State v. Escobar-Florez

2019 UT App 135
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JUAN C ARLOS ESCOBAR -F LOREZ ,
Appellant.
Opinion
No. 20170390-CA
Filed August 8, 2019
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 071907926
Deborah L. Bulkeley, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. O RME and M ICHELE M. C HRISTIANSEN
F ORSTER concurred.
POHLMAN, Judge:
¶1 	Juan Carlos Escobar-Florez appeals his conviction for rape
of a child. He raises several claims of ineffective assistance of
counsel and has moved for remand for an evidentiary hearing
related to some of those claims. He also contends that the district
court erroneously instructed the jury on flight and erred in
denying his motion for a directed verdict. We deny his motion to
remand and affirm.

State v. Escobar-Florez
20170390-CA 	2 	2019 UT App 135
BACKGROUND1
¶2 	Escobar-Florez was renting a room in the basement of a
house in Salt Lake City, Utah, where his co-worker and co-
worker’s family also lived. One night in August 2007, Escobar-
Florez 	raped 	his 	co-worker’s 	thirteen-year-old 	stepdaughter
(Victim). He moved out immediately afterward, and although he
was charged with rape of a child in October 2007, he made
himself scarce and was not arrested until 2016.
¶3 	At 	the 	final 	pretrial 	conference, 	Escobar-Florez’s 	trial
counsel indicated that he was ready to move forward with trial.
Trial 	counsel 	explained 	that 	although 	he 	had 	informed
Escobar-Florez that two law enforcement witnesses were “both
out 	[of] 	state” 	and 	“not 	available 	for 	trial,” 	Escobar-Florez
“want[ed] to go forward anyway.” Trial counsel further stated
that he would come to an agreement with the State “on how to
use [their] police reports at trial.” Trial counsel then noted that
he told Escobar-Florez that his own “preference would be to
continue the trial in light of the officers not being here,” but that
“it 	was 	[Escobar-Florez’s] 	decision 	that 	he 	wanted 	to 	go
forward.”
¶4 	During the jury-selection process, the district court, at
trial 	counsel’s 	request, 	informed 	the 	potential 	jurors 	that
Spanish-language interpreters would be used, and the court
asked the potential jurors to indicate whether they “might not be
able to be fair to either the prosecution or the defense in light of
the fact that Spanish is the primary language of several of the
1. We recite the record facts “in a light most favorable to the
jury’s verdict,” and we “present conflicting evidence only as
necessary 	to 	understand 	issues 	raised 	on 	appeal.” 	State 	v.
Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (cleaned up).

State v. Escobar-Florez
20170390-CA 	3 	2019 UT App 135
individuals involved in the case.” No potential juror indicated in
the affirmative.
¶5 	When 	trial 	began, 	the 	prosecutor 	explained 	in 	her
opening 	statement 	that 	after 	committing 	the 	abuse,
Escobar-Florez “suddenly just disappear[ed].” The prosecutor
also 	mentioned 	that 	the 	investigating 	detective 	(Detective)
contacted Escobar-Florez and arranged an interview but that
“Escobar-Florez didn’t show up.” The prosecutor further stated
that Detective then went to Escobar-Florez’s workplace and was
told, “He doesn’t work here anymore. He quit, citing he had a
problem with the police.”
¶6 	Trial counsel began his opening statement by admitting
that Escobar-Florez was born in El Salvador and “was in this
country illegally.” Trial counsel told the jury that it would be
able to see the police report made by the investigating police
officer (Officer). In that report, trial counsel asserted, the jury
would see that Victim made statements she did not repeat later,
including that she and Escobar-Florez had a boyfriend–girlfriend
relationship and had sex twice. Trial counsel also offered a
possible motive for Victim’s accusation of abuse—she had been
“out 	all 	night” 	and 	made 	the 	allegations 	only 	after 	being
confronted by her mother (Mother).
¶7 	Victim testified at trial that, one night in August 2007, she
woke up in the middle of the night and left her basement
bedroom to go to the bathroom. According to Victim, when she
was leaving the bathroom to go back to sleep, Escobar-Florez
was standing right outside the bathroom door, and he “grabbed
[her] hand.” Victim told him to “let [her] go,” but instead
Escobar-Florez covered her mouth and took her to his bedroom,
closing the door behind them. Escobar-Florez laid Victim down
on the bed and pulled her hands to her back. When he took his
hand away from her mouth, Escobar-Florez told Victim “not to
scream or otherwise he was going to do some harm to [her]

State v. Escobar-Florez
20170390-CA 	4 	2019 UT App 135
mom.” He then touched her breasts with his hand and began
kissing her neck. Escobar-Florez proceeded to “put his penis
inside [Victim’s] vagina,” causing her pain. Victim told him to
stop, but he did not and “was just laughing.” After he was done,
Victim 	went 	back 	to 	her 	room 	and 	cried. 	Victim 	saw
Escobar-Florez in the house the next day, but afterward she
never saw him again until the court proceedings. According to
Victim, her life changed “[i]n every way” and she was “all the
time locked in [her] room.” Victim testified that she first told a
friend about the abuse and later told Mother at a park after
school.
¶8 	On cross-examination, Victim denied that she told Mother
about the abuse after she had stayed out the night before. She
denied that she had told the police that she and Escobar-Florez
were girlfriend and boyfriend and that they had sex twice. But
she admitted that, in one police interview, she said that Escobar-
Florez was sitting on the couch when she exited the bathroom on
the night in question.
¶9 	Mother testified at trial that she suspected something had
happened 	with 	Victim 	when 	she 	noticed 	that 	Victim 	was
“different,” 	“very 	emotional,” 	and 	“scared.” 	According 	to
Mother, Victim was “not talking anymore,” “not playing or
going out,” and “didn’t leave her room.” When she asked Victim
what was wrong, Victim “didn’t want to say anything.” Mother
took Victim for a car ride during which Victim told Mother
about the abuse and said that Escobar-Florez threatened to harm
Mother. Mother then took Victim to a clinic and the hospital.
Mother testified that she noticed Victim’s behavior change while
Escobar-Florez was still living with them and that she did not
see Escobar-Florez again after Victim revealed the abuse. Mother
denied reporting that Victim told her about the abuse after
Victim had stayed out all night.

