Tag: testimony

Second-Hand Testimony Is and Never Will Be Better Than the Witness’s Own Testimony in His/Her Own Voice

For lawyers and parents (and perhaps even commissioners and judges) who hate child custody determinations (temporary or otherwise) based upon proffer, I share this with you:

This court has previously expressed concern about determining custody based upon proffers given the seriousness and magnitude of child custody decisions.


In Fullmer v. Fullmer, 761 P.2d 942 (Utah.Ct.App.1988), this court reviewed a permanent custody award entered based upon a proffer of witness testimony and the stipulated receipt of two child custody reports. In a footnote, we observed:

Although the parties stipulated that the testimony could be presented by proffer, and appellant does not argue that she was entitled to an evidentiary hearing, we note that an evidentiary hearing with all witnesses testifying would have been preferable. In a child custody case, we are convinced that witness demeanor and credibility are critical in ascertaining whether there has been a change of circumstances and what is in the best interests of the child. Any award of physical custody based solely upon what an attorney states a witness would have said and documentary evidence not subject to cross-examination is tenuous at best and subject to close scrutiny on appeal. Such deficiencies undermine the vitality of the trial court’s determinations.

Id. at 945 n. 1 (citations omitted); see also Hamby v. Jacobson, 769 P.2d 273, 278 (Utah.Ct.App.1989) (“[I]n cases involving the best interests of a child and competing claims by parents of the child, demeanor and credibility of witnesses is particularly critical, and use of proffers should be discouraged.”).


[W]e reiterate that the use of proffers as a basis for child custody determinations, whether permanent or temporary, is discouraged.

(Montano v. Third Dist. Court for County of Salt Lake, 934 P.2d 1156, 1157-1158 (Utah Ct.App.1997).

The presumption that second-hand testimony “from” a child through someone other than the witness is generally better than hearing from the witness himself/herself is rationally and factually bankrupt. The idea that a judge (a former lawyer) charged with adjudicating a child custody dispute shouldn’t interview a child who is the subject of a custody dispute but should appoint a lawyer to do it (and in secret) instead is rationally and factually bankrupt as well.

In light of the sentiments expressed in the Montano decision, I ask you: why appoint PGALs and/or custody evaluators who (a) refuse to record their interviews of the children and of collateral sources for the record and (b) refuse to allow children to testify and/or refuse to interview children on and for the record in child custody dispute cases; and (c) continue to insist that second-hand testimony is better than the witness’s own testimony in his/her own voice?

Utah Family Law, LC | | 801-466-9277

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2024 UT App 51 – Bailey v. Bailey – evidence, sanctions

2024 UT App 51 – Bailey v. Bailey


AMY L. BAILEY, Appellee, v. DANNY RAY BAILEY, Appellant.

Opinion No. 20220534-CA Filed April 11, 2024

Second District Court, Farmington Department

The Honorable Michael D. DiReda No. 094701582

Julie J. Nelson, Attorney for Appellant Brian E. Arnold, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which


HARRIS, Judge:

¶1        In 2019, nine years after her divorce, Amy L. Bailey (Amy) filed a petition to modify the child support provisions of the divorce decree, asserting that her ex-husband Danny Ray Bailey’s (Danny[1] income had significantly increased. The matter proceeded to trial, where the district court sanctioned Danny for noncompliance with pretrial disclosure obligations. Among other sanctions, the court prohibited Danny from presenting any evidence, and from refuting any evidence Amy presented, regarding his income. At the conclusion of this rather one-sided trial, the court made findings and conclusions regarding Danny’s income that Danny believes are inaccurate.

¶2        Danny now appeals those findings and conclusions, as well as the court’s underlying sanctions order. Danny asserts that the sanctions order was inappropriate and that he is entitled to a new trial at which he may present evidence regarding his income. We agree with Danny, and therefore vacate the court’s modification order and remand the case for a new trial.

The Petition to Modify

¶3        Amy and Danny divorced in 2010; at that time, the parties were able to reach a negotiated settlement which was later incorporated into a decree of divorce (the Decree). The parties have three children together, all of whom were minors at the time of their divorce; only one of the children was a minor at the time of trial. Under the terms of the Decree, Amy was awarded primary physical custody of the children, and Danny was awarded certain parent-time. Danny is self-employed, and his income for child support purposes was determined to be $8,837 per month. Amy’s earnings at that time were determined to be $4,071 per month. Using these income figures, Danny’s child support obligation was calculated to be $1,485 per month.

¶4        In 2019, nine years after entry of the Decree, Amy filed a petition to modify, seeking, among other things, a modification of Danny’s child support obligation. Discovery and disclosure deadlines were set, with fact discovery scheduled to close in November 2019 and expert discovery scheduled to close in March 2020. The expert discovery deadline passed, and neither party designated any expert witnesses. But in September 2020, Amy filed a statement of discovery issues, asserting that Danny had not disclosed certain financial documents, including his 2019 tax return, and asking that Danny be ordered to do so. Amy further requested that she be allowed “to designate an expert to opine on the limited issue of [Danny’s] expenses versus business expenses.” Danny objected to this request, arguing that expert discovery deadlines were “far past” and that Amy “should not be allowed to re-open expert discovery and further extend this matter.” After a hearing, the court ordered both parties to disclose their 2018 and 2019 tax returns and associated financial documents to the other, but the court agreed with Danny on the expert disclosure issue, denying Amy’s request and stating that it was “not inclined to extend discovery deadlines.”

¶5        Eventually, after some delays due to matters not relevant here, the court scheduled a one-day trial regarding the child-support-related issues to occur on November 10, 2021. In its pretrial order, the court ordered that, “at least 28 days before” trial, the parties were to “provide . . . pre-trial disclosures,” including “[t]he name . . . of each witness who will be called at trial,” “an updated financial declaration,” and “copies of their federal income tax returns for the two most recent tax years.”

¶6        On November 2, eight days before trial, Danny filed a motion to continue, asserting that he had “been unable to complete his 2020 tax return due to problems with his accounting software,” and requesting that the trial be continued so that the parties could “proceed with current and accurate income information.” Additionally, Danny brought to the court’s attention that, on October 20, just twenty-one days before trial— and notwithstanding the court’s previous reticence to extend discovery deadlines—Amy had, “for the first time,” identified two expert witnesses that she intended to call at trial. Danny asserted that these disclosures should have been made “within 14 days after the close of fact discovery,” which, in this case, was some two years earlier in November 2019. Danny asked the court to bar Amy from calling these witnesses at trial and, alternatively, stated that if the court was inclined to allow Amy to call these experts, he should be afforded “the appropriate disclosures and discovery opportunities set forth” in rule 26 of the Utah Rules of Civil Procedure. As an added precaution, Danny filed a notice indicating that—contingent on the court’s ruling as to their admissibility—he would like “to receive written reports” from Amy’s newly-disclosed expert witnesses.

¶7        On the same day Danny filed his request for a continuance, Amy filed an objection. While pressing the court to move forward with the trial as scheduled, Amy simultaneously defended the timing of her expert disclosures. On this point, Amy argued that she was attempting to follow the court’s pretrial order, which stated that the list of witnesses that would be called to testify only needed to be provided twenty-eight days before the trial. And, according to Amy, she was doing just that by identifying in her pretrial disclosures the two expert witnesses she intended to call at trial. She argued that these two witnesses were “absolutely necessary” because she intended to rely on “their expert opinion” to demonstrate Danny’s “true income and the expenses being reported on his personal and business income taxes.”

¶8        Three days later, the court held a hearing on Danny’s motion. At the conclusion of the hearing, the court granted Danny’s request for a continuance of the trial date and rescheduled the trial to occur on March 1, 2022. The court also indicated that it would allow Amy to call the expert witnesses and it further observed that the continuance would give Danny time to consider whether he wanted to call a rebuttal expert witness of his own. At the conclusion of the hearing, the court noted that the main reason for continuing the trial was so that Danny could complete his 2020 tax return and disclose it to Amy, and it asked the parties whether they wanted to “set a deadline on the tax return.” Danny’s attorney stated that he’d rather not set a specific deadline, and Amy’s attorney didn’t argue for one either, stating that he and Danny’s attorney had “worked well together on that kind of stuff” and that he didn’t think any specific deadline for disclosure of the tax return would be necessary. The court pushed back a bit, asking, “Not a deadline? You’re okay just leaving it out there?” Amy’s attorney responded by stating that he was “fine with that.” In accordance with the parties’ wishes, the court set no specific deadline for Danny’s production of his 2020 tax return. The court’s previous pretrial order remained in place, however; as noted, it specified that all pretrial disclosures—including recent tax returns—were due “at least 28 days before” trial, which given the scheduled trial date would be February 1, 2022.

¶9        Not long after the November hearing on the motion to continue, Danny’s attorney withdrew. Danny then elected to proceed to trial pro se.

¶10      On February 3, less than four weeks before the trial date, the court held a status conference. At the conference, Amy’s attorney indicated that he had recently received Danny’s newly-completed 2020 tax return—specifically stating that he “just got those the other day”—but that he was still waiting to receive certain bank statements from Danny. In response, Danny—now representing himself—raised certain issues with Amy’s disclosures, indicating that he had not received all of her bank account information. After hearing from both parties, the court ordered Danny to provide Amy with the requested bank statements and ordered Amy “to do the same.”

¶11      During the status conference, the court also discussed the expert witness issue, and it asked Danny if he “had a chance to speak with or read the report from” Amy’s experts. Danny indicated that he had not received any such report. Amy’s attorney stated that he believed the report had been provided either to Danny or his previous counsel, but he offered to “resend” the report to Danny just in case.

The Trial

¶12      On March 1, the trial proceeded as scheduled, with Danny representing himself and Amy represented by counsel. At the start of the proceeding, before any evidence had been presented, Danny brought to the court’s attention that, two weeks earlier, he had filed an objection to Amy’s experts, asking that they be excluded from testifying because he still had not received any reports from them. At this, the court turned to Amy’s attorney for an explanation. Amy’s attorney this time did not claim that any expert report had ever been disclosed to Danny; instead, Amy’s attorney explained that Amy had been unable to “supplement[]” her earlier disclosures with the new experts’ reports because Danny had failed to timely provide Amy with financial information—including, most significantly, the 2020 tax return— that the court “had ordered [Danny] numerous times” to disclose. Amy’s attorney proposed that if the court was disinclined to allow these witnesses to testify as experts, they could, instead, be allowed to testify as “factual witness[es]” just to “tell [the court] what a line means on a tax return.”

¶13 Concerned about possible disclosure failings on both sides, the court asked Amy’s attorney whether it was “still the case” that Danny had failed to deliver “the documents, the returns, the information that [the court] ordered be delivered.” To this, Amy’s attorney responded, “Not timely.” Seemingly dismayed at the lack of cooperation between the parties, the court reminded them that the reason it had continued the trial was so that the parties could “exchange documents,” yet they had apparently still failed to “timely” comply with its instructions. Addressing Danny, the court stated, “So if you’re going to come to me and ask . . . that I exclude a witness, you’ve got to come in with clean hands. If your hands are soiled because you yourself have not complied with the rule and you’ve not told me that, that’s a problem, because I’m not going to apply the rules unevenly.” The court—without Amy making any specific request for a negative-inference sanction[2]—then told Danny that his apparent untimely disclosure of the 2020 tax return was “a problem that leads [the court] to think that perhaps a negative inference should be drawn against you . . . because why wouldn’t you just turn over the information that is critical to the [c]ourt’s determination on income since this is an income case?”

¶14      Before ruling on the matter, the court wanted to know how much time had elapsed between the completion of Danny’s 2020 tax return and Danny’s disclosure of that return to Amy. Danny indicated that “[p]robably two months” had elapsed between completion and disclosure. The court then asked, “Why wouldn’t you have just disclosed [the return] immediately once you had them done? Why did you wait two months to disclose [it]?” Danny explained that he was looking for new counsel at that time and that his understanding was that his “obligation was to supply” those documents with his pretrial disclosures, twenty-eight days before trial, which he did. Danny also reminded the court—twice—that, at the conclusion of the November hearing, no specific deadline for disclosure of the tax return had been set. The court then, without prompting from Amy’s attorney, began to read from rule 26 of the Utah Rules of Civil Procedure, stating to Danny that, as soon as he learned that his disclosure was “incomplete,” he was required to “timely serve on the other parties the additional or correct information.”

¶15 After allowing both sides to argue the matter, the court determined that “at the end of the day,” Danny was the one who “didn’t disclose timely.” The court therefore told Danny that Amy “couldn’t have given you a full expert report, because you hadn’t given them the predicate information that was needed so the expert could do his or her job.”

¶16      After a recess to allow the parties one last opportunity to negotiate, the court considered what, if any, sanction should be imposed on Danny for his apparent untimely disclosure of his 2020 tax return. The court believed that it could impose any of the sanctions set forth in rule 37(b) of the Utah Rules of Civil Procedure. After argument, the court determined it would be “inequitable” to allow Danny “to go forward and argue” what he thought his income should be when he “deprived the other side of [the] complete and accurate financial information that their [experts] needed in order to present a complete picture” of Danny’s finances. It therefore ordered that, during the trial, Danny would be prohibited from refuting any evidence that Amy introduced about Danny’s income, and he would not be allowed “to introduce [his] own evidence in support of what [he] believe[d]” his income should be. Basically, the only thing that Danny would be able to do at trial would be to present or challenge evidence presented related to Amy’s income.

¶17      Concerning Amy’s experts, the court determined it would be appropriate to allow them to testify as fact witnesses. Amy ended up calling only one of the two expert witnesses she listed in her pretrial disclosures, a forensic accountant (Accountant). At the beginning of his testimony, Accountant was reminded that he was not permitted to give “expert opinion” because he would, as Amy’s counsel described it, be a “factual witness.”

¶18      During his direct examination, Accountant was presented with exhibits containing Danny’s tax returns—including his 2020 tax return—and other financial documents and was asked questions concerning those documents. For example, Accountant was asked about the purpose of lines “28 A and B” on one of the forms, and he responded, “Those are there to present to the IRS sources of income from businesses that the taxpayer owns.” At another point in the trial, Accountant was also asked whether the W-2 wage on another form was for Danny or if it was “a qualified deduction” from Danny’s company. Accountant responded it was “neither,” and that “the income from the business” would be different from the amount represented on the form “because [it] specifically calculates adjusted income for [that] specific tax deduction.” Direct examination of Accountant continued in this fashion, with him testifying about several line items contained in Danny’s tax returns and what information should or should not be contained therein.

¶19 Amy was the only other witness to testify at trial. After submission of the evidence, Amy’s attorney made a closing argument. The court then went back and forth with Amy’s attorney, discussing the various figures that had been presented and what implications they might have on the calculation of child support arrearages going back to the date Amy filed her petition. After completing the calculation, the court made an oral ruling that, for child support purposes, Danny’s monthly income was $42,555 (as opposed to $8,837 under the original Decree) and that Amy’s monthly income was $6,265 (as opposed to $4,071 under the original Decree). Based on those figures, the court then calculated Danny’s ongoing child support obligation, as well as arrearages owed dating back to the month after Amy filed her petition to modify. Specifically, the court determined that Danny owed Amy $108,027 in back child support. Because of the “sizable back child support due and owing,” the court declined Amy’s request for attorney fees. A few weeks later, the court entered a written order memorializing its oral ruling.


¶20 Danny now appeals the court’s modification order. In particular, Danny challenges the court’s findings and conclusions regarding his own monthly income, and he asserts that the court’s determinations in that regard are infirm because it improperly sanctioned him and did not allow him to present evidence supporting his position or refuting Amy’s position on that issue. Thus, Danny’s appeal centers on the court’s application of Utah rules regarding discovery, disclosure, and sanctions.

¶21      A district court’s interpretation of the Utah Rules of Civil Procedure is reviewed for correctness. Hansen v. Kurry Jensen Props. LLC, 2021 UT App 54, ¶ 19, 493 P.3d 1131. For this reason, a court’s decision regarding the adequacy of a party’s disclosures is reviewed for correctness. See Butler v. Mediaport Ent. Inc., 2022 UT App 37, ¶ 17, 508 P.3d 619 (stating that “we review for correctness the district court’s conclusion that [a party’s] disclosures were inadequate, because that determination is at root a question of interpretation of” the applicable rules).

¶22      But when a district court’s interpretation of the applicable rules is correct, we extend “a great deal of deference” to the court’s decisions regarding its choice of sanctions, and we will only disturb such rulings “if abuse of discretion is clearly shown.” Raass Bros. Inc. v. Raass, 2019 UT App 183, ¶ 11, 454 P.3d 83 (quotation simplified). Similarly, we review deferentially a “district court’s decision to admit or exclude evidence,” including its “determination regarding the admissibility of expert testimony” for an abuse of discretion. Northgate Village Dev., LC v. City of Orem, 2019 UT 59, ¶ 14, 450 P.3d 1117 (quotation simplified). A court’s determination that a witness’s testimony is “not expert testimony” is similarly reviewed for an abuse of discretion. State v. Rothlisberger, 2006 UT 49, ¶ 8, 147 P.3d 1176.


