OPINION
T1 Defendant Ricky Allen Tueller appeals his conviction for Sexual Abuse of a Child, a second degree felony, in violation of Utah Code Ann. § 76-5-404.1 (1999). We affirm.
BACKGROUND
12 "We view the facts in the light most favorable to the jury verdict and recite them accordingly." State v. Loose,
13 Mr. Nielson worked as a maintenance man at the trailer park and recognized both Defendant, who was the father of one of his friends, and R.G., who lived near Defendant and often played with Defendant's children. Defendant and R.G. became aware of Mr. Nielson's presence, and immediately R.G. stood and pulled up her panties. Mr. Niel-son called Defendant a "sick pervert or a sick bastard" and walked into the first stall.
T 4 Mr. Nielson heard Defendant and R.G. leave and decided to follow them. He checked the women's bathroom, then saw Defendant holding R.G. by the arm and walking her towards Defendant's trailer. Mr. Nielson went to the manager's office, and had the manager call the police.
15 The police arrived shortly after 8:00 pm. and, after talking with Mr. Nielson about what he had seen, went to R.G.'s trailer. R.G.'s mother was not home and her father said he did not know where R.G. was. The police then went to Defendant's trailer and knocked on the door. When the door opened, R.G. ran towards her father, who was standing near the police officers. Officer Day, one of the responding officers, described R.G. as "visibly upset, trembling{,] some erying ... kind of a loud, emotional outburst." At about 8:55 p.m., Detective Hudson interviewed R.G. and her mother, who had arrived in the interim. Detective Hudson described R.G.'s emotional condition much as Officer Day had, clinging to her mother, trembling, and erying in response to the detective's questions. During that interview, R.G. said that Defendant had asked her to go to the clubhouse bathroom. She then demonstrated where on her legs her panties had been pulled down to, but said that Defendant had not touched her "private parts."
T6 Defendant was arrested and charged with sexual abuse of a child. In a subsequent trial, a jury convicted Defendant of the charged offense from which Defendant now appeals.
ISSUES AND STANDARDS OF REVIEW
T7 Defendant raises several issues on appeal. First, he argues that the trial judge was biased and should have recused himself. "Determining whether a trial judge committed error by failing to recuse himself ... is a question of law, and we review such questions for correctness." State v. Alonzo,
ANALYSIS
I. Trial Judge's Recusal
18 Defendant acknowledges that he raises the issue of recusal for the first time on appeal. Therefore, he has not properly preserved it for review. See Straley v. Halliday,
19 Having failed to properly preserve the issue of judicial bias for our review, Defendant must show either "plain error" or "exceptional cireumstances" before we can review this issue. State v. Holgate,
1 10 "[A] question of potential [Juror] bias arises when a prospective juror indicates that he or she has been the victim of a [crime similar to that with which the defendant is charged]." State v. Wach,
§11 Defendant contends, however, that the trial court exhibited actual bias by not excusing the four jurors who knew vie-tims of sexual abuse, while excusing the juror who was currently housing a victim who was also an alleged perpetrator. We grant the trial court considerable deference in its decisions to dismiss jurors for cause because we recognize "the trial judge's somewhat advantaged position in determining which persons would be fair and impartial jurors." Id. at 125 (internal quotations and citation omitted). Here, the four jurors not excused had relatives who had been sexually abused sometime in the past, whereas the juror who was exeused had an alleged perpetrator then residing with her. We cannot conclude that this exercise of judicial discretion exhibited actual bias. 1
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112 We are also unconvinced by Defendant's assertion that the trial judge demonstrated actual bias when he admonished Defendant in the jury's presence about signaling a witness. We recognize that the trial judge has an " 'advantaged position ... to determine the impact of events occurring in the courtroom on the total proceedings." State v. Kohl,
113 The trial judge also adequately cured any appearance of impropriety by reminding the jurors that they were the "sole judges of the facts of the case and the credibility of witnesses." See Alonzo,
§14 Finally, Defendant argues that the trial judge exhibited actual bias in discussing with counsel, out of the presence of the jury, possible witness tampering charges. Defendant's argument is without merit. We decline to discuss the propriety of the judge's comments as Defendant cannot show how, absent the judge's comments, the result would have been different. The jury was the sole determiner of the facts in this case, and this conversation regarding Defendant's perjury and his violation of the pretrial release order occurred out of the jury's presence and after the defense rested; thus, the conversation had no impact on the verdict.
" 15 Defendant suggests that even if these comments do not demonstrate actual bias of the trial judge, the appearance of bias that they suggest was prejudicial because the trial judge sentenced Defendant to prison. We do not agree. During the conference when they were discussing Defendant's violation of the pretrial release order, the trial judge told Defendant that although he had "said some harsh things," when time came for sentencing, he would listen to anything Defendant or his counsel had to say regarding sentencing and "deal with those other issues separately." When Defendant was ultimately sentenced to prison after his convietion for sexual abuse of a child, the trial judge followed the recommendation in the presentence investigation.