State v. Escobar-Florez
20170390-CA 	5 	2019 UT App 135
¶10 	Victim’s stepfather (Stepfather) testified similarly about
Victim’s change in behavior. According to Stepfather, he became
worried about Victim when he noticed she was “really quiet.”
About a week later, and within days after Escobar-Florez moved
out of the house, Victim told Stepfather about the abuse. And
after he moved out, Escobar-Florez no longer appeared at work
even though Stepfather used to see him there “[e]very morning.”
Stepfather added that the family moved out of the house about
three weeks after Escobar-Florez left, and he did not see him
again until trial.
¶11 	A 	pediatrician 	testified 	regarding 	an 	examination 	of
Victim performed in September 2007. According to the report
from that examination, Victim told Mother about the abuse
several weeks after it happened and Mother and Victim stated
that the abuse happened on August 8 or 9. Victim stated that on
the night in question, Escobar-Florez was in the family room
when she came out of the bathroom. Victim said that he grabbed
her and took her to his room, where he undressed her and where
“his private went in her private.” When asked if it had gone in
“the front private and the back private,” Victim said “both.”
When Victim underwent a physical examination, no injuries
were observed, and tests showed that she did not have any
sexually 	transmitted 	diseases. 	The 	pediatrician 	could 	not
confirm 	whether 	Victim 	had 	had 	sex. 	Mother 	also 	stated,
according to the report from Victim’s examination and as elicited
on cross-examination, that the family had asked Escobar-Florez
to move out, he did not want to go, and so the family moved.
¶12 	The 	Division 	of 	Child 	and 	Family 	Services 	(DCFS)
caseworker assigned to Victim’s case also testified. According to
the caseworker, Mother similarly reported to her that Escobar-
Florez refused to leave the house where he was a roommate and
that Mother and her family moved out instead. Mother also told
the caseworker that Victim disclosed the abuse to her after
having left the house in the middle of the night. Mother reported

State v. Escobar-Florez
20170390-CA 	6 	2019 UT App 135
that she found Victim in the early morning hours near Escobar-
Florez’s workplace and that when she asked Victim why she ran
away, Victim said that she wanted to get Escobar-Florez to talk
to Mother about the incident.
¶13 	The prosecution and the defense reached a stipulation
regarding 	the 	unavailability 	of 	Detective 	and 	Officer. 	The
prosecutor informed the court that “[b]ased on wanting this trial
to go forward, both counsel have stipulated to just introduce the
entirety of their police reports.” The prosecutor represented that
she had spoken with Detective and Officer and “[n]either one of
them has an independent recollection of anything about the
case” and “if [they] were called to testify, [they] would get on
the stand and essentially read their report.” In discussing how to
present the police reports to the jury, trial counsel commented
that he was “certainly going to be relying on [them] in [his]
closing argument.”
¶14 	The district court read the stipulated facts to the jury.
Those stipulated facts included that Detective and Officer “were
the 	only 	officers 	involved 	in 	the 	investigation” 	and 	were
“unavailable to testify” at trial; if Detective and Officer “were to
testify, they would testify to what is contained in their reports”;
and they “have no other memories of this case.” The parties also
agreed 	to 	the 	admission 	of 	the 	entirety 	of 	Detective’s 	and
Officer’s police reports. After reading the stipulated facts, the
court provided each juror a copy of the stipulated facts and the
attached police reports. The court then took a recess to give the
jurors the opportunity to review the documents.
¶15 	Officer’s police report stated that Victim said that “she
and the suspect are in a relationship where they are boyfriend
and girlfriend,” that they had “sexual relations on 8/8/07 in the
evening and again on 8/9/07,” and that she “believes she may be
pregnant.” Detective’s first police report explained, among other
things, that Victim told Detective that when she came out of the

State v. Escobar-Florez
20170390-CA 	7 	2019 UT App 135
bathroom on the night in question, she “saw [Escobar-Florez]
sitting on a couch.” That report also stated Mother told Detective
that one night Victim “was gone until 9 a.m.” and that when
Mother “confronted” her, Victim “told her about what had
happened” 	with 	Escobar-Florez. 	Detective’s 	second 	report
stated, in relevant part,
On 	September 	4, 	2007 	. 	. 	. 	[Escobar-Florez]
promised to come and see me . . . on the same day
at 1800 hours. [Escobar-Florez] failed to make an
appointment and at approx. 1840 hours [another
officer] called and talked to [Escobar-Florez] . . . .
[He] told [the officer] he would come and see me
on September 5, 2007 at 1500 hours. On September
5, 2007 at approx. 0900 hours I was at [Escobar-
Florez’s] place of employment . . . . I was informed
[Escobar-Florez] had quit his job citing problem[s]
with the police . . . . The people who worked with
[Escobar-Florez] told the management he was from
El Salvador.
The police reports also contained a copy of Escobar-Florez’s
“Permanent Resident Card,” which listed Mexico as his country
of birth.
¶16 	Soon 	after 	the 	short 	recess, 	the 	State 	rested 	its
case-in-chief. Escobar-Florez did not testify, and the defense
called no witnesses.
¶17 	In closing arguments, the prosecutor argued in part for
conviction by pointing to the fact that Escobar-Florez left the
house and quit his job. The prosecutor asserted, “[T]he thing
that’s important is when [Detective] . . . calls [Escobar-Florez]
and says, ‘I want to meet with you, come and talk with me.’ And
the next day [Detective] goes to [Escobar-Florez’s] work after he
didn’t show up to talk to [Detective] and [Escobar-Florez] had