¶23      Danny’s primary challenge on appeal concerns the district court’s imposition of sanctions, which he contends were unwarranted. For the reasons discussed herein, we find merit in Danny’s position, and agree that the court erred by imposing rule 37 sanctions on Danny.

¶24 There are two different rules of civil procedure that concern discovery sanctions: rule 26 and rule 37. These two rules, “although couched in different terms,” are both “aimed at encouraging good faith compliance with the discovery obligations imposed under the rules of civil procedure and both provide the court with the authority to sanction those who fail to live up to the requirements of those rules.” PC Crane Service, LLC v. McQueen Masonry, Inc., 2012 UT App 61, ¶ 34, 273 P.3d 396. But despite certain commonalities, the sanctions available pursuant to these rules are different and have distinct prerequisites.

¶25 The sanctions that a court may impose pursuant to rule 26(d) are narrow, but they are also “automatic and mandatory” when the prerequisites are met. See Eskamani v. Auto-Owners Ins. Co., 2020 UT App 137, ¶ 48, 476 P.3d 542. That rule provides, in relevant part, as follows:

(4)   If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document, or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.

(5)   If a party learns that a disclosure or response is incomplete or incorrect in some important way, the party must timely serve on the other parties the additional or correct information if it has not been made known to the other parties. The supplemental disclosure or response must state why the additional or correct information was not previously provided.

Utah R. Civ. P. 26(d)(4), (5).[3] Thus, when a party fails to comply with rule-based disclosure requirements, that party is “presumptively barred” from relying on that witness, document, or material at trial. See Dierl v. Birkin, 2023 UT App 6, ¶ 31, 525 P.3d 127, cert. denied, 527 P.3d 1107 (Utah 2023). A party seeking sanctions under rule 26(d)—usually a party whose litigation opponent has failed to timely disclose a required item—does not need to file a motion for sanctions and obtain a court order beforehand; rather, sanctions under this rule are “automatic and mandatory” and do “not require a predicate discovery order.” Eskamani, 2020 UT App 137, ¶¶ 47–48. Courts should, upon request, presumptively impose sanctions for noncompliance unless “the party seeking relief from disclosure requirements” can demonstrate that its noncompliance was harmless or excused by good cause. Keystone Ins. Agency, LLC v. Inside Ins., LLC, 2019 UT 20, ¶ 18 & n.7, 445 P.3d 434; see also Utah R. Civ. P. 26 advisory committee notes (stating that sanctions are “the usual and expected result” of noncompliance).

¶26        But the sanctions available under rule 26(d) are narrow and specific: a party who fails to comply with rule-based disclosure obligations, and who cannot show harmlessness or good cause, “may not use the undisclosed witness, document, or material at any hearing or trial.” See Utah R. Civ. P. 26(d)(4). Rule 26, by itself, does not speak of or authorize any other sanction.

¶27        Rule 37, by contrast, is not self-executing: a party wishing to take advantage of its more expansive sanctions menu must first obtain a discovery order from the court. Subsection (a) of that rule allows a party to “request that the judge enter an order regarding any discovery issue.” Id. R. 37(a)(1). And subsection (b) allows a “court, upon motion, [to] impose appropriate sanctions for the failure to follow its orders.” Id. R. 37(b) (emphasis added). Interpreting the language of this rule, we have recently held that imposition of sanctions under rule 37 is available only for violation of a specific court order. See Eskamani, 2020 UT App 137, ¶ 49 (“Unlike rule 26, rule 37 conditions the availability of discovery sanctions upon the failure of a party to follow a discovery order.”).

¶28      But rule 37 offers a wide variety of sanctions options, and it allows for sanctions that can be more severe than the sanction authorized under rule 26. Where the violation in question is disobedience of a court order (as opposed to noncompliance with a rule-based disclosure requirement), rule 37 authorizes a court to (among other things) “deem [a] matter . . . to be established,” give an “adverse inference” instruction, order attorney fees, hold a party in contempt, or even dismiss a party’s claim or defense. See Utah R. Civ. P. 37(b)(1), (4)–(7). As relevant here, a court may also opt to “prohibit the disobedient party from supporting or opposing designated claims or defenses or from introducing designated matters into evidence.” Id. R. 37(b)(2).

¶29      In imposing sanctions on Danny, the district court applied rule 37. It read subsection (b) of that rule to Danny, and then walked the parties through the sanctions options provided by rule 37(b). After discussion, and after a brief break to allow additional negotiations, the court told Danny that he would not be “permitted to refute” any evidence Amy presented regarding his income, and that he would not “be permitted to introduce [his] own evidence in support of what [he] believe[s his own] income should be.” This is one of the sanctions listed in rule 37(b). See id.

¶30      But under these circumstances, this sanction was improper. Rule 37 is properly invoked only for violation of a court order, see id. R. 37(b); Eskamani, 2020 UT App 137, ¶ 49, and Danny was not in violation of any court order. The only potentially applicable order is the pretrial order that commanded the parties to disclose their trial exhibits—including, significantly, their latest tax returns and other updated financial information—at least twenty-eight days prior to trial.[4] Danny complied with this order when he submitted his 2020 tax return on or before February 1, 2022—which was at least twenty-eight days prior to the scheduled March 1 trial date.[5] And on appeal, at least, Amy makes no argument to the contrary.[6] In the absence of any evidence that Danny was in violation of a court order, the court was not permitted to impose sanctions on Danny pursuant to rule 37.

¶31        Danny’s sin, as perceived by the district court, was not the violation of any specific court order. Instead, the court was apparently upset with Danny for waiting some two months after the belated completion of his 2020 tax return to provide a copy of that return to Amy. This action was arguably a violation of rule 26(d)(5), which commands parties to “timely” supplement their initial disclosures. See Utah R. Civ. P. 26(d)(5).[7] Courts certainly have authority to punish untimely supplementations. But such punishment must be imposed pursuant to rule 26(d) and not—in the absence of a violation of a court order—pursuant to rule 37(b).

¶32        Under rule 26(d), the court could have penalized Danny for his two-month disclosure delay, but any such penalty should have been limited to preventing Danny from “us[ing]” the 2020 tax return “at any hearing or trial.” See id. R. 26(d)(4). Even if we were to assume, for purposes of the discussion, that under rule 26(d) the court properly barred Danny from introducing that document on his own account, we are aware of no rule or authority that would allow the court to bar him from introducing other properly disclosed evidence about his income, or from attempting to rebut evidence about his income that Amy introduced at trial. In this vein, we note that, during her evidentiary presentation at trial, Amy introduced Danny’s 2020 tax return into evidence; Danny should not have been barred from engaging with that evidence once Amy voluntarily elected to introduce it. Thus, under the circumstances, the district court’s sanctions order was improper and unduly punitive.

¶33      And in this situation, the court’s improper sanctions order prejudiced Danny. Prejudice is demonstrated when a party shows that the court’s error “impacted the outcome of the dispute.” In re Western Ins. Co., 2022 UT 38, ¶ 55, 521 P.3d 851. In other words, a party is prejudiced if “there is a reasonable likelihood that, absent the error, the result would have been different.” Id. (quotation simplified). Danny asserts that his income is actually less than half of what the court found it to be after the one-sided evidentiary presentation, and he argues that, had he been able to present evidence as to his income, the court would not have made the same determination in that regard. Danny asserts that, if he had not been sanctioned, he would have presented (among other things) his earlier tax returns and evidence regarding his “necessary business expenses,” and would have been able to demonstrate that certain income had been improperly attributed to him. Danny plausibly contends that this would have likely made a difference, and here on appeal, Amy makes no argument to the contrary. And it appears that the district court more or less agreed with this notion, at one point stating that the sanctions imposed were “almost the equivalent of a default.”

¶34 In sum, then, the court entered an improper and unduly punitive sanctions order against Danny. That order prejudiced Danny because it prevented him from meaningfully engaging with the court and with Amy on the subject of his own income; absent the sanctions order, we think the court likely would have reached a different conclusion regarding Danny’s income. Accordingly, we vacate not only the court’s sanctions order but also its modification order (the order containing its findings regarding Danny’s income), and we remand this case to the district court for a new trial on Amy’s petition to modify.

¶35 Our opinion could end here. But we elect to address one of Danny’s other criticisms of the court’s handling of Amy’s petition to modify, in the hope that our guidance on this issue might prove useful on remand. See State v. Ogden, 2018 UT 8, ¶ 49, 416 P.3d 1132 (“Although it is unnecessary to our decision, we retain the authority to reach issues when we believe our analysis could prove helpful on remand.”); see also Young H2ORE LLC v. J&M Transmission LLC, 2024 UT App 10, ¶ 48, 543 P.3d 1264 (electing to “offer some guidance that we hope will prove useful” on remand where the issues in question “are certain to arise again”).

¶36 Danny asserts that the court acted improperly when it allowed Accountant to testify at trial as a “factual witness.”[8] We agree with Danny that Accountant’s testimony was improper.

¶37 After Amy made a late designation of expert witnesses (which the court eventually authorized Amy to do), Danny asked for a report from those witnesses, including Accountant, in lieu of taking their depositions. But despite certain initial incorrect representations from Amy’s attorney to the contrary, Amy never provided Danny with any report from Accountant.

¶38      Expert witnesses from whom reports have been requested should not be allowed—absent a showing of good cause or harmlessness—to testify about matters not “fairly disclosed in” the requested reports. See Utah R. Civ. P. 26(a)(4)(B) (stating that expert witnesses “may not testify in a party’s case-in-chief concerning any matter not fairly disclosed in the report”); id. R. 26(d)(4); see also R.O.A. Gen., Inc. v. Chung Ji Dai, 2014 UT App 124, ¶ 11, 327 P.3d 1233 (stating that, “where it is undisputed that an expert witness report has been untimely filed, the proper inquiry is whether” the party’s failure to timely submit the report was “harmless” or excused by “good cause” (quotation simplified)), cert. denied, 337 P.3d 295 (Utah 2014). It follows, then, that an expert from whom a report has been requested but who has not provided one should not be allowed to testify at all, absent a finding of good cause or harmlessness, since nothing was “fairly disclosed” in any report. See Utah R. Civ. P. 26(a)(4)(B).

¶39        In this case, the district court allowed Accountant to testify, despite the fact that Accountant never provided an expert report to Danny. The court allowed this, at Amy’s request, on the ground that Accountant would not be asked to offer any expert opinion as to Danny’s income but, instead, would merely be “a factual witness” who would offer testimony about “what a line means on a tax return.” But the court never engaged in any analysis of whether Amy’s failure to provide an expert report from Accountant should be excused for “good cause.” See id. R. 26(d)(4). While Danny’s two-month delay in supplementing his initial disclosures with his 2020 tax return may have provided some cause for Accountant’s inability to timely form opinions regarding Danny’s post-2019 income, neither Amy nor the court ever offered an explanation as to why Danny’s delay in disclosing his 2020 tax return provided any cause for Accountant’s failure to provide a report containing opinions about what line items on a tax return mean.

¶40      And we are not persuaded by Amy’s effort to characterize this kind of testimony as “fact testimony.” As an initial matter, even fact witnesses have to be disclosed in a timely manner, and— although Amy did obtain permission to make a late expert designation of Accountant—Amy did not disclose Accountant as a fact witness in a timely manner. Any such disclosure should have been made in Amy’s initial disclosures, in order to give Danny the opportunity to depose (or seek other discovery from) the witness. It is not proper, absent specific leave of court, for a party to disclose a fact witness for the first time in connection with its final pretrial disclosures. After all, witnesses and exhibits disclosed in final pretrial disclosures are intended to be merely a subset of the witnesses and exhibits already disclosed earlier in the case. See Ader v. SimonMed Imaging Inc., No. CV-17­02085, 2020 WL 13442907, at *2 (D. Ariz. Sept. 22, 2020) (stating that, “[t]ogether, initial and supplemental disclosures reveal the full universe of potentially relevant evidence for every claim or defense,” and that in preparation for making final pretrial disclosures, the parties must then “sift through” that earlier-disclosed evidence to arrive at a “narrowed universe” of evidence “aimed at trial preparation”). Allowing a party to use its pretrial disclosures to introduce new evidence and new witnesses would therefore be contrary to the very purposes of rule 26. See Johansen v. Johansen, 2021 UT App 130, ¶ 18, 504 P.3d 152 (stating that where a party’s pretrial disclosures, submitted only “28 days before trial,” identified for the first time the witnesses that the party intended to rely on at trial, that disclosure was contrary to “the purpose of rule 26, which is to preclude parties from trying to gain an advantage by offering ‘surprise’ testimony at trial that has not been properly disclosed” (quotation simplified)); see also In re Morrissey, No. AP 20-2045, 2022 WL 666803, at *5 (Bankr. D. Utah Mar. 4, 2022) (noting that if a party “were permitted to treat the [pretrial disclosure] deadline as though it were the [initial disclosure] deadline, it would completely undermine the purposes of” the rule governing initial disclosures).

¶41 But more to the point, the testimony that Accountant ended up giving at trial was not fact testimony; it was expert testimony. A “fact witness” is someone “who has firsthand knowledge of something based on the witness’s perceptions through one [or] more of the five senses.” Fact Witness, Black’s Law Dictionary (11th ed. 2019). “Lay fact testimony”—which is the type of testimony that the district court and Amy assert that Accountant provided—is “factual testimony not based on scientific, technical, or other specialized knowledge.” State v. Rothlisberger, 2006 UT 49, ¶ 11, 147 P.3d 1176; see also Warenski v. Advanced RV Supply, 2011 UT App 197, ¶ 8, 257 P.3d 1096 (stating that testimony that is “clearly based on scientific, technical, or other specialized knowledge” should be considered as “expert testimony rather than fact testimony” (quotation simplified)), cert denied, 268 P.3d 192 (Utah 2011). A fact witness is thus only allowed to “testify in the form of fact or opinion” if the testimony “is helpful to the finder of fact” and is within the witness’s “personal knowledge or perception.” State v. Sellers, 2011 UT App 38, ¶ 26, 248 P.3d 70; see also Utah R. Evid. 701.

¶42        Here, Accountant had no firsthand knowledge concerning the family in general or about Danny’s income in particular, yet he was presented with various financial exhibits, including Danny’s tax returns, and was allowed to offer testimony about them. Amy’s attorney then questioned Accountant about certain line items in those documents. At one point, for instance, Accountant explained how a wage on a W-2 form was neither for Danny nor was it “a qualified deduction” from Danny’s company, because “the income from [Danny’s] business” would be different from the amount represented in the form which “specifically calculates adjusted income for [that] specific tax deduction.” We have no difficulty concluding that this sort of testimony was expert testimony, not fact testimony, because it was based not on Accountant’s own personal observations but, instead, on his “technical” and “specialized knowledge.” See Utah R. Evid. 701.

¶43      Accountant should not have been allowed to provide this sort of testimony under these circumstances. Despite the court’s stated intention not to “apply the [discovery] rules unevenly,” in our view that is exactly what happened here. The court imposed an inappropriately severe sanction on Danny, while at the same time allowing Amy to offer undisclosed expert testimony. We trust that, on remand, these errors will be corrected.


¶44      Because Danny did not violate any discovery or disclosure order, the court’s effort to sanction him pursuant to rule 37 was improper. In addition, the court erred by allowing Accountant to offer expert testimony without having provided a requested expert report. We therefore reverse the imposition of sanctions on Danny, vacate the court’s order modifying the Decree, and remand the matter to the district court for a new trial.

Utah Family Law, LC | | 801-466-9277

[1] Because the parties share the same last name, we refer to them by their first names for ease of reference, with no disrespect intended by the apparent informality.

[2] Prior to the trial, Amy had filed a document stating a general objection to Danny’s pretrial disclosures, asserting that some of Danny’s exhibits had not been disclosed “in a timely manner” and asking the court to enter an order barring Danny from using such exhibits at trial. Neither in that document nor at trial did Amy ask for a negative-inference sanction (at least not until after the court brought it up on its own).

[3] An earlier version of rule 37 contained a provision similar to rule 26(d)(4). See Utah R. Civ. P. 37(h) (2013). That provision was deleted in 2015, apparently because the drafters considered it redundant. See id. R. 37 advisory committee notes to 2015 amendment (“Former paragraph (h), which prohibited a party from using at a hearing information not disclosed as required, was deleted because the effect of non-disclosure is adequately governed by Rule 26(d).”). In the rules’ current iteration, this language appears only in rule 26(d)(4).

[4] Recall that the court itself—at the hearing at which it ordered a continuance of the November trial date—had been inclined to order a specific deadline for Danny’s disclosure of the belatedly prepared 2020 tax return, but ended up not doing so after both attorneys asked the court not to impose any deadline.

[5] This pretrial order was also in place in advance of the scheduled November 2021 trial date, and Danny was—at least temporarily— out of compliance with that order when he failed to hand over his 2020 tax return within twenty-eight days of the November trial date. He explained, however, that he was unable to generate the tax return because of software issues, and on that basis the court continued the November trial date, rescheduling the trial for March 2022. This continuance had the effect of curing Danny’s temporary noncompliance with the court’s pretrial order; as noted, Danny fully complied with it as it relates to the March 2022 rescheduled trial date.

