it.
. The State also contends that Child's out-of court statements to Sister and Mother could have come in as excited utterances or as nonhearsay offered solely to explain why Mother confronted Moore. Because we resolve the issue on other grounds, we do not reach the State's alternative bases for admitting the statements.
. Child's statement that Moore touched the side of her vagina was actually not in response to where the touching was but to how he touched her. Child stated that Moore was "[klind of rubbing" her on the side of her vagina.