State v. Escobar-Florez
20170390-CA 	8 	2019 UT App 135
quit. And said, ‘I’m having problems with the police.’” The
prosecutor also directed the jurors to the police reports that
included Escobar-Florez’s permanent resident card and argued
that “this isn’t one of those instances where he’s here illegally
and he’s afraid of contact with police because he has a green
card” 	and 	“[h]e’s 	actually 	here 	legally, 	according 	to 	the
documentation.” The prosecutor continued, “So why else would
you suddenly quit your job? And leave and move out of your
residence? So nobody can find you. All of those things that
happened are consistent with [Victim’s] facts . . . .”
¶18 	Trial 	counsel 	focused 	his 	closing 	argument 	on
highlighting 	inconsistencies 	in 	Victim’s 	testimony, 	including
inconsistencies found within the police reports. For example,
trial 	counsel 	pointed 	to 	Detective’s 	report 	about 	Mother
confronting Victim after being out all night and suggested that
Victim 	“got 	out 	of 	trouble” 	by 	making 	allegations 	against
Escobar-Florez. Trial counsel also referred to the information in
the 	police 	report 	about 	Detective 	going 	to 	Escobar-Florez’s
workplace, and trial counsel argued that no evidence suggested
that Detective went to Escobar-Florez’s last known address or
“did any additional follow-up.” Trial counsel also argued that
Escobar-Florez was from El Salvador, not Mexico, and so it was
possible he was “working with a counterfeit green card, [and]
that too would provide all kinds of justification for not wanting
to talk to the police.” Trial counsel further argued that the police
report showed that Escobar-Florez “hadn’t been [at work] for a
couple of weeks” before Detective went looking for him—and
“before [Victim] had even made a disclosure.” Trial counsel
continued, 	“So 	what 	is 	the 	problem 	with 	the 	police 	that
[Escobar-Florez] was having? Perhaps it’s completely unrelated
to any of this stuff, since no attempt was made to contact
[Escobar-Florez] until early September.”
¶19 	Over trial counsel’s objection, the district court gave the
jury an instruction on flight. That instruction stated:

State v. Escobar-Florez
20170390-CA 	9 	2019 UT App 135
Evidence was introduced at trial that the defendant
may have fled or attempted to flee from the crime
scene or after having been accused of the crime.
This evidence alone is not enough to establish
guilt. However, if you believe that evidence, you
may consider it along with the rest of the evidence
in reaching a verdict. It’s up to you to decide how
much weight to give that evidence.
Keep in mind that there may be reasons for flight
that could be fully consistent with innocence. Even
if 	you 	choose 	to 	infer 	from 	evidence 	that 	the
defendant had a “guilty conscience,” that does not
necessarily mean he is guilty of the crime charged.
¶20 	Before the jury returned a verdict, Escobar-Florez moved
for a directed verdict, arguing that “there is insufficient evidence
that sexual intercourse actually occurred.” The court denied his
motion.
¶21 	The jury convicted Escobar-Florez as charged. He appeals.
ISSUES AND STANDARDS OF REVIEW
¶22 	Escobar-Florez contends that his trial counsel rendered
constitutionally ineffective assistance of counsel in a number of
ways. “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. Craft, 2017 UT App 87, ¶ 15, 397 P.3d 889 (cleaned
up).
¶23 	In 	connection 	with 	some 	of 	his 	claims 	of 	ineffective
assistance of counsel, Escobar-Florez requests a remand for an
evidentiary 	hearing 	under 	rule 	23B 	of 	the 	Utah 	Rules 	of

State v. Escobar-Florez
20170390-CA 	10 	2019 UT App 135
Appellate Procedure. Rule 23B allows this court to remand a
criminal case “to the trial court for entry of findings of fact,
necessary for the appellate court’s determination of a claim of
ineffective assistance of counsel.” Utah R. App. P. 23B(a). This
court will grant a rule 23B motion to remand “only upon a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.” Id.
¶24 	Escobar-Florez next contends that the district court erred
in issuing a flight instruction to the jury. “We review the trial
court’s decision to give a flight instruction for correctness.” State
v. LoPrinzi, 2014 UT App 256, ¶ 10, 338 P.3d 253 (cleaned up).
¶25 	He also contends that the district court erred in denying
his motion for a directed verdict, arguing that the evidence is
insufficient to sustain his conviction. We review district court
rulings on motions for directed verdict for correctness. State v.
Gonzalez, 2015 UT 10, ¶ 21, 345 P.3d 1168.
ANALYSIS
I. Ineffective Assistance of Counsel Claims
¶26 	Escobar-Florez contends that his trial counsel rendered
constitutionally deficient assistance in four ways: (A) he failed to
ask “any questions of the jury panel to weed out potential bias”
related 	to 	his 	immigration 	status, 	(B) 	he 	stipulated 	to 	the
admission of the police reports, (C) he failed to object to other
hearsay statements, and (D) he “was ineffective in representing
[Escobar-Florez] at trial because of a break-down in attorney–
client 	communication 	and 	because 	of 	[counsel’s] 	failure 	to
investigate the facts of the case.”
¶27 	To carry the “heavy burden” of establishing that his trial
counsel 	provided 	constitutionally 	ineffective 	assistance 	of