[6] At trial, Amy’s attorney represented to the court that Danny’s disclosure of the 2020 tax return had been “[n]ot timely.” As discussed below, we generously interpret this as an allusion to Danny’s obligation to timely supplement his rule 26 disclosures. See Utah R. Civ. P. 26(d)(5). To the extent that this comment represented an assertion that Danny’s disclosure violated a court order, that assertion was inaccurate. Indeed, on appeal, Amy concedes that Danny produced his 2020 tax return to her “twenty-nine (29) days before trial.”

[7] 7. Conduct similar to Danny’s might, under some circumstances, also be a violation of rule 26.1(f), which provides that a party’s “[f]ailure to disclose all assets and income in the Financial Declaration and attachments” in a domestic relations action “may subject the non-disclosing party to sanctions under Rule 37.” See Utah R. Civ. P. 26.1(f). Indeed, Amy invites us to affirm the court’s sanctions order on this basis. We decline this invitation because, in our view, this alternative ground for affirmance is not apparent on the record. See Pentalon Constr., Inc. v. Rymark Props., LLC, 2015 UT App 29, ¶ 25, 344 P.3d 180 (“We will not affirm a judgment if the alternate ground or theory is not apparent on the record.” (quotation simplified)). As an initial matter, this argument is unpreserved; at trial, there was no discussion of rule 26.1 from any party or from the court, and there is no indication in the record that the court intended to base its sanction on rule 26.1(f). Moreover, it is far from apparent to us that the language of rule 26.1(f) authorizes rule 37 sanctions in the absence of a court order; certainly, Amy has not persuaded us that this is the case, especially given the plain language of rule 37(b) and our case law. See, e.g.Eskamani v. Auto-Owners Ins. Co., 2020 UT App 137, ¶ 49, 476 P.3d 542.

[8] Danny also complains that Amy never submitted initial disclosures, and that—despite a court order—she did not produce any documentation about a second source of income (rental properties). As near as we can tell from the record, Danny’s complaints are accurate. We see no need for further discussion of them here, however; Danny remains free to seek relief from the district court regarding these issues on remand.

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Why Your Witness May Not Be As Good As You Think By Braxton Mounteer

I recently went to trial with my boss for a divorce case. One of the things that stuck out to me was that quite often the witnesses people call in support of their claims and defenses aren’t nearly as helpful as they were expected to be. Why?

1)      Proximity of the witness to the parties or to the facts. I don’t mean physical proximity, but I do mean their personal relationships to the parties or to the events witnessed. These witnesses could be a mother, father, brother, sister, best friend, etc. Courts expect these kinds of people to be loyal, even to the point of a) being hopelessly biased and/or b) lying to help their friends/family members. Your mom’s not expected to be the most neutral or objective witness. Your brother droning on about how your spouse is the devil and you are a saint isn’t all that credible. I’m not saying such witnesses are worthless (you don’t want your mom or brother testifying against you, for example), but they aren’t the most helpful of witnesses.

2)      Your witness’s testimony isn’t engaging enough. A witness who testifies that he/she has never seen you treat your kids poorly is a witness who isn’t saying you treat your kids well. Yawn. A compelling witness is someone who witnessed you selflessly coaching the kids’ soccer team for years and who made a great impact for good in the team members’ lives. You want a teacher who can testify that you came to every parent-teacher conference and read with your child 20 minutes every night. You need that police officer who witnessed and arrested your spouse for trying to beat you with a bat. You need the boss who testifies what you are paid.

3)      Your witness didn’t witness anything first-hand. Your witness can’t get on the stand and tell the judge what he heard someone else say. That’s called hearsay, and with few exceptions, it’s not admissible as evidence.

What if you don’t have any witnesses beyond your immediate circle of friends and family? You can still call them as witnesses, and if they are credible people who don’t know a whole lot, you likely should call them as witnesses. No witnesses in your corner looks worse than mediocre witnesses who can testify believably of a few things.

Utah Family Law, LC | | 801-466-9277

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Rejecting Fact for Faith: the Inexplicable and Inexcusable Silencing of the PGAL’s Child Client

When a PGAL (private guardian ad litem) is appointed to represent children in a child custody dispute in a Utah divorce case, it would sure be good to know what the PGAL and the children actually said to each other (not merely believe, not trust any second-hand source’s claims as to what the children purportedly said, but know what the children said) by having a by having an audio and/or sound-and-video recording of the what the PGAL and the children actually said to each other. I am not aware of any evidence that proves or so much as suggests that having such a record is (is, not may be, but is) prejudicial or harmful to anyone.

The reasons why should be obvious.

I don’t have to believe you if you tell me that your fingerprints are not on the murder weapon. In contrast, I cannot deny your fingerprints aren’t on the murder weapon, when you show me the murder weapon has none of your fingerprints on it.

If you had an eye witness who could provide you with an alibi, you would need the witness himself to testify. You couldn’t say to the judge or jury, “Trust me, I have an eye witness, and if he were here, he’d tell you that Mickey shot Jerry, not me.” The only way to know if such a witness really exists and is not just a convenient figment of your imagination is to hear from the witness himself. Indeed, if you tried to speak for a phantom witness, that would be inadmissible hearsay. Objective fact is self-evidently more probative than unverified stories and claims. This is why we don’t rely on hearsay when we can hear first-hand from the witness.

You wouldn’t want people trying to put words in your mouth and misrepresenting what you do and do not say. It’s why the rule against hearsay exists, and for good reason. It’s why the public rose up and demanded bodycams for police (because the police were caught lying so much and chronically violating innocent people’s rights in the process). It’s why we need verifiable proof that medicine actually works and aircraft can safely takeoff, fly, and land before we use them.

Yet PGALs in Utah all but universally refuse to interview children on the record and oppose children being questioned by anyone else on the record. Instead, PGALs expect that everyone believe 1) what the PGAL claims to have asked the children in the PGAL’s interviews with them and 2) what the PGAL claims the children said in response 3) and to believe the PGALs without the children being subject to cross-examination. “Believe the PGAL on what basis?,” you may ask. Merely being appointed as a PGAL. That’s like expecting one to believe a witness in court merely because the witness swore an oath to tell the truth (which would be as unreasonable as it is irresponsible). Being a PGAL doesn’t render one incapable of lying or incapable of misperceiving or misremembering details. Being a PGAL free the PGAL from personal biases and prejudices that hamper impartiality and sound judgment.[1]

Even if someone subjectively believed a PGAL were infallible and could never lie and never misperceive reality, subjective belief would not make it so. It could not make it so. Subjective belief is inherently not, and inherently can never be, superior to objectively verifiable fact. 

Yet the courts indulge—and knowingly indulge—in this kind of thing all the time. “Trust that the PGAL is telling us the truth because he/she is a PGAL,” or “We don’t need to hear from the children directly, the PGAL speaks for them.” It would be one thing if a PGAL claimed to speak for a child client and the child client at least went on the record to verify, “Yes, what the PGAL just proffered is correct,” but we don’t even have that. Once a PGAL is appointed, the child is rarely—if ever—heard from himself/herself. Even when the child is willing to testify. I’m not kidding. I’m not exaggerating.

Sometimes we don’t have objective proof. Sometimes all we have to go on is believing (or not believing) someone’s word. But belief is plainly not the highest standard of proof (thank goodness). When we can rely on fact over faith, we are morally, intellectually, and legally obligated to do so. 

When accuracy and truth matter (and when do they not?) and if and when we can hear directly from that particular person himself/herself, no one should “trust” what anyone (not just you–anyone) says someone else allegedly said.

Any PGAL who would assert, “I have or could have objective verification for my claims, but I refuse to provide such verification; take my word for it,” is a PGAL no one can be obligated to believe. I ask sincerely: how can any PGAL or judge or commissioner who believes that the PGAL serves to silence a child client’s own voice be trusted?

Utah Family Law, LC | | 801-466-9277

[1] Indeed, if we took every word of the PGAL as gospel, we wouldn’t need a judge to do anything other than rubber stamp what the PGAL says. If the PGAL says the children claim Dad beat them, well then, that’s what the children said—after all, the PGAL says so. No need to inquire into whether the children were coached, coerced, brainwashed, or chose to lie. And because the law in Utah is construed to mean that children “represented” by PGALs are prohibited from speaking for themselves, no inquiry with the children on the record will ever take place. Does that look like “fact” finding, like due process, like a just and equitable process to you?

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You Can’t Tell What The Judge Is Thinking By Braxton Mounteer, Legal Assistant

I recently accompanied my boss to the trial of a divorce case. If I had had to place a bet on what the judge was thinking at given moment or what the rulings would have been during the trial or at the end, I would have left the courtroom much poorer. One of the things that struck me most about trial was my inability to determine the importance a judge gives to the evidence and to witness testimony. I could not consistently predict which way the judge was leaning at any given moment. But it’s not solely a matter of my inexperience with the legal system. My boss (who has considerable trial experience) told me he encounters the same thing.

We believe this is intentional on the judge’s part, that judges deliberately wear a poker face (some better than others). If a judge expressively reacted to a piece of evidence or to testimony, it might give a false (or true) indication that the judge is favoring one party over the other.

An actual trial is not like the movies and television shows would have you believe (at least at a divorce trial isn’t). There was no audible gasp from one side or the other when a piece of evidence was entered. The lawyers don’t (at least not typically) swagger around the court room cracking wise or orating so as to bring the room to tears. It really was just the evidence and argument from one party versus evidence and argument of the other.

Now a judge being inscrutable is not to say the judge sits stone-faced and silent until the trial ended. The judge can and usually will make clear and candid statements occasionally during the trial. Sometimes the judge will ask a witness questions of his or her own, but sparingly (judges are discouraged from doing too much of their own questioning). And the judge obviously must rule on objections raised during the questioning of witnesses too. During recesses, the judges and attorneys and sometimes even the parties and witnesses may chat about sports or local news to unwind a bit from the tension that builds up over the course of the trial. Some judges will essentially let the lawyers go until the time runs out. Other judges may inform the parties and their lawyers whether the direction they are taking the case in isn’t all that useful to the court in reaching its ultimate decision.

The notion of “reasonable minds can differ” stands out in stark relief at a trial. Sometimes what the lawyer tries to persuade the court to do and what the court decided are the same, but other times what the court did with the evidence can really surprise you. Keep that in mind when you’re convinced that the judge could not possibly rule any way but the way you favor. The better you understand all the possible arguments, the more accurately, reasonably, and persuasively you can make yours.

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2024 UT App 43 – domestic violence appeal

State v. Arce – 2024 UT App 43


STATE OF UTAH, Appellee, v. JOSE FELIPE ARCE, Appellant.

Opinion No. 20220006-CA Filed March 28, 2024

First District Court, Logan Department The Honorable Brandon J. MaynardNo. 191100762

Freyja Johnson, Emily Adams, and Hannah Leavitt-Howell, Attorneys for Appellant, assisted by law student Ryder Seamons[1]

Sean D. Reyes and Marian Decker, Attorneys for Appellee, assisted by law student Rebecca Barker

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.


¶1        A domestic dispute ensued on an emotional evening after Jose Felipe Arce had returned home from attending the birth of a child he believed he fathered as a result of an affair. Arce does not dispute that an argument occurred. He denies, however, that he hit or choked his spouse (Wife). This appeal centers on Wife’s statements near the time of the event and her complete recantation at trial. Arce claims numerous errors, including that the trial court should not have allowed the State to compel Wife to invoke her Fifth Amendment right 47 times in front of the jury, a deputy should not have been allowed to vouch for a particular version of Wife’s testimony, the State and a witness should not have used the word “victim” 29 times, and these errors cumulatively prejudiced him. Although we do not endorse the approach taken by the trial court or the parties, we affirm the convictions.


¶2           The State charged Arce with, and the jury convicted him on, one count of aggravated assault (domestic violence) and five counts of domestic violence in the presence of a child. At the center of this appeal are the different versions of events as related by Wife. We recite the facts in a light most favorable to the jury’s verdict. See State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346.

Alleged Assault and Wife’s Statements in the Subsequent Hours and


¶3           In July 2019, Arce visited the hospital for the birth of a child whom both Arce and Wife believed he may have fathered with another woman. Wife described the day as an emotional one filled with tears. When Arce returned from the hospital, the couple decided to take their kids swimming at a hot springs resort. The couple talked about the difficult situation on the drive there, with more crying from Wife. On the drive home, their conversation escalated into an argument while the children slept in the back seat. After Arce asked for forgiveness, Wife said she had forgiven him for “many things” but “this was just too much.” Arce pulled the car over, and Wife said that the two “couldn’t be together anymore.” Wife later told police and neighbors that after pulling over, Arce hit and choked her.

¶4          Arce then drove the family home, and he told the children to go inside. Wife later told police and neighbors that, as they continued arguing, Arce hit her, threw her to the ground, kicked her, pulled her hair, tried to choke her, and threatened to hit her with a beer bottle.

¶5          At this point, Wife ran to her neighbor’s (Neighbor) home. Neighbor could hear Arce yelling as she opened the door to find Wife out of breath, shaking, and crying. Wife was in a t-shirt with no pants. Neighbor and her husband (Neighbor’s Husband) believed Wife was seeking safety. Wife told them Arce was trying to hurt her. She also told the couple she wanted Arce out of the house. She then recounted the earlier fight that had happened during the drive home, including that after arriving home Arce had hit and kicked her and tried to choke her. Neighbor did not see any injuries on Wife. Neighbor’s Husband said that he saw “a red mark kind of on her collarbone on her left side.”

¶6          Neighbor’s Husband, a deputy sheriff, called police, who arrived fewer than ten minutes later. The responding officer (Deputy) interviewed Wife at Neighbor’s home that evening. Deputy testified that Wife appeared “extremely distraught,” “frantic,” and “emotionally distressed” and that she continuously wiped her eyes and nose from crying. During the interview, Wife told Deputy that Arce both struck and choked her. She also recounted that after returning home, Arce dragged her out of the car by her hair, threatened to hit her with a beer bottle, choked her, and slapped her. Deputy observed that the area under Wife’s right eye was “somewhat swollen” and that she had “some sort of reddish mark” on her collarbone that looked like it was beginning to bruise.

¶7          By that time, Arce had left the scene. Wife signed a request for a no-contact order and, with her children, went to emergency housing that the Deputy arranged. Wife also completed a lethality assessment. In the assessment, Wife indicated that she thought Arce might try to kill her. In an additional comment section, Wife noted that “having [Arce] at the home was a concern of safety for her.”

¶8          The following day, a police officer (Detective) interviewed Wife at her work. Wife again recounted the events, including Arce choking her, slapping her, grabbing her hair, throwing her to the ground, and threatening to hit her with a bottle. Wife also filled out a written statement during the interview with Detective recounting these same allegations. The top of the statement gave the following warning, “You are notified that the statements you are about to make may be presented to a magistrate or a judge in lieu of your sworn testimony at a preliminary examination. Any false statements you make and that you do not believe to be true may subject you to criminal punishment as a Class A Misdemeanor.” Wife signed the statement.

¶9          That same night, Deputy interviewed Arce by phone. Arce explained that he and Wife had taken the children to the resort “to have a good day” but Wife kept bringing up the infidelity and birth of the baby, so the two argued. Arce said that during the argument, he went through Wife’s phone, saw messages from another man, and asked, “[W]ho the f*** is this person?” When asked if he hit or choked Wife, Arce responded that he did not recall. Arce did, however, say that there was a miscommunication between them and that there was “some pushing and shoving.”

Wife’s Recantation and Testimony at Trial

¶10 The same day that Detective interviewed Wife, Deputy listened to a voicemail from Wife asking that all charges be dropped. When Wife later spoke with Deputy on the phone, she again asked that the charges be dropped. Wife explained that Arce “had a good job and that she needed help with the five children.”

¶11 At trial, Wife testified consistently with the prior statements she had made to law enforcement and her neighbors, however, she insisted that she made up the allegations of domestic violence against Arce. From the stand, Wife said, “This is why I wanted to just come up here because I hear all the charges and it’s really very selfish of me, you know. So this is why I’m sitting up here and I’m saying what really happened.” Wife testified that all the events occurred as she explained to law enforcement and the neighbors but that Arce never hit or choked her. Wife testified that after telling Arce they could not be together anymore, she told him to take her home, and he did. Wife testified that she opened the car door and sat on the edge of her seat while they continued arguing and yelling at one another but no physical altercation occurred.

¶12 When the State began asking her questions about police arriving the night of the incident and what she told them, the court stopped the questioning and excused the jury. The court explained to Wife that she had a right not to incriminate herself and that doing so would open her up to prosecution. The State asserted several times, “We won’t charge her.” The State also served Wife with a written notice of use immunity for purposes of the trial.[2] And the court provided her with the opportunity to speak with an attorney. Subsequently, Wife was appointed counsel.