$16 Defendant also argues exceptional cireumstances in that trial counsel was ineffective because counsel did not attempt to have the trial judge removed. Since we have concluded that there was no actual bias in the trial judge's actions, we cannot say that trial counsel's failure to attempt to disqualify the judge constitutes performance "below an objective standard of reasonable professional judgment." Bundy v. Deland,
II. Sufficiency of the Evidence
117 "[A)ls a general rule, a defendant must raise the sufficiency of the evidence by proper motion or objection to preserve the issue for appeal." Holgate,
{18 Defendant argues, in the alternative, that the insufficiency of the evidence was plain error. "[TJo establish plain error, a defendant must demonstrate first that the evidence was insufficient to support a conviction of the crime charged and second that the insufficiency was so obvious and fundamental that the trial court erred in submitting the case to the jury." Id. at 117. In determining whether the evidence was insufficient, we do not "examine whether we believe that the evidence at trial established guilt beyond a reasonable doubt." Id. at 118. Instead, we *1186 view the evidence in the light most favorable to the jury's verdict, then determine if the evidence is " 'sufficiently inconclusive or inherently improbable such that reasonable minds must bave entertained a reasonable doubt that the defendant committed the crime for which he ... was convicted." " Id. (citation omitted).
119 Section 76-5-404.1(1) provides that a person has committed sexual abuse of a child when the person
touches the anus, buttocks, or genitalia of any child, the breast of a female child younger than 14 years of age, or otherwise takes indecent liberties with a child, or causes a child to take indecent liberties with the actor or another with intent to . arouse or gratify the sexual desire of any person regardless of the sex of any participant.
Id. Mr. Nielson's testimony alone provides evidence of all the requisite elements of the crime. Mr. Nielson testified that he walked in on Defendant and the victim in a darkened bathroom and observed Defendant laying on top of the victim. Mr. Nielson further testified that Defendant's pants were down to "the bottom margin of his buttocks," that the victim's panties were down near her knees, and that the victim's legs were spread apart and Defendant's knee was between her legs. Defendant argues, however, that this evidence is insufficient because there is no evidence that he actually touched the victim's genitals.
[ 20 The State's theory, however, was that Defendant's acts constituted an indecent liberty. Although the statute is not specific as to what acts comprise an indecent liberty, our supreme court, in State v. A.T.,
III Jury Instruction
Defendant's next argument is that the trial court erred when it instructed the jury that before considering the lesser offense of lewdness involving a child, the jury must first find Defendant not guilty of the greater offense of sexual abuse of a child. Defendant concedes that trial counsel did not object to the instruction, and therefore, did not preserve this issue for review. Defendant argues, however, that we may review the issue as plain error. Given that trial counsel stipulated to this instruction, Defendant is precluded from arguing on appeal that it was plain error for the trial court to give it. See State v. Litherland,
122 The instruction that counsel stipulated to involved the lesser included offense of lewdness involving a child. See Utah Code Ann. § 76-9-702.5 (1999). The relevant part of that statute provides: "(1) A person is guilty of lewdness involving a child if the person under circumstances not amounting to ... sexual abuse of a child [engages in certain acts]. ..." Id. (emphasis added). Since sexual abuse of a child was the primary charged offense, before considering Defendant's acts under section 76-9-
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702.5, the jury would first have to determine that those acts did not fall within section 76-5-404.1. Consequently, under the statutory scheme, the only way the jury could get to the lesser included offense would be to first determine that Defendant's acts did not amount to sexual abuse of a child. We cannot, therefore, conclude that trial counsel's stipulation to the pertinent instructions fell below an "objective standard of reasonable professional judgment." Litherland,
IV. Victim's Statements
123 Defendant's final argument is that the trial court erred in admitting out-of-court statements the victim made to Detective Hudson during his interviews with her. The trial court admitted the statements as an excited utterance under Rule 808(2) of the Utah Rules of Evidence. It is a well-established rule that we may affirm a judgment of the trial court on grounds other than those used as the basis for its decision. See State v. South,
124 Rule 801(d) of the Utah Rules of Evidence provides, in part: "A statement is not hearsay if; (1) ... The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is (A) inconsistent with the declarant's testimony or the witness denies having made the statement or has forgotten...." Id. In admitting a prior inconsistent statement, the court need only assure that "the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require." Utah R. Evid. 613(b).
125 In this case, the victim had already testified when Detective Hudson testified as to the victim's out-of-court statements. During her testimony, the victim testified that she had not been in the bathroom at the trailer park and that she did not remember telling Detective Hudson she had been in the bathroom with Defendant or about any of the events that occurred there. However, during her initial interview with Detective Hudson on the night of the incident, the victim told Detective Hudson she had been in the bathroom with Defendant, that her panties were down, that Defendant's pants were down, and that Defendant was laying on top of her.
126 The victim's out-of-court statements were offered to impeach her trial testimony. The prosecutor indicated during his direct examination of the victim that, "I have the right to impeach my witness with regard to this." The prosecutor then attempted to refresh the victim's memory as to her original statements and give her a chance to explain them in compliance with Rule 618(b). We conclude, therefore, that the victim's out-of-court statements were properly admitted as prior inconsistent statements.
CONCLUSION
127 Defendant has failed to convince us that the trial judge exhibited bias against Defendant such that he should have recused himself or been disqualified. Further, we conclude that there was sufficient evidence as to the elements of the offense that the jury could reasonably have found Defendant guilty. We also conclude that trial counsel was not ineffective in stipulating to the jury instruction on the lesser included offense of lewdness involving a child. Finally, we affirm the trial court's ruling, albeit on different grounds, that the out-of-court statements of the victim were admissible.
128 Accordingly, we affirm Defendant's conviction for sexual abuse of a child.
Notes
. Even if the court erred by not excusing all of the potential jurors, the error was harmless as none of the potential jurors sat on the jury that convicted Defendant. See State v. Menzies,