State v. Escobar-Florez
20170390-CA 	11 	2019 UT App 135
counsel, Escobar-Florez must establish two elements. See State v.
Nelson, 2015 UT 62, ¶¶ 10–11, 355 P.3d 1031 (cleaned up). He
“must 	first 	demonstrate 	that 	counsel’s 	performance 	was
deficient, in that it fell below an objective standard of reasonable
professional judgment.” See State v. Litherland, 2000 UT 76, ¶ 19,
12 P.3d 92 (citing Strickland v. Washington, 466 U.S. 668, 687–88
(1984)). “Judicial scrutiny of counsel’s performance is highly
deferential 	and 	includes a 	strong presumption 	that 	counsel
rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.” State v.
Reigelsperger, 2017 UT App 101, ¶ 92, 400 P.3d 1127 (cleaned up).
Indeed, Escobar-Florez “must overcome the presumption that,
under 	the 	circumstances, 	the 	challenged 	action 	might 	be
considered sound trial strategy.” See Strickland, 466 U.S. at 689
(cleaned up). “Second, [he] must show that counsel’s deficient
performance was prejudicial—i.e., that it affected the outcome of
the case.” See Litherland, 2000 UT 76, ¶ 19 (citing Strickland, 466
U.S. at 687–88). “A failure to prove either element defeats the
claim.” State v. Johnson, 2015 UT App 312, ¶ 15, 365 P.3d 730
(cleaned up).
A. 	Jury Selection
¶28 	Escobar-Florez contends that his trial counsel “performed
deficiently by not conducting adequate voir dire before arguing
to the jury about [his] illegal immigration status.” He contends
that although trial counsel argued that Escobar-Florez “was an
undocumented immigrant” in opening and closing statements,
counsel did not ask any questions during voir dire “to determine
whether jurors had bias or prejudice against undocumented
immigrants” 	and 	thereby 	failed 	“to 	conduct 	adequate
examination into potential juror biases.” And he contends that
this prejudiced him “because there was no probing to determine
whether any of the jurors were biased against undocumented
immigrants.”

State v. Escobar-Florez
20170390-CA 	12 	2019 UT App 135
¶29 	The State counters that, under State v. King, 2008 UT 54,
190 P.3d 1283, Escobar-Florez must show prejudice stemming
from 	his 	counsel’s 	performance 	by 	proving 	“that 	because
counsel did not inquire into the prospective jurors’ attitudes
about immigration a biased juror sat.” (Citing id. ¶ 47.) The State
further asserts that Escobar-Florez “has not even attempted to
meet that burden.” We agree with the State.
¶30 	As stated, to show ineffective assistance of counsel, the
defendant 	has 	the 	burden 	of 	showing 	that 	his 	counsel’s
“deficient performance affected the outcome of the case.” State v.
Arriaga, 2012 UT App 295, ¶ 13, 288 P.3d 588 (cleaned up). In this
context—an ineffective assistance of counsel claim arising from
counsel’s performance in the jury-selection process—the Utah
Supreme Court instructed in King that “errors of counsel that
allow the seating of potentially biased jurors” are not entitled to
a presumption of prejudice. 2008 UT 54, ¶¶ 38–39. Rather, “[t]o
prevail 	on 	[a] 	claim 	that 	[trial] 	counsel 	was 	deficient, 	[a
defendant] 	must 	demonstrate 	actual 	prejudice,” 	which 	is
“synonymous with actual juror bias.” Id. ¶ 39. Stated differently,
to prevail on an ineffective assistance of counsel claim in this
context, a defendant “must show that [trial] counsel’s actions
prejudiced him because those actions allowed the seating of an
actually biased juror.” Id. ¶ 47.
¶31 	King is controlling. Thus, for Escobar-Florez to prevail on
his claim that his trial counsel should have asked questions
during voir dire “to determine whether jurors had bias or
prejudice against undocumented immigrants,” he is required to
show that his trial counsel’s actions “allowed the seating of an
actually biased juror.” See id. It is not enough for Escobar-Florez
to allege potential bias and to speculate that one or more jurors
may have harbored bias that may have led them to find his
version 	of 	events 	less 	credible 	or 	to 	convict 	based 	on 	his
immigration status. See id. ¶¶ 19, 47 (holding that “potential
bias” does not constitute prejudice).

State v. Escobar-Florez
20170390-CA 	13 	2019 UT App 135
¶32 	Escobar-Florez does not show actual bias but instead
attempts to distinguish King on its facts. For example, he asserts
that his case is different because unlike King, in which two jurors
responded that they had experiences related to the criminal
charge at issue, “no questioning of the venire . . . could even
raise the question of potential or actual bias” in his case. He
further 	asserts 	that 	his 	case 	differs 	from 	King 	because 	his
“counsel elected to make an issue of the very subject that would
have made juror questioning into potential bias relevant” and
because “the potential bias comes from evidence that [he] had
committed another highly politically charged crime—illegally
entering the United States.” He also suggests that “King simply
does not apply where there is a significant risk that the entire
jury 	was 	not 	impartial.” 	These 	alleged 	differences 	are
immaterial. We view King as clear direction that defendants
raising ineffective assistance claims related to counsel’s failure to
sufficiently probe prospective jurors for potential bias during the
jury-selection process must show that counsel’s performance led
to the seating of an actually biased juror. Id. ¶¶ 13, 38–39, 47.
¶33 	Escobar-Florez has not made that showing. He therefore
has not established the prejudice prong of the test for ineffective
assistance of counsel. Accordingly, his ineffective assistance of
counsel claim related to the jury-selection process fails.
B. 	Stipulating to the Admission of the Police Reports
¶34 	Escobar-Florez 	contends that 	he 	was deprived 	of 	his
constitutional right to the effective assistance of counsel when
his 	trial 	attorney 	stipulated 	to 	the 	admission 	of 	the 	police
reports. In particular, he argues that his trial counsel should
have sought to redact portions of the reports that (1) contained
“multiple unreliable hearsay statements,” including the portion
of Detective’s police report in which Detective explained that at
Escobar-Florez’s workplace he “was informed [Escobar-Florez]
had 	quit 	his 	job 	citing 	problem[s] 	with 	the 	police,” 	and