¶13 Following a recess, the State asked that Wife be declared a hostile witness, allowing it to ask her leading questions, which the court granted. After speaking with his client, Wife’s counsel advised the court that Wife would be exercising her Fifth Amendment right moving forward. The State argued that the immunity it had offered Wife would protect her and that it was not the State’s intent “to ask the Court to hold [Wife] in this case in contempt” for refusing to testify. Wife’s counsel argued that the notice of use immunity was inadequate to protect her because it expressly did not grant immunity against a future perjury prosecution. The State again asked the court to treat Wife as a hostile witness. Arce’s counsel objected, arguing that the State knew weeks in advance that Wife might invoke her Fifth Amendment right. The State argued that knowing what Wife would do for weeks in advance was “a little bit of a stretch” and that its grant of use immunity was sufficient.

¶14        During further argument over whether to allow the State to treat Wife as a hostile witness, the State again said it would not seek to have the court hold her in contempt. The court ultimately granted the State’s request and received affirmation again from the State that it would not ask the court to hold Wife in contempt if she refused to testify.

¶15        The next day, the State retracted its written immunity offer and explained that it planned to ask Wife questions to which she could “choose to invoke the Fifth or to respond.” Wife’s counsel objected, arguing, “[T]he State’s going to try to . . . present their case by asking those questions and hearing the Fifth . . . . [T]hat’s just them trying to testify to the jury by the questions they’re asking.” The court disagreed, explaining that anything the State said was not evidence and that Wife could not make a “blanket” invocation of her Fifth Amendment right.

¶16 When Wife took the stand again, she invoked the Fifth Amendment 47 times in response to the State’s questions.[3] The State’s questions included asking Wife about the same things she had addressed the day before, prior to invoking her constitutional right to silence. Arce’s counsel did not object to or seek to limit the State’s leading questions or Wife’s invocations; neither did he request a mistrial.

Other Testimony at Trial

¶17 During the trial, the State called Neighbor, Neighbor’s Husband, Deputy, and Detective to the stand; each recounted the events and gave consistent testimony of the statements Wife made to them concerning the events during the evening in question— including the physical abuse she allegedly experienced at the hands of Arce.

¶18 During Deputy’s examination, the State asked, “And so ultimately what did your investigation lead you to believe happened that night?” Defense counsel made no objection. Deputy responded, “Based off all my observations and interview, I believe that the victim had been struck and choked and that there was a domestic violence assault that occurred.” The State then asked, “And I just want to emphasize, why is it that you believed that this truly happened?” Defense counsel again made no objection. Deputy answered,

I believe it truly happened given a number of things. Mainly, when I spoke to [Wife], she appeared to be honest and genuine in the emotion that she was describing things with was clearly emotional distress, upset that I’ve seen. And not every case is the same. I’ve seen other people who have been victims of assault act similar, so that’s why I believed it. She appeared to be honest and genuine.

¶19 During Detective’s testimony, the State moved to admit into evidence Wife’s written statement that was given under penalty of perjury, which the court allowed.

¶20 The State also called two expert witnesses. A clinical psychologist testified about patterns of domestic violence and that individuals experiencing abuse frequently stay in the relationship and/or recant their previous stories. And a pediatric nurse practitioner testified about strangulation, including that in over 50% of strangulation cases there are no visible injuries.

¶21 Throughout the trial, the State, Deputy, and Detective referred to Wife as “the victim” 29 times. And the State and its witnesses—primarily the clinical psychologist—used the term “victim” or “victims” generally an additional 45 times. The State also referred to Wife as the “alleged victim,” primarily during jury selection but also sporadically throughout the trial.

Closing Arguments and Verdict

¶22        In closing arguments, the State argued that the jury should believe Wife’s original statements to her neighbors and police as those were made instinctually to keep her family safe from a threat rather than out of “selfish[ness] or insincer[ity].” The defense argued that Wife had every reason to hate Arce but she wanted to set the record straight about her lies concerning the events of that night and that the State’s case fell apart without her lies.

¶23        During deliberation, the jury asked for access to the State’s “questions on day 2 to [Wife] when she pled the fifth.” The court did not grant the request.

¶24        The jury convicted Arce on all charges. Arce now appeals.


¶25 Arce raises three issues on appeal. First, Arce argues that the trial court incorrectly allowed the State to compel Wife to invoke her Fifth Amendment right 47 times in front of the jury. We give trial courts “broad discretion to admit or exclude evidence, including lay witness testimony, and will disturb [a trial court’s] ruling only for abuse of discretion.” State v. Perea, 2013 UT 68, ¶ 31, 322 P.3d 624 (cleaned up). But the trial court must correctly interpret and apply the law. Id. ¶ 30. We review “the legal questions underlying the admissibility of evidence” for correctness. Dierl v. Birkin, 2023 UT App 6, ¶ 15, 525 P.3d 127 (cleaned up), cert. denied, 527 P.3d 1107 (Utah 2023).

¶26 Second, Arce argues that he received constitutionally ineffective assistance of counsel when his counsel (1) did not seek to limit or remediate the continued questioning of Wife by objecting, moving to strike both the questions and invocations, or asking for a curative instruction; (2) failed to object to Deputy improperly opining on and vouching for the credibility of Wife’s report the night of the incident; and (3) failed to object to the State and witnesses referring to Wife as “the victim” 29 times during the trial. “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. Reid, 2018 UT App 146, ¶ 17, 427 P.3d 1261 (cleaned up), cert. denied, 432 P.3d 1225 (Utah 2018).

¶27 Finally, Arce argues that under the cumulative error doctrine, the evidentiary error and ineffective assistance of counsel Arce received should undermine our confidence in the outcome of the trial. “We will reverse a jury verdict or sentence only if the cumulative effect of the several errors undermines our confidence that a fair trial was had.” State v. Lopez, 2019 UT App 11, ¶ 22, 438 P.3d 950 (cleaned up).


  1. Evidentiary Ruling

¶28 Arce argues that the trial court improperly overruled Wife’s counsel’s objection to the State questioning Wife despite knowing that she would invoke her Fifth Amendment right. Here, the trial court did not expressly say why it allowed the State, knowing Wife would invoke her constitutional privilege, to continually examine Wife. After Wife met with counsel and determined that she would invoke her Fifth Amendment right moving forward, the State asked the court to declare Wife a hostile witness and allow the State to continue examining her with leading questions. Wife’s counsel objected to declaring her hostile, arguing that the State already knew she would invoke her right for each question, which would allow the State, in Wife’s counsel’s words, to “present their case by asking those questions and hearing the Fifth” and to offer testimony “to the jury by the questions they’re asking.” The court responded that “anything [the State] says isn’t evidence, so it doesn’t matter.” And Wife’s counsel responded that the court should not allow it precisely because the State’s questions would not be evidence. The court disagreed and determined that the State could ask questions and that Wife could invoke her right to every question if she wanted to but she had to testify “if it [had] nothing to do [with a topic] that would incriminate her.” The court further determined that Wife’s invocation of her Fifth Amendment right could not be invoked in a blanket fashion and that she would have to invoke it for each question, as there may be some she could answer.

¶29 The State argues that regardless of the court’s reasoning, the court did not err because Wife waived her privilege by testifying earlier and recanting her story.[4] We note that the State did not make this argument during trial. Alternatively, the State argues that Wife never had the privilege to begin with because the State provided her with immunity.[5]

¶30 Notwithstanding each parties’ arguments, our review of the record indicates that Arce did not preserve this issue. It is “well within our prerogative to raise a preservation issue on our own initiative when it provides an alternative basis for affirmance, even if the State failed to brief the preservation argument.” State v. Malo, 2020 UT 42, ¶ 20 n.7, 469 P.3d 982. In Cook Associates, Inc. v. Warnick, 664 P.2d 1161 (Utah 1983), our supreme court confronted “[w]hether an objection by one party properly preserves an objection on appeal as to another party.” Id. at 1164. The supreme court followed what “[v]irtually every other jurisdiction that has considered the question has concluded,” which is that “an objection . . . by one or more parties at trial does not inure to the benefit of other parties who do not join in the objection.” Id. at 1164–65. In State v. Calliham, 2002 UT 86, 55 P.3d 573, two brothers charged with murder were tried together. Id. ¶¶ 1–3. Following their convictions, one brother (Brother 1) appealed. Id. ¶¶ 18–19. As part of his appeal, Brother 1 argued that the trial court’s decision to admit specific evidence was an error that violated his constitutional rights. Id. ¶ 32. However, our supreme court held that this issue was not preserved for appeal, as it was the other brother (Brother 2) who had objected—an objection which Brother 1 did not join at trial. Id. ¶ 33. “[Brother 1] did not join in [Brother 2’s] objections on the record or make any objection of his own,” thus preventing him from claiming on appeal that it prejudiced him or undermined his constitutional rights. Id.

¶31 Similarly, in the case before us, Arce was not the one who objected to Wife taking the stand, knowing she would invoke her Fifth Amendment right for every question—it was Wife’s counsel who made the objection. Arce did not join that objection.[6]

Therefore, as in Calliham, Arce has not preserved the right to now claim on appeal that the court erred in its decision to allow Wife to testify, which in turn allowed the jury to hear her invocations 47 times.[7]

¶32        And the issue needed to be “preserved in order to give the trial court an opportunity to address the claimed error, and if appropriate, correct it.” Kell v. State, 2012 UT 25, ¶ 11, 285 P.3d 1133 (cleaned up). Here, the trial court had no such opportunity. It is readily evident from our review of the record that the trial court was not focused on the impact these Fifth Amendment issues would have on Arce. Instead, the trial court ruled on this issue through the lens of its impact on Wife. Had Arce objected, the trial court may have fully engaged in an analysis of whether Wife’s Fifth Amendment right was waived or abandoned as the State suggests. But Arce made no such objection, and therefore the court engaged in no such analysis.

¶33        “As a general rule, claims not raised before the trial court may not be raised on appeal,” and it is “well-established” that this “preservation requirement applies to every claim, including constitutional questions.” Conner v. Department of Com., 2019 UT App 91, ¶ 48, 443 P.3d 1250 (cleaned up). Despite Arce’s arguments that he preserved this issue, the record does not support his assertions, as “a party must raise [the issue] before the [trial] court specifically, in a timely manner, and with support by evidence and relevant legal authority, such that the issue has been presented to the trial court in such a way that the trial court has an opportunity to rule on it.” Id. (cleaned up). As discussed, the record does not reflect an objection from Arce on the issue but instead from Wife, which did not allow the court to review the issue as it pertains to Arce. Therefore, the issue is not properly preserved, and we do not consider the merits of his claim.

  1. Ineffective Assistance of Counsel

¶34        “To prevail on an ineffective assistance of counsel claim, a defendant must meet the two-prong Strickland test: (1) counsel’s performance was objectively deficient and (2) the deficient performance resulted in prejudice.” State v. Fleming, 2019 UT App 181, ¶ 9, 454 P.3d 862 (citing Strickland v. Washington, 466 US 668, 687–88 (1984)), cert. denied, 462 P.3d 803 (Utah 2020). “[D]eficient performance is not determined in a vacuum; rather, it involves asking whether the strategy [counsel] employed was that of a reasonable, competent lawyer in the real-time context” of a trial. State v. Wilkes, 2020 UT App 175, ¶ 24, 479 P.3d 1142, cert. denied, 485 P.3d 944 (Utah 2021). “However, even where a court cannot conceive of a sound strategic reason for counsel’s challenged conduct, it does not automatically follow that counsel was deficient. . . . [T]he 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. And a defendant establishes prejudice by showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. Gonzalez, 2021 UT App 135, ¶ 8, 501 P.3d 1205 (cleaned up). “That is, the defendant’s showing must undermine our confidence in the outcome.” Id. (cleaned up). The impact of such alleged errors must “be a demonstrable reality.” Id. (cleaned up).

¶35        “Because both prongs of the Strickland test must be met to establish ineffective assistance of counsel, we need not always address both prongs.” Fleming, 2019 UT App 181, ¶ 9 (cleaned up). “And if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice that course should be followed.” Gonzalez, 2021 UT App 135, ¶ 7 (cleaned up). Given the likelihood that similar events to those of this case can and will arise before the trial courts of this state, we address counsel’s alleged deficient performance, although we ultimately determine that Arce’s claims fail for lack of prejudice.

  1. Deficient Performance
  2. Invoking the Fifth Amendment

¶36 In addition to Arce’s arguments already discussed above regarding Wife’s invocation of her Fifth Amendment right, Arce argues that his counsel acted deficiently by not seeking to limit or remediate the State’s continued leading questions and Wife’s invocations by objecting, moving to strike both the questions and invocations, or asking for a curative instruction. Based on the reasoning in Mitchell v. United States, 526 U.S. 314 (1999), and In re Flint Water Cases, 53 F.4th 176 (6th Cir. 2022), competent counsel could reasonably choose not to take any of these actions, as Wife had waived her Fifth Amendment privilege by having voluntarily testified about the matter in question. A “witness . . . may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.” Mitchell, 526 U.S. at 321. “When the witness testifies, the privilege is waived for the matters to which the witness testifies.” In re Flint Water Cases, 53 F.4th at 193 (cleaned up). Thus, Arce’s counsel, and correspondingly the trial court, could have concluded that Wife did not have the right to invoke the privilege. Therefore, we determine that Arce fails to show deficient performance.[8]

¶37 Arce claims his counsel should have objected and pointed the court to rule 403 (excluding evidence which is substantially more prejudicial than probative), rule 510(c) (disallowing comment by a judge or counsel about, or a factfinder making an inference from, the invocation of a privilege), or rule 611(a) (allowing a court to control the examination of witnesses so as to avoid wasting time or the harassment or embarrassment of a witness) of the Utah Rules of Evidence. Arce makes no effort, however, to provide us with the context of Wife’s 47 invocations or the depth of her earlier testimony.[9] While Arce discusses Wife’s trial testimony prior to the court’s interruption to allow her to consult her counsel, he provides the court no comparison of that testimony with the subject matter of the questions asked on cross-examination when she began invoking the Fifth Amendment. As a result, the briefing leaves us with no understanding about whether all 47 invocations were directly addressing matters about which Wife had already testified—particularly her recantation. Assuming the questions were simply cross-examination of statements made earlier in trial, Arce’s counsel would have no basis for an objection because the privilege would be waived. Furthermore, without an understanding of the depth of Wife’s earlier testimony, we cannot gauge whether 47 invocations corresponded in an impermissible or potentially prejudicial way to Wife’s prior trial testimony. Within the confines of the briefing provided to us, we cannot fault Arce’s counsel for failing to object or make other efforts to limit the testimony.

¶38        Given that there is an obvious basis to believe that Wife no longer possessed a Fifth Amendment privilege and where the briefing does not delineate any context for the questions for which the privilege was invoked, Arce has not overcome the presumption that his counsel acted reasonably, and we cannot conclude that Arce’s counsel was objectively deficient in his representation. State v. Hart, 2020 UT App 25, ¶ 20, 460 P.3d 604 (stating that to prove deficient performance a defendant must overcome a “strong presumption that his trial counsel rendered adequate assistance” (cleaned up)), cert. denied, 462 P.3d 805 (Utah 2020). We acknowledge that there certainly could be circumstances where compelling a witness to invoke a privilege 47 times would be troubling, but we can reach no conclusion about counsel’s failure to object to these questions here.

  1. Witness Opining and Vouching

¶39        Arce further argues that his counsel performed deficiently by failing to object to Deputy opining on and vouching for the credibility of Wife’s statement the night of the incident. Rule 608(a) of the Utah Rules of Evidence “permits testimony concerning a witness’s general character or reputation for truthfulness or untruthfulness but prohibits any testimony as to a witness’s truthfulness on a particular occasion.” State v. King, 2010 UT App 396, ¶ 44, 248 P.3d 984 (cleaned up); see also State v. Adams, 2000 UT 42, ¶ 19, 5 P.3d 642 (detective testifying “he did not believe [the victim] was coached” was inadmissible vouching); State v. Jones, 2020 UT App 161, ¶ 14, 478 P.3d 1055 (per curiam) (“[A]dmission of testimony that bolsters the credibility of another witness’s testimony on a particular occasion is improper.”); id. ¶ 18 (officer testifying regarding interview techniques for domestic violence victims did not violate rule 608 because he did not opine on the victim’s truthfulness on a particular occasion); State v. Lewis, 2020 UT App 132, ¶ 26, 475 P.3d 956 (police sergeant describing variations he sees in victims’ statements when multiple accounts are given was not bolstering, as “he did not directly opine on [the victim’s] credibility”); State v. Cegars, 2019 UT App 54, ¶¶ 23–24, 440 P.3d 924 (school counselor testifying that she did not believe the victim would fabricate allegations was inadmissible bolstering); State v. Vail, 2002 UT App 176, ¶¶ 15, 17, 51 P.3d 1285 (detective testifying that two victims of child sexual abuse “exhibited the indicators that she equated with trustworthiness” was inadmissible bolstering); State v. Stefaniak, 900 P.2d 1094, 1095 (Utah Ct. App. 1995) (social worker testifying that a victim of abuse “seemed to be quite candid” in an interview was inadmissible vouching (cleaned up)). For example, an officer cannot comment on whether a witness appeared “to be genuine” during an interview, as it is a direct comment on the witness’s truthfulness and clearly violates rule 608. State v. Bragg, 2013 UT App 282, ¶ 31, 317 P.3d 452 (cleaned up). We emphasize again today that the State’s use of a law enforcement officer’s testimony for bolstering and vouching in this manner is inappropriate. We perceive no strategic reason that Arce’s counsel would reasonably fail to object to this testimony.

¶40 But even so, Arce can prevail only if he establishes both deficient performance and prejudice. And for the reasons set forth in Part II.B, we conclude that he was not prejudiced by this deficient performance.

  1. Referring to Wife as “the Victim”

¶41        Finally, Arce argues that his counsel performed deficiently by failing to object to the State and witnesses referring to Wife as “the victim” 29 times in front of the jury. Our supreme court “recognize[s] the gravity of referring to witnesses as victims during a trial.” State v. Vallejo, 2019 UT 38, ¶ 102, 449 P.3d 39. In cases, such as the one before us, “where a defendant claims that the charged crime did not actually occur, and the allegations against that defendant are based almost exclusively on the complaining witness’s testimony—the trial court, the State, and all witnesses should be prohibited from referring to the complaining witness as ‘the victim.’” State v. Devey, 2006 UT App 219, ¶ 17, 138 P.3d 90. Though in this case we do not exclusively rely on such testimony because there was a “sort of reddish mark” on Wife’s collarbone and Arce told Deputy there was “some pushing and shoving,” we still restate today that the action of referring to the complaining witness as “the victim” by anyone in front of the jury is inappropriate. Again, we perceive no strategic reason that Arce’s counsel would reasonably fail to object to this testimony.

  1. Prejudice

¶42        Ultimately, Arce has not shown that any of these alleged errors prejudiced him. There is not a reasonable probability that but for Arce’s counsel failing to object further to the State’s questioning of Wife, moving to strike, or asking for a curative instruction, the result of Arce’s trial would be different. As mentioned, the jury heard testimony from four witnesses, each of whom told the same story, namely, that Wife said Arce hit and choked her that night. The testimony of these four witnesses matched Wife’s own words in the statement she gave to Detective. Furthermore, the reason Wife provided to Deputy for dismissing the charges was not that she had lied but that she needed Arce to keep his job as well as his help with their children. As we point out above, even Arce in his statement to Deputy admitted there was “some pushing and shoving,” which is inconsistent with Wife’s recantation. And Arce did not explicitly deny that he hit, kicked, or choked Wife, instead stating only that he could not recall doing so. Most reasonable jurors would think that physical assault is something that one would remember having committed. Furthermore, and perhaps most convincingly, Wife’s own statement to Detective was entered into evidence for the jury to read. In short, finding that none of these alleged errors undermines our confidence in the outcome of this case, each of Arce’s claims of ineffective assistance of counsel fails for lack of prejudice. Moreover, because none of these alleged errors were sufficiently prejudicial alone, we, for the same reason, conclude that the errors do not cumulatively undermine our confidence in the outcome of the trial.[10]


¶43 Arce’s claim that the court erred by allowing the State to repeatedly compel Wife to invoke her Fifth Amendment privilege in front of the jury fails because the issue was not preserved. Furthermore, Arce’s claims of ineffective assistance of counsel fail because his counsel’s failure to object to Wife’s invocations, Deputy’s vouching for Wife’s credibility, and repeated references to Wife as “the victim” do not present a reasonable probability that but for Arce’s counsel’s failure the result of the proceeding would have been different. We therefore affirm Arce’s convictions.

Utah Family Law, LC | | 801-466-9277

[1] See Utah R. Jud. Admin. 14-807 (governing law student practice in the courts of Utah).

[2] A “grant of use immunity [prohibits] any prosecutorial use of [a witness’s] testimony or evidence gained from it” against the witness. State v. Morris, 2017 UT App 112, ¶ 17, 400 P.3d 1183, cert. denied, 409 P.3d 1049 (Utah 2017).

[3] The State argues that she invoked the Fifth Amendment 45 times, but the discrepancy of two invocations is not dispositive in this case, so we will use Arce’s number moving forward.

[4] Though we make our decision on preservation grounds, it appears the State is correct that a witness cannot testify about a subject and later invoke a Fifth Amendment privilege in order to avoid cross-examination on that same topic. See Mitchell v. United States, 526 U.S. 314, 321 (1999); In re Flint Water Cases, 53 F.4th 176, 193 (6th Cir. 2022). This issue is addressed further below. See infra ¶ 36.

[5] The State argues that a valid claim of privilege “turns in part on the likelihood of future prosecution.” A witness may not “employ the privilege to avoid giving testimony that he simply would prefer not to give,” Roberts v. United States, 445 U.S. 552, 560 n.7 (1980); instead, the witness must face real—not remote or speculative—dangers, Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472, 478 (1972). Therefore, a grant of immunity nullifies the witness’s privilege as it forecloses the possibility of subsequent prosecution. State v. Morris, 2017 UT App 112, ¶ 18, 400 P.3d 1183, cert. denied, 409 P.3d 1049 (Utah 2017). Here, the State argues that while it did withdraw the written immunity offer, the offer was “irrelevant” as the State put on the record several times that it would not seek to have the court hold Wife in contempt for refusing to testify. We do not agree and fail to understand how a promise not to seek to have a trial court hold Wife in contempt is sufficient to rise to the level of granting her “effective blanket immunity,” as the State argues. Wife still faced the very real danger of prosecution for perjury, for which the State offered her no protection. Thus, the State did not provide Wife with immunity—either written or through promises not to charge her with contempt—and Wife’s Fifth Amendment privilege remained intact. However, the State is likely correct that the right had been waived for subjects about which she freely had already testified. And, as discussed, this issue was not preserved, so there is no need for further consideration of whether allowing the State to continue questioning Wife was an error and, if so, whether there was a reasonable likelihood of a more favorable outcome for Arce absent the questioning.

[6] Arce acknowledges that it was Wife’s counsel rather than his own who made the objection to Wife taking the stand knowing she would invoke her Fifth Amendment right. Despite this, Arce argues that the issue is preserved by primarily relying on Kell v. State, 2012 UT 25, 285 P.3d 1133. But Kell is distinguishable from the present case. In Kell, the question was whether an issue was preserved when the State opposed a criminal defendant’s rule 60(b) motion and the criminal defendant did not respond to the State’s arguments yet later sought to appeal the decision. Id. ¶¶ 9– 10. The State and a criminal defendant are not in an analogous adversarial position to the criminal defendant and nonparty witness, Wife, present here. Kell is simply inapposite.

[7] Arce does not claim the application of any exception to preservation.

[8] Arce points to State v. Bond, 2015 UT 88, 361 P.2d 104, for us to consider. But Bond is not particularly helpful here. The witness in Bond did not attempt to invoke his Fifth Amendment privilege to avoid answering a question regarding a subject about which he had testified previously. Id. ¶ 10Also, the analysis in Bond must be viewed in context. In Bond, the Utah Supreme Court was reviewing the denial of a motion for a mistrial—a trial court decision reviewed under an abuse of discretion standard—and an allegation of prosecutorial misconduct. Id. ¶¶ 13, 22. Thus, unlike the case before us, Bond does not address these issues as evidentiary rulings.

[9] We acknowledge that Arce has appended a transcript containing the invocations to his brief. But beyond the appendix, Arce’s brief makes no attempt to address the context of the invocations—referring to them only as a whole rather than providing any information as to the subject matter of the questioning that provoked them. Arce does not attempt to explain, for example, if one, two, or three questions might be permissible. Neither does he explain at which point the line would have been crossed to render his counsel’s inaction objectively unreasonable.

[10] “The cumulative-error doctrine requires us to reverse if (1) we determine, or assume without deciding, that two or more errors occurred and (2) we determine that the cumulative effect of those errors undermines our confidence that a fair trial was had.” ConocoPhillips Co. v. Utah Dep’t of Transp., 2017 UT App 68, ¶ 30, 397 P.3d 772.

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Doing What’s Best for Children by Refusing to Hear From Them on the Subject (And Other Nonsense).

Recently an attorney posed a question on a forum for fellow Utah family law attorneys. The question involved how to find out what the children’s experiences have been with one of their parents (this parent was dealing with some personal demons) and what kind of contact they should have with that parent.

I responded on the forum that if this isn’t a scenario in which both the commissioner and the judge should be interviewing the children themselves, so that those who hold the fates of these children in their hands have the best possible idea what is going through these children’s minds at this time, what they have experienced, how they feel, what they desire, and whether those desires are in line with their best interests, then there is never an appropriate time for the court to interview children.

Who could gainsay that?

Many tried (and failed).

One attorney who responded to my suggestion commented that this would be the worst time for a judge or commissioner to interview the children but did not explain why. This attorney claimed that a private guardian ad litem (PGAL) should be appointed for, and to interview the children, instead. I asked for an explanation, and further commented by asking what ostensibly makes judges and commissioners so innately bad at interviewing children, and what makes PGALs innately so good at it? I don’t know where the myth of the angelic, “child whisperer” PGAL and the demonic, “couldn’t interview a child effectively if his/her life depended on it” judge dichotomy came from, but it’s nonsense.

Another attorney (like many who comment on this subject) commented that children should never be interviewed or even “exposed to the legal system unless absolutely necessary” without identifying a scenario in which it would be “absolutely necessary”. This attorney claimed that because minor children’s brains are developing that being interviewed by a judge or commissioner  “is incredibly damaging to the child.” In response to that comment I asked, “Where’s the evidence?”

The response I got was similar to what everyone says to me in response to that same question:

  • “every single child development book ever created, academic case studies, nonprofits that specialize in it, etc.” advises against judges or lawyers interviewing children.

o   This is false (which should come as no surprise when any speaks in those kinds of absolute terms), but it’s widely believed (or asserted as believed) in the family law profession.

  • “Commissioners and judges are not specifically educated in this area of law as those who practice it day are.”

o   But that argument erroneously presumes

  • that unless a judge, commissioner, or lawyer is “specifically educated” in how to talk to children about what they have experienced, how they feel, what they desire, and whether those desires are in line with their best interests, that judge, commissioner, or lawyer will inexorably make a mess of interviewing the child; and
  • that those who are (or are “certified” as) “specifically educated” in how to talk to children are incapable of being incompetent child interviewers.
  • When I responded with, “Well, if it’s so obvious and the research so voluminous and overwhelming, please cite it,” I got this in response: “You can do the research yourself.”

The legal system needs to stop believing that which is untested in the name of “protecting children.” It was widely accepted as fact in America that tomatoes were poisonous to humans. It was not until Robert Gibbon Johnson (no relation to me) ate a tomato on the courthouse steps of Salem, New Jersey in 1820 that he proved otherwise. Dispelling that myth has been a culinary and economical boon to the entire world.

I recently deposed a 14-year-old child in a parent time dispute case. She was not only willing to testify but was grateful for the opportunity to have her voice heard and her viewpoint considered. She was a particularly compelling and credible witness. The evidence she provided could not have come from any other source. After her deposition the case was resolved in a week.

The notion that any child testifying in any child custody or parent-time dispute case does terrible damage to any and every child is simply not true. I know this because I have deposed children to the benefit of child and truth seeking alike.

Blanket prohibitions on child testimony (on the grounds that they are nothing but harmful to all children) are not only false, they are also contrary to fundamental concepts of fact finding and subserving the best interest of the child.

I know that eliciting child testimony is not harmful to all children because I have real world data to the contrary. And not just someone else’s claims, but my own experience.

It has, unfortunately, become an article of faith in Utah family law practice that child testimony does more harm than good. That has not been my experience. I am one of the few attorneys in Utah who has that experience. It is therefore hard for me to give unverified claims the same weight as my own experience. I would be lying if I asserted that child testimony inexorably and/or irreparably harms most (let alone all) children. Blanket prohibitions on child testimony are antithetical to fundamental principles of our legal system, i.e., diligent investigation, careful, impartial analysis, real respect for children’s rights and best interests, and honest judgment.

Utah Family Law, LC | | 801-466-9277

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Some hard truths about divorce litigation in Utah.

To those of you who ask, “How did I lose that argument in my divorce case? The judge couldn’t say why he/she believed my witness(es) over my spouse’s witness(es)!”:

A district court “may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation simplified), cert. denied, 412 P.3d 1257 (Utah 2018).

To those of you who ask, “How could the court dismiss the opinions of my expert witness?”:

“Courts are not bound to accept the testimony of an expert and are free to judge the expert testimony as to its credibility and its persuasive influence in light of all of the other evidence in the case.” Barrani v. Barrani, 2014 UT App 204, ¶ 4, 334 P.3d 994 (quotation simplified).

Utah Family Law, LC | | 801-466-9277

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How Could I Use Transcripts of a Victim Impact Statement to Show the Other Party Has Told Lies in Court and Cannot Be Trusted to Be Honest?

If the statement:

  • is a sworn affidavit or in a form accepted by the court as equivalent to a sworn affidavit; and
  • the content of the affidavit/statement is relevant to the issues before the court in your particular proceeding (“relevant” means the evidence “tends to make the existence of any fact of consequence to the action more or less probable than it would be without the evidence”),

then you likely can submit the statement to the court and have the court admit it as evidence, with the content of the affidavit/statement treated like any other admissible testimony.

Utah Family Law, LC | | 801-466-9277

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What are some ways to not appear judgmental as a lay witness?

What are some examples of how to not appear judgmental as a lay witness in court?

  1. Tell the !@#$% truth, not stories you hope will dupe the court into doing what you want or what the party who called you as a witness wants. Tell the truth. It’s your legal obligation (and if that’s not enough to persuade you, perjury is a crime). 
  2. Meaning: state what you know, not what you were told, not what you believe, not your opinions, not lies. Just what you personally witnessed. 
  3. Listen to the questions posed to you, so that you know what information is being elicited from you. 
  4. Simply answer questions, and answer questions simply. 
    • Most questions are yes/no questions, which means that the only proper possible answers to a yes/no question are: “yes,” “no,” or “I don’t know.” 
    • Do not, do not, do not try to answer yes/no questions with rambling stories. 
    • Do not, do not, do not try to answer with rambling stories questions that ask you to describe a thing or event. As Sgt. Joe Friday said (constantly) on Dragnet: “Just the facts, ma’am.” 
  5. Study in advance what it’s like to testify in court (you won’t, but you’ve been warned just the same). I don’t use the word “prepare” as a synonym for “contrive”. Don’t “prepare” to lie. Do prepare by understanding the process and the dynamics of being questioned, under oath, on the witness stand, in court (or in a deposition), by an attorney. The more prepared you are to testify as a witness, the less surprised, confused, nervous, and jittery you’ll be. The better testimony you will give. Read articles and books about testifying in court. Watch YouTube videos of people being questioned in court and in depositions. Understand this process. If you think you’re ready to testify without preparing in advance, you’re a fool. 

Utah Family Law, LC | | 801-466-9277  

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Examples of how to not appear judgmental as a lay witness.

What are some examples of how to not appear judgmental (or worse) as a lay witness in court?

  1. Tell the !@#$% truth, not stories you hope will dupe the court into doing what you want or what the party who called you as a witness wants. Tell the truth. It’s your legal obligation (and if that’s not enough to persuade you, perjury is a crime).
  2. Meaning: state what you know, not what you were told, not what you believe, not your opinions, not lies. Just what you personally witnessed.
  3. Listen to the questions posed to you, so that you know what information is being elicited from you.
  4. Simply answer questions, and answer questions simply.
    • Most questions are yes/no questions, which means that the only proper possible answers to a yes/no question are: “yes,” “no,” or “I don’t know.”
    • Do not, do not, do not try to answer yes/no questions with rambling stories.
    • Do not, do not, do not try to answer with rambling stories questions that ask you to describe a thing or event. As Sgt. Joe Friday said (constantly) on Dragnet: “Just the facts, ma’am.”
  5. Study in advance what it’s like to testify in court (you won’t, but you’ve been warned just the same). I don’t use the word “prepare” as a synonym for “contrive”. Don’t “prepare” to lie. Do prepare by understanding the process and the dynamics of being questioned, under oath, on the witness stand, in court (or in a deposition), by an attorney. The more prepared you are to testify as a witness, the less surprised, confused, nervous, and jittery you’ll be. The better testimony you will give. Read articles and books about testifying in court. Watch YouTube videos of people being questioned in court and in depositions. Understand this process. If you think you’re ready to testify without preparing in advance, you’re a fool.

Utah Family Law, LC | | 801-466-9277

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Does saying after an answer “I truly believe that”, “it truly is”, damage your credibility as a lay witness in court or is it better to don’t add this type of qualifiers?

First, whether you “truly believe” something or “find it hard to believe,” testifying to something you believe or don’t believe, as opposed to testifying as to something you know, is the first and biggest problem. 

Testifying about something you believe (but do not know) is inadmissible testimony. Testifying based upon belief (as opposed to personal knowledge)—whether you testify that you “believe” or “don’t believe” a thing to be true, is known in legal parlance as “speculative” and speculative testimony is objectionable and inadmissible. Speculation is no different than guessing, and it would be frightening unfair to decide a case based upon beliefs, instead of based upon facts. 