State v. Escobar-Florez
20170390-CA 	14 	2019 UT App 135
(2) “improperly 	commented 	on 	[his] 	right 	against 	self-
incrimination,” including the part of Detective’s police report
that stated that Escobar-Florez “promised 	to come and see
[Detective]” 	and 	Escobar-Florez 	“failed 	to 	make 	an
appointment.” He also suggests that trial counsel’s stipulation
led to the violation of his right to confront the witnesses against
him.
¶35 	To 	show 	deficient 	performance, 	Escobar-Florez 	must
“rebut the strong presumption that under the circumstances, the
challenged action might be considered sound trial strategy.”
State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (cleaned up). In
other 	words, 	he 	must 	persuade 	us 	that 	“there 	was 	no
conceivable tactical basis for counsel’s acts or omissions.” State v.
Nelson, 2015 UT 62, ¶ 10, 355 P.3d 1031 (cleaned up). Our
supreme court has instructed that “the question of deficient
performance is not whether some strategy other than the one
that counsel employed looks superior given the actual results of
trial. It is whether a reasonable, competent lawyer could have
chosen the strategy that was employed in the real-time context of
trial.” Id. ¶ 14 (cleaned up).
¶36 	On the facts of this case, we conclude that Escobar-Florez
has not rebutted the strong presumption that stipulating to the
admission of the police reports “might be considered sound trial
strategy.” See Litherland, 2000 UT 76, ¶ 19 (cleaned up). By
stipulating to the admission of the police reports, trial counsel
achieved reasonable strategic objectives. To begin with, he was
able to secure a faster trial for Escobar-Florez. As discussed at
the 	final 	pretrial 	conference, 	when 	trial 	counsel 	informed
Escobar-Florez that the police officers were out of state and
unavailable for trial, Escobar-Florez insisted that he still wanted
to go forward with trial, so trial counsel indicated that he would
“come to an agreement [with the prosecutor] on how to use
those police reports at trial.” The resulting stipulation thus
enabled 	trial 	counsel 	to 	avoid 	continuing 	the 	trial 	against

State v. Escobar-Florez
20170390-CA 	15 	2019 UT App 135
Escobar-Florez’s wishes. And stipulating to the admission of the
police reports allowed trial counsel to secure the admission of
evidence helpful to Escobar-Florez’s defense and theory of the
case. Indeed, trial counsel informed the court that he “certainly
[was] going to be relying on” the police reports in his closing
argument. 	Trial 	counsel 	followed 	through 	on 	this, 	and 	his
decision 	to 	pursue 	this 	strategy 	was 	reasonable 	under 	the
circumstances.
¶37 	Trial counsel’s primary strategy at trial was to undermine
Victim’s credibility by highlighting the inconsistencies in her
trial testimony and other statements, several of which were
included in the police reports. For example, the reports contain
Victim’s statements that she and Escobar-Florez were “boyfriend
and girlfriend”; that they had sex twice; and that Escobar-Florez
was initially “sitting on a couch,” rather than standing outside
the bathroom, on the night of the rape. And unlike Victim’s and
Mother’s 	trial 	testimonies 	that 	Escobar-Florez 	threatened 	to
harm 	Mother, 	the 	reports 	contain 	no 	such 	allegation. 	Trial
counsel advanced the narrative that there were “very significant
alterations in the story between then and between now,” and he
relied on this evidence to argue to the jury that “too much . . . is
inconsistent” and “doesn’t add up.” Trial counsel’s strategy to
stipulate to the admission of the police reports containing these
inconsistencies was reasonable.
¶38 	The police reports also contained evidence that supported
the defense theory that Victim fabricated the allegations against
Escobar-Florez in order to get out of trouble with Mother. The
reports state that Mother told Detective that Victim left at night
and 	was 	“gone 	until 	9 	a.m.” 	and 	“[w]hen 	confronted 	by
[Mother,] [Victim] disclosed . . . the incident.” Trial counsel
relied on this evidence to argue in closing statements that when
Victim made the rape allegation “she got out of trouble” and
Escobar-Florez was “an easy target.” Trial counsel’s decision to

State v. Escobar-Florez
20170390-CA 	16 	2019 UT App 135
stipulate to the admission of the police reports in support of this
theory likewise constitutes a reasonable trial strategy.
¶39 	Trial counsel’s decision to stipulate to the police reports
also put before the jury helpful evidence that offered alternative
explanations for Escobar-Florez’s disappearance and his choice
not to talk to police. See Nelson, 2015 UT 62, ¶ 19 (“It was
reasonable that counsel would seek to provide the jury with a
satisfactory explanation for [the defendant’s] behavior following
the [crimes].”). The police reports contained a copy of Escobar-
Florez’s 	permanent 	resident 	card 	that 	listed 	Mexico 	as 	his
country of birth, and the reports also contained the statement
that the “people who worked with [Escobar-Florez] told . . .
management he was from El Salvador.” Trial counsel referenced
this evidence during closing statements to suggest that the
permanent resident card was counterfeit and to argue that “if, in
fact, he’s El Salvadoran and was working with a counterfeit
green card, that too would provide all kinds of justification for
not wanting to talk to the police.” Trial counsel further argued
that Escobar-Florez’s problem with the police was “completely
unrelated” to Victim’s allegations, explaining that the police
reports suggested that Escobar-Florez had left his employment
“before [Victim] had even made a disclosure.”
¶40 	Given that the jury was likely to hear evidence at trial that
Escobar-Florez disappeared after the rape was reported,2 trial
counsel reasonably stipulated to the police reports as evidence
that could support an alternative reason for Escobar-Florez’s
behavior. Instead of consciousness of guilt related to Victim’s
allegations, the police reports offered support for the defense
theory that Escobar-Florez’s immigration problems motivated
2. The rape was reported in 2007, but the case was not tried until
2017. And Victim, Mother, and Stepfather all testified that they
did not see Escobar-Florez again after Victim disclosed the rape.