Second, and somewhat ironically, trying to qualify or bolster your statement to make it more believable may have the opposite effect. Adding qualifiers to your testimony may raise the question as to why you would add them. For example, if you were to answer a question with “To be honest, I do(n’t) know,” use of the phrase “to be honest” is unnecessary. So, one could (could, not must, but could) infer that someone who starts a statement with “to be honest” may often answer questions dishonestly as a general matter, which is why the person distinguishes between when he/she speaks honestly and when he/she does not. So why introduce the doubt as to your credibility at all when there is no need to do so? Better to say merely “I don’t know” and “yes” and “no” than to say, “To be honest, I do(n’t) know” or “To tell the truth, I do(n’t) know”. 

Many people have the linguistic tic or affectation of responding to questions with the phrase “I believe” when in fact such people are not guessing or speculating but know. Imagine a situation where when the witness left the office on a particular day is a crucial fact to be established. Imagine that the witness knows precisely when he/she left the office that day, i.e., 5:15 p.m. When such a person is testifying and says, in response to the question as to what time he/she left the office at the end of the day, “I believe I left the office at 5:15 p.m.,” then the witness is needlessly confusing the judge and/or jury. Saying, “I believe” before making a statement of fact changes that statement of fact into a statement of speculation, a guess. 

Utah Family Law, LC | | 801-466-9277  

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Am I held to what I said first as a witness, even if I immediately corrected my mistake once I realized it?

It is not merely a question of how quickly the witness corrects his or her answer.

Sometimes a lawyer will ask a witness for precise details simply not because those details crucial to resolving a particular issue but simply because the more details a witness recalls the more the judge or jury may believe the witness has a particularly good memory and can thus be trusted that much more.

If the case depends upon whether an event did or did not take place on a Monday (or a Thursday), and the witness knows that, then a witness can damage his/her credibility by giving contradictory responses to the question. Unfortunately, even if it’s an honest oversight or slip of the tongue, the higher the stakes, the less tolerance there is for errors.

Still, it is better to correct what you stated in error than to stick to a false story to—ironically—avoid looking like a liar. to borrow from Mark Twain, better to tell the truth and risk being branded a liar than to bear false witness knowingly and thus remove all doubt.

Utah Family Law, LC | | 801-466-9277

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In court cases, how does taking an oath make any difference?

In court cases, how does taking an oath make any difference?

From what I can tell, yes, it appears that taking an oath or affirming to tell the truth before being questioned as a witness in a legal proceeding (whether in court or whether the testimony is being given in relation to the court proceedings) does make a difference because lying under oath or affirmation is an element of the crime of perjury. No oath or affirmation, no perjury.

Lying without being under oath or affirmation can still be a crime or otherwise punished by law in other settings other than a court proceeding (for example, lying a law enforcement officer), so bear that in mind.

Clearly, the purpose of questioning a witness in a court proceeding is to gather factual and/or honest (truthful) information to help the court decide the case. Some information is factual, meaning it is not in dispute, it can be independently verified as true. Other information is “honest,” meaning that it may not be true but the witness believes what he or she is saying is true and is doing his/her best to testify as to what he/she remembers.

If one can be convicted of lying in court or in relation to court proceedings without having sworn an oath or affirmed to tell the truth I do not know of such a law (but that’s not to say such a law does not exist). Why one cannot be convicted of lying in court without having sworn an oath or affirmed to tell the truth I do not know.

I see no good reason why a law could simply be passed that any witness is guilty of perjury if the witness, when, after first being notified that the witness is questioned in the course of or in relation to the court proceedings, the witness makes a false statement of a material fact; and knowledge of the falsity made in a proceeding, or in relation to a matter, within the jurisdiction of the tribunal or officer before whom the proceeding was held or by whom the matter was considered.

Utah Family Law, LC | | 801-466-9277

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My parents filed an order of protection against me. Is there any way I can fight this at age 17 knowing that I’ve done no wrong?

My parents filed an order of protection against me. Is there any way I can fight this at age 17 knowing that I’ve done no wrong?

Your experience may be different, but welcome to what may be an experience that causes you to lose faith in the legal system. You are significantly at your parents’ and the system’s mercy.

The likely first strike against you: given your age, you can be treated much like an adult when it comes to penalties yet denied the freedom to present your case as you wish because of your status as a minor child.

The second strike against you: courts generally do not like hearing from children in almost any law suit and go out of there way to curtail their participation. Now in fairness, in may instances this is intended to protect children and in many instances it does have that effect. In other instances, however, it serves to do nothing but muzzle a child, denying him/her the full capacity to defend himself/herself or express his/her concerns, fears, and desires. The testimony and/or arguments of children, merely on the basis of their being children, are often dismissed as not competent or credible witnesses.

The third strike is that you’re a wild, scary 17-year-old child, boiling with hormones and irresponsibility, which makes it very easy 1) not to be taken seriously; and 2) to be on the receiving end of prejudice, especially when your parents accuse you of being a danger to them.

Bottom line: to say, “Trying to go it alone as a child in court is difficult” is a ridiculously glaring understatement. The unquestionably best thing you can do for yourself is to get a skilled lawyer of your choice, if you can, to defend you within the legal system and to protect you from the vagaries of the legal system. Nothing else will 1) do you and your case more good and 2) better improve your odds of being treated fairly.

Utah Family Law, LC | | 801-466-9277

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In re J.R.H. – 2020 UT App 155 – witness credibility, sufficiency of evidence

J.R.H., Appellant,
STATE OF UTAH, Appellee.

No. 20190419-CA
Filed November 13, 2020

Fourth District Juvenile Court, Spanish Fork Department
The Honorable F. Richards Smith
No. 455453

Bryson King and Douglas J. Thompson, Attorneys for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

HARRIS, Judge:

¶1        After a bench trial, the juvenile court found that J.R.H.—a juvenile—had committed assault, and therefore the court adjudicated J.R.H. delinquent. J.R.H. appeals, challenging the sufficiency of the evidence supporting the court’s adjudication. We affirm.


¶2        One afternoon, a teenage boy (Victim) made plans, via the online messaging app Snapchat,[2] to meet another boy he knew (Buyer) on a public street after school to sell a “vape pen.” Victim was dropped off by a friend’s mother near the arranged meeting spot; there is no evidence that either the friend’s mother or Victim’s own parents knew that Victim either possessed or intended to sell a vape pen. As Victim walked toward the meeting spot, he was approached not by Buyer but by two other juveniles, who—according to Victim’s testimony at trial—both proceeded to beat him up and take the vape pen. In a police interview immediately following the incident, as well as at trial, Victim identified J.R.H. and J.R.H.’s cousin (Cousin) as the two juveniles who assaulted him. It is undisputed that Victim was assaulted; indeed, Cousin later admitted to administering the beating. But J.R.H. has consistently denied any involvement, and the main contested issue at trial was whether J.R.H. had participated in the assault along with Cousin.

¶3        At trial, the court heard testimony from four witnesses: Victim, J.R.H., J.R.H.’s mother (Mother), and Cousin. Other than a photograph of Victim’s injuries, there was no documentary evidence. Victim testified that, earlier on the day of the assault, he received harassing Snapchat messages from both J.R.H. and Cousin. Prior to that day, Victim had never met Cousin in person, and had had only one brief in-person interaction with J.R.H., at a high school basketball game a few months prior. After receiving the threatening Snapchat messages, Victim stopped communicating with J.R.H. and Cousin, but testified that, using a feature of the Snapchat app, his Snapchat “friends” could still ascertain his exact location. As Victim approached the spot where he was supposed to meet Buyer, two kids on bikes— whom Victim later identified as J.R.H. and Cousin—rode over to him and began shouting at him and asking if he was “J,” which is his Snapchat username. After Victim responded in the affirmative, both J.R.H. and Cousin began assaulting him. According to Victim, J.R.H. tackled Victim and repeatedly punched him and Cousin kicked him in the face, causing Victim to start “blacking out.” Victim testified that J.R.H. and Cousin ceased their assault when some passersby noticed the altercation and yelled, at which point J.R.H. and Cousin took the vape pen out of Victim’s backpack and left the scene. Victim testified that, later that day, some of his other friends sent him pictures that J.R.H. and Cousin posted on social media, indicating that they had beat up Victim. According to Victim, one of the photos posted by J.R.H. was captioned, “I love you [Cousin]. Thanks for jumping . . . some guy with me to get this.”

¶4        That same day, Victim contacted police to report what happened, and told an officer that both J.R.H. and Cousin had assaulted him. However, Victim did not tell the officer anything about the vape pen, and even at trial he initially dissembled about his reasons for meeting Buyer, not wanting to admit that he had been there to sell a vape pen. Victim explained that he held that part back because he didn’t want either the officer or his parents to know that he was trying to sell a vape pen.

¶5        J.R.H. testified that he took no part in the assault. According to him, it was Cousin (and not Buyer) who had made arrangements to buy a vape pen from Victim, and J.R.H. testified that he and some other friends went to the meeting spot with Cousin to wait for Victim. But J.R.H. testified that he and the other friends left the scene before Victim arrived, while Cousin stayed behind alone. He testified that any assault was committed by Cousin alone, and that he played no part in it. This was the same account he gave to an investigating police officer in an interview that took place a few months after the incident.

¶6        Mother provided some evidence supportive of J.R.H.’s account, testifying that on the day in question J.R.H. and the other friends returned home several minutes before Cousin did. Cousin also corroborated J.R.H.’s account, testifying that he was the one who arranged to buy the vape pen from Victim, and that he was the only one who assaulted Victim, noting that he had admitted to the offense in separate juvenile court proceedings. However, Cousin acknowledged that, when he had first been contacted by police about the incident, he had “basically lied” and stated that he “had nothing to do with” the assault.

¶7        During his cross-examination of Cousin, the prosecutor noted that Cousin had been “laughing” while he was testifying “about beating this guy up,” and offered his perception that  J.R.H. appeared to think “it was pretty funny” also.[3] Referencing this behavior, the court later stated that it was “really disgusted with the attitude that’s being exhibited in the courtroom today” and specifically addressed Cousin, stating that his attitude was “totally inappropriate.”

¶8        During closing argument, the prosecutor framed the case

as a credibility contest, stating that it “boil[ed] down to a he-said-he-said sort of . . . situation.” J.R.H.’s counsel agreed that the main issue was credibility, spending significant energies during closing argument to assert that Victim was not a credible witness. After the conclusion of the arguments, the court found that the State had met its burden to “prove its case beyond a reasonable doubt,” and adjudicated J.R.H. as “responsible for the assault as charged.”[4]


¶9        J.R.H. appeals, challenging the juvenile court’s conclusion

that he committed the assault. His appellate challenge contains two components. First, J.R.H. asserts that Victim’s testimony was “inherently improbable” and that the juvenile court should have “disregard[ed] it.” See State v. Robbins, 2009 UT 23, ¶ 16, 210 P.3d 288.[5] Second, and relatedly, J.R.H. asserts that there was insufficient evidence to support a finding that he committed assault. “When reviewing a juvenile court’s decision for sufficiency of the evidence, [an appellate court] must consider all the facts, and all reasonable inferences which may be drawn therefrom, in a light most favorable to the juvenile court’s determination,” and we reverse “only when it is against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made.” In re V.T., 2000 UT App 189, ¶ 8, 5 P.3d 1234 (quotation simplified); see also State v. Carrell, 2018 UT App 21, ¶ 21, 414 P.3d 1030 (“We will reverse a guilty verdict for insufficient evidence only when the evidence is so inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crimes of which he was convicted.”).



¶10      J.R.H. first asserts—citing State v. Robbins, 2009 UT 23, 210 P.3d 288—that Victim’s trial testimony was inherently improbable, and that the juvenile court should therefore not have considered it in making its delinquency determination. Usually, courts are not “in the business of reassessing or reweighing evidence” already considered by a factfinder, and “conflicts in the evidence” are almost always resolved “in favor of the jury verdict.” State v. Prater, 2017 UT 13, ¶ 32, 392 P.3d 398 (quotation simplified). But our supreme court has carved out a narrow exception to this general rule, under which a court may choose to disregard a particular witness’s testimony as “inherently improbable,” a condition that is present where testimony is “incredibly dubious and . . . apparently false.” See Robbins, 2009 UT 23, ¶¶ 13, 18. However, a trial court may do so “only in those instances where (1) there are material inconsistencies in the testimony and (2) there is no other circumstantial or direct evidence of the defendant’s guilt.” Id. ¶ 19. Indeed, “[t]he existence of any additional evidence supporting the verdict prevents the judge from reconsidering the witness’s credibility.” Id.; see also Prater, 2017 UT 13, ¶ 38 (explaining that the Robbins court, in disregarding testimony, relied on “the inconsistencies in the [witness’s] testimony plus the patently false statements the [witness] made plus the lack of any corroboration”).

¶11 We have recently emphasized that the Robbins exception is “narrow” and that “[i]t is difficult to successfully establish such a claim on appeal.” See State v. Cady, 2018 UT App 8, ¶¶ 17– 18, 414 P.3d 974; see also State v. Rivera, 2019 UT App 188, ¶ 23 n.6, 455 P.3d 112 (stating that “[a] case which actually falls within the Robbins-Prater rubric is exceedingly rare,” and noting that “we have not found a single Utah decision examined under that rubric that has reversed a verdict since Robbins”). In particular, our supreme court has refused to apply Robbins to garden-variety credibility questions, such as which witness to believe, or which version of a witness’s conflicting account to believe. See Prater, 2017 UT 13, ¶ 39 (“The question of which version of their stories was more credible is the type of question we routinely require juries to answer.”); see also Robbins, 2009 UT 23, ¶ 19 (stating that the Robbins exception does “not allow defendants to challenge witness testimony for generalized concerns about a witness’s credibility” (quotation simplified)).

¶12 The situation presented here by the conflict between Victim’s version of events and J.R.H.’s version of events is a typical credibility contest that does not implicate the concerns that were present in Robbins. Victim’s testimony was neither “incredibly dubious” nor “apparently false,” as opposed to the testimony of the alleged victim in Robbins. See Robbins, 2009 UT 23, ¶¶ 17–18, 22–23. There is nothing incredibly dubious about one teenager beating up another one to obtain something of value, such as a vape pen. And the account Victim gave at trial, while perhaps not airtight in its detail, was nowhere close to “apparently false.” See id. ¶¶ 17–18.

¶13      Moreover, there was other evidence to corroborate at least portions of Victim’s account. See Prater, 2017 UT 13, ¶ 38 (stating that a “lack of any corroboration” is required to implicate a Robbins-level inconsistency (emphasis added)); see also Robbins, 2009 UT 23, ¶ 19 (“The existence of any additional evidence supporting the verdict prevents the judge from reconsidering the witness’s credibility.” (emphasis added)). Victim, Cousin, and J.R.H. all testified to being in the same area, on the same day, and at the same time, and all described knowledge of a transaction in which Victim was to sell a vape pen. And it is undisputed that Victim was in fact assaulted; not only do photographs support Victim’s testimony on that point, but Cousin admitted to committing the assault. Certainly, not all points of Victim’s testimony are corroborated by other evidence; in particular, there is no corroboration for his account of the most contested piece of evidence at trial: that J.R.H. participated in the assault along with Cousin. But “[c]orroborating evidence sufficient to defeat a Robbins 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.” State v. Skinner, 2020 UT App 3, ¶ 34, 457 P.3d 421 (quotation simplified); see id. ¶¶ 33–35 (holding Robbins inapplicable due to corroborating evidence, even though the corroborating evidence did not go to the chief contested issue in the case); see also State v. Crippen, 2016 UT App 152, ¶¶ 15–16, 380 P.3d 18 (stating that, “although [the defendant]’s statements during the jailhouse phone call” that he had engaged in sexual activity with the witness “were not evidence of a lack of consent, those statements do tend to corroborate [the witness]’s overall account,” and holding that the witness’s testimony was therefore “not inherently improbable”).

¶14 J.R.H. asserts that Victim’s testimony was inherently improbable because the State failed to present additional corroborating evidence—like text or Snapchat messages, or testimony from other potential eyewitnesses such as the passersby that, according to Victim, broke up the fight—and because Victim’s testimony contained other inaccuracies and inconsistencies, most notably his admission that neither his statements to police nor his initial trial testimony was completely truthful because he neglected to mention—apparently out of fear of punishment for possessing or selling an illegal item—the fact that he was attempting to sell a vape pen. But while these items certainly provide excellent fodder for cross-examination, and might even lead to a rational conclusion by another factfinder that Victim was less credible than the other witnesses, they do not add up to the sort of inherent improbability that the Robbins exception is designed to capture.

¶15      Accordingly, we reject J.R.H.’s argument that the juvenile court should have completely disregarded Victim’s testimony as inherently improbable under Robbins. The juvenile court did not err by implicitly determining that Victim’s testimony cleared the Robbins threshold, and by considering it in making its ultimate adjudication of delinquency at trial.


¶16 Next, J.R.H. challenges the sufficiency of the evidence supporting the juvenile court’s conclusion that J.R.H., along with Cousin, participated in the assault upon Victim. This challenge fails because Victim’s testimony alone—which does not fall under the Robbins exception and which the court properly considered—is sufficient to support the court’s conclusion.

¶17      Trial courts, including juvenile courts, have wide latitude to make credibility determinations, and we defer to such determinations, in part because trial courts have the opportunity to observe witnesses in a more fulsome manner than we do when we read their testimony only from a cold record. See, e.g., Sauer v. Sauer, 2017 UT App 114, ¶ 6, 400 P.3d 1204 (stating that appellate courts “give great deference to a trial court’s determinations of credibility based on the presumption that the trial judge, having personally observed the quality of the evidence, the tenor of the proceedings, and the demeanor of the parties, is in a better position to perceive the subtleties at issue than we can looking only at the cold record” (quotation simplified)); In re E.R., 2001 UT App 66, ¶ 11, 21 P.3d 680 (stating that juvenile courts have “wide latitude of discretion” in making determinations after hearing evidence, not only because they have the “opportunity to judge credibility firsthand” but also because they are specially trained in juvenile matters (quotation simplified)). In this case, there are certain aspects of the witnesses’ bearing that do not come through, at least not in the same way, to this court through the written trial transcript. In particular, the juvenile court expressed displeasure with the demeanor and outward expressions of at least Cousin, and perhaps also J.R.H., during the testimony, and appeared to take this into account when making its determination.

¶18 We recognize, as J.R.H. points out, that three witnesses testified on J.R.H.’s behalf, while only one witness—Victim— testified for the State. Even so, it is the factfinder’s prerogative to “believe one witness against many, and to decide in conformity with declarations which produce conviction in its mind, rather than follow the many, if it so desire[s].” See State v. Minousis, 228 P. 574, 577 (Utah 1924); see also Model Utah Jury Instructions 2d CV121 (Advisory Comm. on Civil Jury Instructions 2020), [] (“You may believe many witnesses against one or one witness against many.”).

¶19      In this case, the juvenile court heard all of the witnesses testify, and in so doing was able to observe the witnesses’ manner of speaking, demeanor, and other non-verbal modes of expression. After hearing the witnesses testify, and listening to the attorneys present closing arguments, the juvenile court credited Victim’s version of events over J.R.H.’s and Cousin’s versions. This determination was within the juvenile court’s discretion and is not against the clear weight of the evidence. Accordingly, we reject J.R.H.’s argument that insufficient evidence supported the juvenile court’s ultimate determination.


¶20 Victim’s trial testimony was not inherently improbable under Robbins, and therefore the juvenile court did not err in considering that testimony in making its delinquency adjudication. The juvenile court’s decision to credit Victim’s version of events was within the court’s wide discretion regarding credibility determinations, and the court’s ultimate decision was supported by sufficient evidence.

¶21 Affirmed.


Utah Family Law, LC | | 801-466-9277

[1] In an appeal from a bench trial in juvenile court, we view the evidence in the light most favorable to the juvenile court’s ruling, see In re J.E.G., 2020 UT App 94, n.1, 468 P.3d 1048; see also Issertell v. Issertell, 2020 UT App 62, n.2, 463 P.3d 698, and we recite the facts here with that standard in mind.

[2] “Snapchat is a social media messaging application, which allows users to create multimedia messages, such as a photograph or a short video, and edit that multimedia to include text captions and other effects. Users are allowed to share that multimedia, called ‘snaps,’ to a private or semi-public group of users.” United States v. Gordon, 339 F. Supp. 3d 647, 653 n.1 (E.D. Mich. 2018). Perhaps the most notable feature of Snapchat, as differentiated from other social media applications, is that the multimedia messages are automatically deleted soon after they are sent, unless saved by the user. See id. (“The primary concept behind the application is the capturing of moments: the multimedia created by users are only available for a short time before they become inaccessible.”).

[3] According to the transcript, the prosecutor stated that “J thought it was pretty funny over here.” The transcript omits the full names of the juveniles involved and refers to each of them by first initial, which leads to some potential confusion because both Victim and J.R.H. have names that begin with J. However, the best reading of the transcript—and certainly the one most in keeping with our duty to view the testimony in the light most favorable to the juvenile court’s findings—is that the prosecutor was referring to J.R.H. and not Victim as having laughed during Cousin’s description of the beating.

[4] The court made no additional findings, but none were required in this case. See Utah R. Juv. P. 44(a) (stating that, “[i]f, upon the conclusion of an adjudicatory hearing, the court determines that the material allegations of the petition are established, it shall announce its ruling,” but that “[i]n cases concerning any minor who has violated any federal, state, or local law . . . , findings of fact shall not be necessary”).

[5] As we did in State v. Jok, we elect not to address the issues— unbriefed by the parties—as to “whether, in a bench trial, the issue of inherent improbability needs to be specifically raised before the trial court in the first instance in order to preserve the issue for appeal,” and “whether the inherent-improbability doctrine applies at all to bench trial verdicts, where the trial court has presumably not only determined that sufficient evidence existed but that this evidence met the burden of proof beyond a reasonable doubt.” See State v. Jok, 2019 UT App 138, ¶ 20 n.8, 449 P.3d 610, cert. granted, 456 P.3d 386 (Utah 2019). In light of the fact that the State does not assert that J.R.H.’s inherent-improbability argument is unpreserved, or that the doctrine does not apply in appeals from bench trials, we simply proceed to address the argument on its merits. See State v. Malo, 2020 UT 42, ¶ 20 n.7, 469 P.3d 982.

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Can the courts force you to testify against someone?

Can the courts force you to testify against someone?

In a manner of speaking, yes. You do not have the the option of being a witness if you are ordered by the court to to testify.

The way you are ordered by the court to testify is by a subpoena.

If, in response to the subpoena, you attempt to refuse to come to court and/or testify, the court can hold you in contempt of court, which means it can take certain actions to make you suffer until you agree to testify.

That means that the court can fine you for refusing to testify in compliance with the subpoena.

It also means that if you refuse to come to court the judge can not only fine you, but it can issue a bench warrant to have the police go out and find and arrest you and put you in jail until you testify.

If you lie under oath as a means of avoiding testifying truthfully, that’s perjury, and if you are caught lying under oath you can be charged with a felony, which, if you were convicted, could or would result in fines and incarceration.

Utah Family Law, LC | | 801-466-9277

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What does a judge ask a child in a custody case?

In Utah (where I practice divorce and child custody law) the answer is: it’s almost impossible to say. Why?

  1. For reasons that I assert I can demonstrate are not highly rational*, the majority of judges are extremely reluctant to question children on the subject of the child custody award.
  2. Case files for child custody cases are classified as private and not accessible to the public, so unless the child is questioned in a public court proceeding (which happens so rarely one could honestly state that, statistically speaking, it never happens), we will never know (we can never know) what the child was asked or what the child said in response. Those judges who are willing to question children—as they are authorized by the Utah Code to do—almost never question children in public court proceedings but instead question them in chambers, although the questioning is conducted on the record and not covertly.
  3. The law gives judges the opportunity to avoid hearing directly from a child by instead appointing an attorney for the children known as a “guardian ad litem” and thus avoid ever actually hearing any testimony from the child’s own mouth by having the GAL claim to have spoken to the child, albeit not on the record (and thus there is no objectively verifiable way to confirm this), to have elicited from the child his/her experiences, observations, feelings, opinions, and desires (again, without there being any objectively verifiable way to confirm this) and then, based upon literally nothing that is objectively verifiable, make recommendations to the judge as to how the judge should rule on the issue of the child custody award.

*The ostensible reasons that most judges give for refusing to question children or allow children to be questioned by an attorney or attorneys are that they:

  1. A) fear that if parents find out what the child says, then the child may feel guilty for expressing a preference or preferences for one parent over another on particular subjects of parental abilities and fitness;
  2. B) fear that once parents discover what the child had to say the child may be punished or retaliated against if what the child said upsets or offends one or both parents; and/or
  3. C) conclude, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions.

Here is why I assert that such reasons are not rational:

1) First, parents are going to find out what a child thinks, feels, and wants with regard to child custody irrespective of whether the judge questions the child in court proceedings. Parents are going to learn of this (whether directly from the child or from his/her siblings, extended family members, friends, neighbors, teachers, counselors, coaches, ministers, etc.) before the child custody case is filed, during the pendency of the child custody case in court, at trial, and after the trial. It’s unavoidable. It’s inevitable. I submit that i) the belief that not questioning a child about his/her opinions and preferences regarding child custody will prevent the child’s parents from discovering those opinions and preferences, and ii) the believe that the only time and place in which the child will express such things is when questioned by the judge, is rather naive; it’s impossible to prevent parents from learning this information from and about the children.

Second, the value that many judges place on preventing children from feeling guilty or uncomfortable is misplaced. For two reasons. One, children who are going to feel guilty and uncomfortable about their child custody preferences, who are going to feel as though they are betraying a parent by expressing a preference for one over the other. are going to feel that way regardless of whether they express those preferences to the judge or a custody evaluator or a guardian ad litem (GAL). Two, getting to the truth about how children feel and why—when it comes to their child custody preferences—is far more important than sparing them from feeling guilty (especially when we already know they’re going to feel guilty regardless of whether they testify). Otherwise stated, preventing child testimony does no good: it protects the children from nothing, while denying the judge the clearest, purest sources of information about the children’s experiences, observations, feelings, opinions, and preferences as they relate to the child custody award.

2) If the judge believes that children will not be punished for expressing a preference for one parent over another, so long as those preferences are not expressed to the judge, again, that’s not rational either. It is impossible for a judge to prevent parents from learning a child’s feelings, opinions, and preferences regarding child custody. Thus it is impossible for a judge to prevent a parent who gets upset by those feelings, opinions and preferences from learning about them and from punishing and retaliating against his/her child once he/she learns of them. A judge can’t even mitigate the amount and severity of the retaliation and punishment because the judge is powerless to prevent the child’s feelings, opinions, and preferences from being discovered. And so once again, we find the court depriving itself of one of the clearest and purest sources of information and guidance on the subject of thee child custody award based upon a fear and a belief that has no rational basis. Closing one’s ears and eyes to what a child can say on the subject displays, frankly, a shocking disregard for the best interest of the child.

3) Concluding, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions. See self-fulfilling prophecy. While it is certainly true that some children may be, for various reasons (such as being too young to talk, too young to have a consistent and reliable understanding of right and wrong and truth and falsity, placed in circumstances that call the veracity or credibility of the child’s testimony into question from the outset, etc.), one sure way to guarantee that we never determine how informative, probative, and reliable a child’s testimony may be and what weight to give such testimony is to dispense with allowing the child to testify in the first place.

Utah Family Law, LC | | 801-466-9277

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I represent myself in family court: why does the judge ignore my evidence?

If I go into a custody hearing representing myself, how come the judge will not look at any of my evidence or even give me the chance to talk?

It’s due to at least one of the two following things:

Number 1 (and most likely): the “evidence” that you believe is important or that the court needs to see is either not admissible (because you filed it incorrectly or filed it late) or it is not relevant. Relevance is defined as follows:

Utah Rules of Evidence, Rule 401. Test for Relevant Evidence. Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.

When the judge rejects irrelevant stories and irrelevant documents and photographs, pro se litigants (“pro se” and “pro per” are terms for people who represent themselves without an attorney in legal proceedings) they think the court is “not listening to” or “not looking at” evidence when in fact the court is listening and considering the evidence but then rejecting it—and properly rejecting it—as irrelevant.

Additionally, the rules that govern the practice of law can be quite technical. And frankly, what many people believe to be relevant evidence is anything but. People who are not lawyers who go to court to argue their own cases usually end up wanting the court to hear and review stuff that isn’t very helpful to the court in its efforts to learn the facts and decide which party should win or lose.

Another problem with pro se litigants is their ignorance of laws and legal procedures. They don’t understand the procedures for making oral arguments in court, they don’t know how to make proper objections, they often end up filing the wrong documents, forget to file necessary documents, miss deadlines, etc. So if you’re going to try to represent yourself in court, make sure you have at least a solid rudimentary understanding of court rules and the rules of evidence. If you don’t get such a basic understanding under your belt before you go to court, you’d likely be much much better off hiring an attorney to assist and represent you.

Number 2 (and this shouldn’t happen, but it does happen far more often than you’d think): the court simply doesn’t like you, doesn’t take you seriously, has it in for you because you are a pro se litigant. Why?

(Now the next few words of mine that you’re about to read are not meant to offend you, they are simply meant to share with you some hard and unfortunate truths.)

First, the majority of pro se litigants are usually among the least intelligent of litigants. Pro se litigants are often poor and are often poor because they are not very intelligent and/or in many cases mentally ill. In fairness to our judges, it doesn’t take long for them to learn this for themselves. And thus, after many years on the bench, when they pick up a case file that involves at least one pro se litigant, most of these poor judges groan inwardly, and with good reason. Odds are that this is going to be a tough case because these pro se litigants don’t know the rules and don’t know the law which inevitably leads to procedural chaos, silly and long-winded arguments, and a lot of wasted time and wasted judicial resources. Dealing with these kinds of pro se litigants makes the job of being a judge miserable.

Second, there are many judges who take offense at the fact that someone would dare try to represent himself or herself without a lawyer. “It’s as though these pro se litigants think that they are just as good as those of us who went to college and law school without having to make the sacrifices those of us in the legal profession made.” It’s this way in a lot of other jobs and professions. Someone who can pick up the guitar and play like a master naturally is often envied and resented by those who have worked so hard to reach the same level. That’s not fair, but it is human nature, and there are a lot of judges who let this weakness cloud their impartiality and their judgment.

Utah Family Law, LC | | 801-466-9277

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State v. Rivera – 2019 UT App 188 – child abuse

2019 UT App 188 – State v. Rivera



No. 20180546-CA
Filed November 21, 2019

Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 161908011

Teresa L. Welch, Maren E. Larson, and Heidi Buchi, Attorneys for Appellant
Sean D. Reyes and Thomas B. Brunker, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.


¶1        A jury convicted Oyah Tongson Rivera on three counts of child abuse. The abuse involved Rivera repeatedly using pliers to pinch her three stepchildren. Physical examinations revealed scarring and cuts all over the children’s bodies. All three children told doctors, investigators, and others that Rivera inflicted the injuries. In later statements before and at trial, the children recanted. The jury nevertheless found Rivera guilty. We affirm.


¶2        In June 2016, three siblings—K.S., a boy age 12; F.S., a boy age 10; and H.S., a girl age 8—told their father (Father) that Rivera, their stepmother, had been abusing them.[2] The children told Father that when Rivera got angry with them, she would call them into her room, pull a pair of pliers out of a drawer, and pinch them repeatedly all over their bodies. After seeing the marks and learning that Rivera had forced K.S. and F.S. to beat H.S. the day before, Father consulted his attorney, who took the family to a YWCA. The YWCA called the police.

The Investigation

¶3        Police officers performed a welfare check at the house where the children were being cared for by their seventy-year-old, ill grandfather. The officers could see that the children had marks, scars, and cuts—some readily visible and some under their clothing—all over their bodies. The officers also saw large bruises on the sides of H.S.’s face. They then contacted Father and brought him to his house. Rivera was arrested that night.

¶4        The next morning, Father brought the children to meet with Child Protective Services (CPS) for initial interviews. CPS determined that the grandfather was not healthy enough to have caused the injuries. CPS also investigated Father by interviewing him on multiple occasions and repeatedly checking in on the children outside Father’s presence to verify their safety.

¶5        A few days later, a child abuse pediatrician (Doctor) conducted a physical examination of each child. As part of the exams, Doctor took a medical history. Each child separately told Doctor that Rivera had inflicted the marks on their bodies by using pliers to pinch them on multiple occasions. Specifically, K.S. told Doctor that the pinching occurred “once or twice a week” over the previous eight months. K.S. explained that when “something bad would go on inside [Rivera’s] head,” she would pinch them with the pliers. Doctor also observed scarring and cuts all over the children’s bodies, including on their arms, hands, chest, stomach, back, legs, and genitalia.[3]

¶6        In summarizing her conclusions of the physical exams, Doctor stated,

These three children gave a history of abusive behavior by their [step]mother, plier marks and scratches. They had multiple marks consistent with this. And I concluded that the marks were abusive in nature. I felt that was physical abuse and psychological abuse because this was repeated over time, both according to the history. And on physical [examination], we can say that there was more than one episode of abuse. I think that that’s psychologically bad because . . . these actions are akin to torture. And they would anticipate that it might happen again. I also feel that the boys being forced to hit [their sister], according to the history, is psychologically damaging.

¶7        A few days later, the children were each interviewed individually by a detective (Detective) at the Children’s Justice Center (CJC). K.S. told Detective that Rivera scratched, kicked, punched, and slapped the children, stating, “She does the same thing every time she gets angry. She slaps us, kicks us, [and] pinches us with pliers.” He also described other punishments: being hit in the head with a can of food; being beaten with a wooden ladle; having a water mug broken on his head; and being forced to kneel on uncooked rice, peas, and peppercorns while holding books in his outstretched arms. Finally, K.S. described an incident where Rivera ordered him and F.S. to punch H.S. for not reading the dictionary loudly enough.

¶8        F.S. recounted many of the same details at his separate CJC interview. He said Rivera pinched him with pliers or her fingernails when he did “the same mistake all over again and again” or when he did not “take responsibility when she’s not . . . around.” F.S. also revealed that Rivera ordered him and K.S. to punch H.S. in the face and torso.