State v. Escobar-Florez
20170390-CA 	17 	2019 UT App 135
his decisions; he may have left and declined to meet simply to
avoid 	police 	scrutiny. 	And 	because 	Escobar-Florez 	did 	not
testify, stipulating to the police reports offered perhaps the only
way for trial counsel to present evidence of this defense theory.
See State v. Simpson, 2019 UT App 85, ¶ 23, 443 P.3d 789 (stating
that 	counsel’s 	decision 	to 	allow 	the 	jury 	to 	hear 	certain
interviews was a sound trial strategy given that because the
defendant did not testify, the “defense theory could be presented
to the jury only through the introduction of [the interviews]”).
¶41 	Admittedly, the police reports contained evidence that
was both 	helpful 	and 	detrimental 	to 	the defense. 	But 	trial
counsel 	could 	have 	reasonably 	decided 	that 	the 	upside
outweighed the downside and that he could effectively explain
away 	the 	damaging 	evidence. 	And 	although 	Escobar-Florez
asserts that, at a minimum, trial counsel should have sought to
redact the portions of the police reports that were inadmissible
and 	damaging 	to 	his 	defense, 	trial 	counsel 	could 	have
reasonably decided that such a path would have “increased the
likelihood 	that 	the 	State 	would 	successfully 	object” 	to 	the
hearsay portions of the police reports that were important to the
defense strategy. See State v. Shepherd, 2015 UT App 208, ¶ 53,
357 P.3d 598; see also State v. Hulse, 2019 UT App 105, ¶ 36 n.9
(“We can readily conceive that a competent attorney . . . may
have deliberately chosen not to object to [a deputy’s] testimony
in order to set a testimonial baseline that would help overcome
potential objections to the [similar] content of [the defendant’s]
friend’s 	testimony—especially 	considering 	that 	the 	friend’s
testimony was crucial in establishing the defense’s alternate
theory [of the case].”), petition for cert. filed, July 15, 2019 (No.
20190585); State v. Roberts, 2019 UT App 9, ¶ 20, 438 P.3d 885
(explaining that trial counsel may have reasonably decided “to
reserve 	for 	himself 	the 	right 	to 	argue 	inferences 	from 	the
evidence during his own closing argument without increasing
the likelihood of the State objecting in return”).

State v. Escobar-Florez
20170390-CA 	18 	2019 UT App 135
¶42 	Under all the circumstances, trial counsel was able to
advance reasonable strategic objectives by stipulating to the
admission of the police reports. We thus conclude that there
were reasonable tactical bases for stipulating to this evidence
and 	that 	trial 	counsel 	therefore 	did 	not 	render 	objectively
deficient 	performance. 	See 	Litherland, 	2000 	UT 	76, 	¶ 	19.
Escobar-Florez’s ineffective assistance of counsel claim on this
ground accordingly fails.
C. 	Failing to Object to Other Hearsay
¶43 	Escobar-Florez 	also 	raises 	an 	ineffective 	assistance 	of
counsel claim based on his trial counsel’s failure to object to
other unspecified hearsay statements in the testimony of the
pediatrician and the DCFS caseworker. In particular, he asserts
that his trial counsel should have objected to the pediatrician’s
testimony 	relaying 	what 	Victim 	said 	during 	her 	medical
examination and to the DCFS caseworker’s testimony about
what Mother told her.
¶44 	As with his claim regarding his counsel’s failure to object
to the police reports, we conclude that Escobar-Florez has not
overcome the strong presumption that “the challenged action
might be considered sound trial strategy.” See Litherland, 2000
UT 	76, 	¶ 	19 	(cleaned 	up). 	“When 	viewing 	the 	variety 	of
circumstances faced by defense counsel, a conscious choice not
to object to arguably inadmissible testimony may, at times, fall
within the range of legitimate decisions regarding how best to
represent a criminal defendant.” State v. Gray, 2015 UT App 106,
¶ 44, 349 P.3d 806 (cleaned up).
¶45 	Trial counsel’s decision not to object to the pediatrician’s
testimony 	about 	Victim’s 	statements 	during 	the 	medical
examination 	was 	reasonable 	because 	that 	evidence 	was
favorable to the defense. In addition to the examination being
inconclusive about whether Victim had had sex, Victim made an

State v. Escobar-Florez
20170390-CA 	19 	2019 UT App 135
inconsistent 	statement 	during 	the 	medical 	examination 	that
Escobar-Florez had had both vaginal and anal sex with her—a
claim not made in the police reports or other testimony. And
both the pediatrician and the DCFS caseworker testified that,
contrary to Mother’s trial testimony, the family asked Escobar-
Florez to move out but that he refused. Trial counsel relied on
and stressed these inconsistencies during closing arguments, and
trial counsel could have reasonably decided to allow the rest of
the 	pediatrician’s 	and 	the 	DCFS 	caseworker’s 	testimonies
because they were, on the whole, helpful to the defense. Under
the circumstances, trial counsel’s choice not to object was a
reasonable tactical decision, and we therefore reject Escobar-
Florez’s ineffective assistance of counsel claim.3 See id.
D. 	Trial Counsel’s Communication and Investigation
¶46 	Escobar-Florez contends that his trial counsel rendered
ineffective assistance in two additional ways. First, he alleges
that 	“attorney–client 	communications 	broke 	down 	at 	trial,”
which resulted in him being unable to make informed decisions
about his case, “including whether to move forward with trial
using 	police 	reports rather 	than 	sworn 	testimony 	of 	police
officers, understanding and making informed decisions about
the medical records or potential expert testimony, and whether
or not to testify in his own defense.” Second, he believes trial
counsel did not adequately investigate his case. In connection
with these two grounds for ineffective assistance, Escobar-Florez
3. Escobar-Florez also asserts that trial counsel was ineffective
for failing to object to Mother’s testimony regarding what Victim
told her about the rape—testimony that was mostly cumulative
of Victim’s trial testimony. Escobar-Florez has not explained
how this failure was objectively unreasonable. See State v. Nelson,
2015 UT 62, ¶ 10, 355 P.3d 1031. This claim is consequently
unavailing. See id.

State v. Escobar-Florez
20170390-CA 	20 	2019 UT App 135
has filed a rule 23B motion seeking remand to the district court
for additional factual findings to support these grounds.
¶47 	A 	rule 	23B 	motion 	“will 	be 	available 	only 	upon 	a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.” Utah R. App. P. 23B(a). This is a
“high bar.” State v. Griffin, 2015 UT 18, ¶ 17, 441 P.3d 1166. To
meet it, the party must support its contentions with “affidavits
that demonstrate both the deficient performance by counsel and
the resulting prejudice to the defendant.” Id.; see also Utah R.
App. P. 23B(b). “[I]f the defendant could not meet the test for
ineffective 	assistance 	of 	counsel, 	even 	if 	[the] 	new 	factual
allegations were true, there is no reason to remand the case, and
we should deny the motion.” Griffin, 2015 UT 18, ¶ 20.
¶48 	The 	Utah 	Supreme 	Court 	has 	articulated 	four
requirements for rule 23B motions. “First, the motion must allege
facts that are not already in the record.” State v. Ring, 2018 UT 19,
¶ 49 n.50, 424 P.3d 845. “Second, the defendant must provide
allegations of fact that are not speculative.” Griffin, 2015 UT 18,
¶ 19. “[S]peculative allegations are those that have little basis in
articulable facts but instead rest on generalized assertions.” Id.
Thus, 	“when 	a 	defendant 	alleges 	that 	counsel 	failed 	to
investigate or call a witness, the defendant must, at the very
least, identify the witness,” and the supporting affidavits “must
submit specific facts and details that relate to specific relevant
occurrences.” Id. Third, the nonspeculative factual allegations
“must show deficient performance” and therefore “must focus
on why counsel’s performance was deficient.” Ring, 2018 UT 19,
¶ 49 n.50 (cleaned up). Fourth, the factual allegations must show
prejudice by demonstrating “that the result would have been
different had counsel’s performance not been deficient.” Id.
(cleaned up).

State v. Escobar-Florez
20170390-CA 	21 	2019 UT App 135
¶49 	Escobar-Florez’s rule 23B motion does not meet these
requirements. He presents only his own declarations in support
of his motion, and those declarations lack detail and are mostly
speculative and conclusory. With regard to his first complaint
about the adequacy of counsel’s communications with him,
Escobar-Florez avers, “I do not feel that my attorney adequately
communicated with me or kept me adequately informed about
my case. I don’t think that I had a full enough understanding to
be able to make informed decisions.” But we agree with the State
that 	Escobar-Florez 	“has 	not 	identified 	what 	additional
communication he needed to assist his attorney, shown what
additional assistance he could have then given his attorney,
shown what additional evidence the assistance would have
produced, or explained how the omitted evidence undermines
confidence in the outcome.”
¶50 	For example, he has not shown that, had he decided to
proceed 	with 	trial 	with 	the 	sworn 	testimony 	of 	the 	police
officers, the officers would have provided evidence different
from that contained in the reports or that their live testimony
would have altered the outcome of trial in a way favorable to
him. He also has not identified any potential expert testimony,
and he has not shown how a different decision about the
medical records could have been more favorable to him, given
that the medical records at trial showed no evidence of sexual
activity or injury. And while he suggests that he might have
chosen to testify at trial had counsel advised him differently, he
does not proffer what his testimony would have been or show
how that testimony would have been reasonably likely to change
the 	result. 	Escobar-Florez’s 	motion 	and 	accompanying
declarations do not allege facts that support a determination that
counsel was constitutionally ineffective.
¶51 	With regard to his second complaint about the adequacy
of counsel’s investigation, Escobar-Florez states generally that he
“believes that his counsel failed to adequately investigate.” But

State v. Escobar-Florez
20170390-CA 	22 	2019 UT App 135
he does not identify any evidence that counsel failed to discover
or show how additional investigation might have affected the
outcome of his trial. As with his first complaint about attorney–
client 	communications, 	Escobar-Florez’s 	motion 	and
accompanying declarations about his counsel’s investigation also
omit facts that justify a rule 23B remand.
¶52 	In short, Escobar-Florez has not supported his motion
with specific and nonspeculative allegations and has not shown
why any of his concerns affected his trial. We therefore deny
Escobar-Florez’s motion for a rule 23B remand. His related
ineffective assistance of counsel claims are unavailing “because
there 	is 	no 	indication 	on 	record 	that 	his 	trial 	counsel’s
performance was defective or that he was prejudiced.” See Ring,
2018 UT 19, ¶ 50.
II. Flight Instruction
¶53 	Escobar-Florez next contends that “the trial court erred in
instructing the jurors on flight, where there was little or no
evidence to support that [he] fled.”4 Citing the fact that the
police reports did not give a “time frame . . . for when [he] quit
his job,” he asserts that the evidence “did not provide any nexus
between 	the 	alleged 	flight 	and 	charged 	crime.” 	The 	State
responds that the “evidence supported a reasonable inference
that [Escobar-Florez] fled out of a consciousness of guilt” and
that the flight instruction was therefore proper. We agree with
the State.
¶54 	“Flight” is “[t]he act or an instance of fleeing, esp[ecially]
to evade arrest or prosecution.” Flight, Black’s Law Dictionary
4. Escobar-Florez does not assert errors in the wording of the
instruction itself. See State v. LoPrinzi, 2014 UT App 256, ¶ 28 n.9,
338 P.3d 253.