¶9        In her CJC interview, H.S. revealed that Rivera pinched her with pliers all over her body, including her legs, her stomach, her arms, her torso, and her shoulders. When asked why Rivera pinched her with pliers, H.S. stated, “[B]ecause I never learn and I never talk to her and I never ask her, I never told her the things that I am doing . . . . I only say I will learn, I will learn, I will ask, I will ask, I will talk to her. And then I never do it. I forget.” H.S. also recounted the incident when Rivera ordered K.S. and F.S. to punch and slap her for failing to read the dictionary loudly enough.

¶10 When interviewed by CPS, Rivera admitted to “pinching [H.S.] with the pliers one time” and pinching K.S. “with her acrylic nails” as disciplinary punishment. Rivera complained that she was frustrated because Father was cheating on her, Father forced her to have sex, and she had to take care of the children—including homeschooling them—even though she was just their stepmother.

¶11 Later, when asked by Detective about the marks and bruises on the children, Rivera stated that “she wasn’t the only one that did this to the children.” She told Detective that she had “used force, like hurt [the children] physically, just so they obey me.” But she also expressed remorse, saying, “I know this is bad because I hurt them, but it’s not like I’m doing it for fun . . . . I don’t want to abuse the children.” However, Rivera refused to answer Detective’s questions about whether she ever used pliers to pinch the children. Regarding the dictionary incident, Rivera told an officer that K.S. is “the big brother. I don’t have to hurt [H.S.]—don’t have to hurt them. Let [K.S.] do it.” Finally, Rivera told Detective, “The incident that happened with [H.S.] . . . I was ready to surrender . . . . This is the worst thing I’ve ever [done].”

¶12 About two years later in April 2018, Doctor reevaluated the children shortly before the trial. Many of the marks had cleared; and although some remained, there was no indication of new injury from abuse. However, the children offered a different explanation to Doctor for the marks on their bodies from what they had told her two years earlier. H.S. told Doctor that Rivera was going to leave, so the children inflicted the injuries on each other “to make her feel sorry for them so she wouldn’t leave.” K.S. told Doctor the same thing: “We made up that [Rivera] did it, but really she was going to leave and we did it to ourselves so that she would feel sad for us and she would stay.”[4] F.S. told Doctor substantially the same story about the source of the injuries. When Doctor confronted him about the disparity, F.S. replied, “I never said that.” In her trial testimony, Doctor confirmed that it is not uncommon for children to recant allegations of abuse.

The Trial

¶13 At trial, the children repeated that they had caused the injuries to themselves. They explained that because Rivera and Father were constantly fighting, they feared Rivera was going to leave and reasoned that once she saw their injuries, she would feel sorry for them and stay. But much of the children’s testimony at trial conflicted. For example, K.S. said they came up with the plan to blame Rivera for the injuries when the police arrived, but he was unable to explain how they communicated their plan to each other on such short notice. F.S. said that the three children sat down and talked over the plan before the police arrived. With regard to coming up with the plan to pinch themselves, K.S. testified that he and H.S. formulated the idea in their bedroom and later told F.S. about it. F.S. testified that the three hatched the plan together in the living room. H.S. said K.S. made up the plan and told her and F.S. about it.

¶14 The children’s trial testimony was also significantly inconsistent with regard to how they received the injuries. Among these pervasive inconsistencies, K.S. testified that he alone pinched his own arms and stomach, but earlier he said F.S. had caused some of his pinch marks. F.S. testified that he didn’t want to pinch himself because he knew it would hurt, so he asked his brother to do it for him. But he later said that he pinched himself.

¶15 Rivera faced three counts of child abuse, one count of witness tampering, and one count of assault.[5] After the State closed its case-in-chief, Rivera moved for a directed verdict based on insufficiency of the evidence on all counts. Citing State v. Robbins, 2009 UT 23, 210 P.3d 288, Rivera argued that the “prosecution can’t be said to have proven their case beyond a reasonable doubt, because there [was] so much variance and differing between the testimony of all of [the witnesses] regarding what happened and who actually did what they did.” The district court granted the motion with respect to the counts for witness tampering and assault but denied it for the counts of child abuse.

¶16 Rivera then testified, denying that she ever pinched the children with pliers, forced them to hit each other, or made them kneel on objects. She also said that she first saw injuries on the children via Skype when she lived in the Philippines and they lived in Bahrain with Father. She said she went to Bahrain to be with the children because they were “reaching out” to her and because she believed they were being “tortured.” She testified that she agreed to marry Father because he said he could help her get a U.S. visa.

¶17      Father also testified at trial. He acknowledged that he had cheated on Rivera, but he denied ever hitting, biting, or using fingernails or pliers to pinch the children. Rivera’s son testified that he had seen Father discipline the children in Bahrain by slapping their faces and lifting them by their shirts. Rivera’s sister testified that she saw Father drop H.S. on a couch and “bit[e] her butt.”

¶18      The jury convicted Rivera of three counts of child abuse. Rivera appeals.


¶19 The sole issue on appeal is whether there was sufficient evidence to convict Rivera of child abuse where the three children testified at trial that Rivera had not pinched them, contradicting some of their pretrial statements, in which they stated that she had. Rivera argues that this lack of consistency between trial testimony and pretrial statements creates a situation in which the accusations against her are “too inherently improbable to support the verdict.” “When a jury verdict is challenged on the ground that the evidence is insufficient, we review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict.” State v. Hirschi, 2007 UT App 255, ¶ 15, 167 P.3d 503 (cleaned up). “And we will not reverse a jury verdict if we conclude that 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. Maestas, 2012 UT 46, ¶ 177, 299 P.3d 892 (cleaned up). Thus, “we may reverse a verdict only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he or she was convicted.” State v. Graves, 2019 UT App 72, ¶ 17, 442 P.3d 1228 (cleaned up).


¶20 Rivera contends that there was insufficient evidence to support her convictions for child abuse. Specifically, she argues that (1) the children testified at trial that Rivera did not abuse them, (2) her admission that she used her nails to pinch K.S. on one occasion does not constitute child abuse but is reasonable parental discipline, and (3) trial evidence supports the conclusion that Father more likely caused the scars on the children. In support of this claim, Rivera argues that the children’s pretrial allegations that she pinched them with pliers are “too inherently improbable to support the verdict.” In effect, Rivera urges us to determine that the children’s pretrial statements were inherently improbable and to rely only on the trial testimony. Thus, we first address whether the children’s statements were inherently improbable. Then, having determined that they were not, we consider whether there was sufficient evidence to support Rivera’s convictions for child abuse.

I. Inherent Improbability Exception

¶21 An appellate court is “not normally in the business of reassessing or reweighing evidence” and resolves “conflicts in the evidence in favor of the jury verdict.” State v. Prater, 2017 UT 13, ¶ 32, 392 P.3d 398 (cleaned up). Indeed, “there is perhaps no more axiomatic statement when reviewing jury verdicts than this: The choice between conflicting testimony is within the province of the jury.” State v. Cady, 2018 UT App 8, ¶ 23, 414 P.3d 974 (cleaned up). But “in some unusual circumstances we will conclude that the testimony presented to the jury was so unreliable that it cannot form the basis of a conviction.” Prater, 2017 UT 13, ¶ 32 (cleaned up). Such a rare circumstance exists when “the evidence is so inconclusive or inherently improbable that it could not support a finding of guilt beyond a reasonable doubt.” State v. Workman, 852 P.2d 981, 984 (Utah 1993).

¶22 In State v. Robbins, our supreme court articulated “the scope of the inherent improbability” exception. 2009 UT 23, ¶¶ 13, 19, 210 P.3d 288. A court can “reevaluate the jury’s credibility determinations only in those instances where (1) there are material inconsistencies in the testimony and (2) there is no other circumstantial or direct evidence of the defendant’s guilt. The existence of any additional evidence supporting the verdict prevents the judge from reconsidering the witness’s credibility.” Id. ¶ 19. In Prater, the court clarified the Robbins formulation of the inherent improbability exception by stating that it is “inconsistencies in the [witness’s] testimony plus the patently false statements the [witness makes] plus the lack of any corroboration that [allows a] court to conclude that insufficient evidence [supports a defendant’s] conviction.” 2017 UT 13, ¶ 38.

¶23 This “narrow” formulation of the exception found in Robbins and Prater presents “a significant barrier in succeeding on claims of inherent improbability.” Cady, 2018 UT App 8, ¶¶ 17–18. Thus, “[i]t is difficult to successfully establish such a claim on appeal.” Id. ¶ 18; see also State v. Doyle, 2018 UT App 239, ¶ 17, 437 P.3d 1266 (stating that “the inherent improbability [exception] has very limited applicability and comes into play only in those instances” that satisfy the approach adopted in Robbins and Prater (cleaned up)); State v. Ray, 2017 UT App 78, ¶ 25, 397 P.3d 817 (“‘Inherent improbability’ . . . does not apply more generally to cases involving a victim’s incredibility—not even significant incredibility.”), cert. granted on other grounds, 406 P.3d 250.[6]

¶24 Just as the court in Robbins plainly stated that any additional evidence supporting the verdict would preclude a judge from reconsidering a witness’s credibility, Robbins, 2009 UT 23, ¶ 19, under Prater, if an appellant fails to show all three elements—material inconsistencies plus patent falsity plus lack of corroboration—a judge is likewise precluded from reconsidering witness credibility, 2017 UT 13, ¶ 42 (stating that a court may find witnesses’ testimony inherently improbable only when “no other circumstantial or direct evidence support[s] the defendant’s guilt” (cleaned up)); see also State v. Crespo, 2017 UT App 219, ¶ 27, 409 P.3d 99 (stating that under the inherent improbability exception, the credibility of a witness’s testimony may be reassessed only when such testimony “is the sole evidence that a crime was even committed and there is a complete lack of circumstantial evidence” (cleaned up)). On appellate review, because all three elements of the inherent improbability exception must be met under Prater, where we identify that any one of them is missing, the claim of inherent improbability fails.

¶25      Rivera’s claim of inherent improbability fails because the children’s pretrial statements were corroborated. Rivera argues that the children’s statements lack corroboration because (1) no testimony was presented at trial of anyone—other than the children—seeing Rivera inflict the injuries, (2) Rivera’s pretrial admissions of using force against the children constituted reasonable parental discipline, and (3) physical evidence was lacking since the pliers were never tested for Rivera’s fingerprints. But in making this claim, Rivera ignores other evidence that supports the verdict.

¶26 The children uniformly reported the abuse—and identified Rivera as having inflicted it—to Father, to Detective during the CJC interviews, and to Doctor. See Prater, 2017 UT 13, ¶¶ 13, 43 (noting the consistent testimony among the three witnesses). In addition, the details in the children’s statements about the abuse corroborated each other. Each child told of Rivera using pliers to pinch them, and the children all recounted the incident of Rivera telling the brothers to beat their sister. And insofar as physical evidence is concerned, the photographs taken during the physical examinations reveal numerous scars consistent with having been pinched by pliers on multiple occasions. Indeed, Doctor, after examining the extensive scarring on the children’s bodies, described the abuse they suffered as “akin to torture.” And Rivera downplays her pretrial admissions of abusing the children. She admitted to pinching H.S. with pliers and pinching K.S. with her nails. When confronted about the scars and marks on the children, Rivera justified herself by saying that “she wasn’t the only one that did this to the children.” Finally, she admitted that she told the brothers to discipline H.S. for not reading the dictionary loud enough.

¶27 In sum, the children’s pretrial statements, made during the investigation, were corroborated. Therefore, they cannot be characterized as inherently improbable.

II. Sufficiency of the Evidence

¶28 “In considering an insufficiency-of-evidence claim,” an appellate court will not reverse a jury verdict provided it can “conclude that 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. Maestas, 2012 UT 46, ¶ 177, 299 P.3d 892 (cleaned up). We conclude that such evidence exists to support the jury’s verdict.

¶29 Resting her argument on the foundation that the children’s statements made during the primary investigation were inherently improbable, Rivera asserts that she was convicted on insufficient evidence. She asserts insufficiency in three different ways. We address each in turn.

¶30 Rivera first argues that the children’s trial testimony— because it was made under oath—should be afforded greater weight than their pretrial statements. And based on the children’s trial testimony alone, Rivera contends that there was insufficient evidence for the jury, without relying on “speculation and conjecture,” to convict her. But, as demonstrated above, Rivera’s assertion that the children’s pretrial statements were inherently improbable fails. The children’s statements were properly accepted and weighed by the jury. And when evidence is disputed, as it was in this case, it is not for the court to resolve the conflict by excluding certain evidence from consideration. Rather, it is the jury’s job to sort through conflicting evidence and to assess the credibility of the witnesses. See State v. Cady, 2018 UT App 8, ¶ 23, 414 P.3d 974. Far from showing insufficiency, Rivera has simply identified a conflict in the evidence that requires resolution through deliberation of a factfinder, which is a function the jury has carried out here.

¶31 Second, Rivera claims that her pretrial admissions about disciplining the children were insufficient to support a finding that she caused “serious physical injury” to them under the Utah Code. See Utah Code Ann. § 76-5-109(1)(f)(ii)(E) (LexisNexis Supp. 2016) (stating that “any combination of two or more physical injuries inflicted by the same person, either at the same time or on different occasions” constitutes “serious physical injury”). But Rivera’s argument is misplaced. It does not matter whether her pretrial admissions, standing alone, demonstrated child abuse. Rather, the factfinder considers the evidence taken as a whole. Indeed, discrete evidence in many trials would be insufficient to support a conviction if viewed in a vacuum, apart from other evidence. But we do not consider evidence in such a piecemeal and isolated fashion. Instead, we analyze whether there is sufficient evidence to support a verdict “in light of the totality of the evidence.” State v. Ashcraft, 2015 UT 5, ¶ 27, 349 P.3d 664.

¶32 Furthermore, Rivera’s pretrial statements—when considered with all the other evidence—support her conviction. She admitted to hurting the children. She admitted to using pliers to discipline H.S. She admitted to pinching the children with her nails. She admitted to having K.S. and F.S. punch H.S. All three children’s statements to investigators corroborate these same events. Furthermore, as described above, the abusive nature of Rivera’s admitted methods of discipline are corroborated by the physical-examination photographs and by Doctor’s testimony.

¶33 Third, Rivera argues that the testimony about Father reveals that he most likely injured the children. Citing State v. Cristobal, 2010 UT App 228, 238 P.3d 1096, Rivera asserts that because there is evidence that Father may have abused the children, the jury’s verdict convicting her was based on “speculation and conjecture” and unreasonable inferences. But Rivera’s argument employs an overly broad understanding of “speculation.” Rivera would have us conclude that by presenting an alternate explanation for the children’s injuries, she has established that her conviction was based on speculation. This is incorrect. “A jury draws a reasonable inference if there is an evidentiary foundation to draw and support the conclusion. In the case of speculation, however, there is no underlying evidence to support the conclusion.” Salt Lake City v. Carrera, 2015 UT 73, ¶ 12, 358 P.3d 1067. As explained above, there is certainly an evidentiary foundation from which to draw and support the conclusion that Rivera pinched the children with pliers and otherwise abused them.

¶34 Rivera’s insufficiency-of-the-evidence argument is unpersuasive because the “existence of a conflict in the evidence does not render the totality of the evidence insufficient. It is the role of the factfinder to examine and resolve such conflicts.” State v. Black, 2015 UT App 30, ¶ 19, 344 P.3d 644. And that is precisely what the jury did in this case. It considered the conflicting evidence and served “as the exclusive judge of both the credibility of witnesses and the weight to be given to particular evidence” in convicting Rivera of child abuse. Id. (cleaned up).


¶35      Rivera’s claim that the children’s pretrial statements were inherently improbable fails because the statements were corroborated. And Rivera’s claim that she was convicted on insufficient evidence fails because there was ample evidence to support the verdict rendered by the jury. We therefore affirm.

Utah Family Law, LC | | 801-466-9277


[1] “On appeal, we review the record facts in a light most favorable to the jury’s verdict and recite the facts accordingly.” State v. Maese, 2010 UT App 106, ¶ 2 n.2, 236 P.3d 155.

[2] These were the ages of the children when they reported the abuse in 2016.

[3] Photographs of the children entered into evidence verify the extent of their injuries. In reviewing these photographs, one might mistakenly conclude that the children had been peppered with a shotgun blast based on the density of the scarring to their bodies.

[4] About this same time, K.S. told his ecclesiastical leader that the children had pinched each other and had made up the story about Rivera inflicting the abuse.

[5] Regarding the last two counts, the Information stated that (1) the children had observed Rivera beat Father and (2) Father revealed that Rivera beat him and threatened to have him deported if he reported her abuse of the children.

[6] Undue micro-focus on the elements of the inherent improbability exception often leads to legal myopia where the ultimate question—whether a reasonable jury could find a defendant guilty beyond a reasonable doubt—is lost in the details. A case which actually falls within the Robbins–Prater rubric is exceedingly rare. In fact, we have not found a single Utah decision examined under that rubric that has reversed a verdict since Robbins.

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