State v. Escobar-Florez
20170390-CA 	23 	2019 UT App 135
756 (10th ed. 2014). Utah appellate courts have recognized that
“[e]vidence of flight is probative because it can demonstrate
consciousness of guilt.” State v. LoPrinzi, 2014 UT App 256, ¶ 25,
338 P.3d 253 (citing State v. Franklin, 735 P.2d 34, 39 (Utah 1987)).
It 	is 	still 	probative 	“even 	if 	[the 	flight] 	does 	not 	occur
immediately after a criminal offense is committed or the police
begin an investigation.” Id. ¶ 27. And we believe “flight” is a
broad 	enough 	concept 	to 	include 	Escobar-Florez’s 	apparent
disappearance, whether he was lying low or fled the jurisdiction.
See State v. Madrid, 1999 UT App 294U, para. 4 (“[F]light does not
require the physical act of running, but only a purpose to avoid
being observed or arrested.”).
¶55 	This court has directed that “flight instructions are proper
when supported by the evidence, meaning the instructions bear
a relationship to evidence reflected in the record.” LoPrinzi, 2014
UT App 256, ¶ 25 (cleaned up). The required relationship exists
“if 	the 	flight 	occurred 	after 	the 	commission 	of 	the 	crime
charged.” 	Id. 	(cleaned 	up). 	Indeed, 	“a 	flight 	instruction 	is
appropriate if the circumstances could support a reasonable
inference that the defendant is fleeing out of a consciousness of
guilt.” Id. ¶ 28. But when a jury is instructed on flight, “Utah law
requires 	juries 	to 	be 	advised 	of 	[the] 	possibility” 	that 	the
defendant’s “departure could have other innocent explanations.”
Id. ¶ 28 n.9.
¶56 	We conclude that the district court correctly instructed the
jury on flight. Victim, Mother, and Stepfather all testified at trial
that Escobar-Florez moved out of the house and disappeared
after the rape. Additionally, the police reports indicated that
although 	Escobar-Florez 	promised 	to 	meet 	with 	Detective,
Escobar-Florez 	failed 	to 	show 	up 	and 	that 	when 	Detective
thereafter went to look for Escobar-Florez at his workplace, he
was told that Escobar-Florez “had quit his job citing problem[s]
with the police.” This evidence shows that Escobar-Florez’s
“flight” 	occurred 	after 	the 	charged 	crime, 	and 	the 	flight

State v. Escobar-Florez
20170390-CA 	24 	2019 UT App 135
instruction thus bore the necessary “relationship to evidence
reflected in the record.” See id. ¶ 25 (cleaned up). We agree with
the district court that the record evidence “could support a
reasonable 	inference 	that 	[Escobar-Florez 	fled] 	out 	of 	a
consciousness of guilt.” See id. ¶ 28.
¶57 	Escobar-Florez argues that his quitting his job “at some
point” and his decision not to talk to the police do “not mean
that he did so specifically to avoid capture for the charged
offense.” But this argument goes to the weight of the evidence
and fails to “establish that the evidence [was] incapable of
supporting a reasonable inference that [Escobar-Florez] fled . . .
out of a consciousness of guilt arising from commission of the
charged 	offenses.” 	See 	id. 	(rejecting 	a 	challenge 	to 	a 	flight
instruction 	because, 	although 	the 	defendant’s 	arguments
“against the instruction may have some basis in the facts, . . .
they go to the weight of the evidence and do not establish that
the evidence is incapable of supporting a reasonable inference
that [the defendant] fled the state out of a consciousness of guilt
arising from commission of the charged offenses”).5
¶58 	We 	also 	reject 	Escobar-Florez’s 	suggestion 	that 	the
evidence of flight is insufficient to support the flight instruction
because it does not give a “time frame” for when he quit his job.
This court has recognized that evidence of flight “may still be
probative even if [the flight] does not occur immediately after a
criminal 	offense 	is 	committed 	or 	the 	police 	begin 	an
investigation.” Id. ¶ 27. Thus, rather than requiring evidence of
an immediate flight, Utah law requires only that the flight occur
5. Consonant with Utah law, the flight instruction informed the
jury that “there may be reasons for flight that could be fully
consistent with innocence.” See id. In fact, trial counsel offered
alternative 	explanations 	for 	Escobar-Florez’s 	alleged 	flight,
including that he was “in this country illegally.”

State v. Escobar-Florez
20170390-CA 	25 	2019 UT App 135
“after the commission of the crime charged.” Id. ¶ 25 (emphasis
added) (cleaned up). As discussed, three witnesses at trial and
the police reports show that Escobar-Florez disappeared after
the rape. See id. A jury could reasonably infer from this evidence
that Escobar-Florez fled “out of a consciousness of guilt,” see id.
¶ 28, and the flight instruction was therefore supported by the
evidence in this case.
III. Sufficiency of the Evidence
¶59 	Finally, 	Escobar-Florez 	contends 	that 	the 	evidence 	is
insufficient to sustain his conviction for rape of a child and that
the district court therefore erred in denying his motion for a
directed verdict. “A person commits rape of a child when the
person has sexual intercourse with a child who is under the age
of 14,” Utah Code Ann. § 76-5-402.1 (LexisNexis 2017),6 and does
so intentionally, knowingly, or recklessly, see id. § 76-2-102.
¶60 	Evidence is sufficient when, viewed in the light most
favorable to the State, there exists “some evidence . . . from
which a reasonable jury could find that the elements of the crime
had 	been 	proven 	beyond 	a 	reasonable 	doubt.” 	See State 	v.
Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (cleaned up). Our “role is
to determine whether the state has produced believable evidence
on 	each 	element 	of 	the 	crime 	from 	which 	a 	jury, 	acting
reasonably, could convict the defendant.” Id. ¶ 32 (cleaned up).
In so doing, we do not “weigh the evidence” or judge credibility.
Id. (cleaned up).
¶61 	In 	challenging 	the 	sufficiency 	of 	the 	evidence,
Escobar-Florez raises two distinct arguments. First, he asserts
6. Although the relevant statute has been amended since the
time of the offense, the amendments are not material to our
analysis. We therefore cite the current version of the Utah Code.

State v. Escobar-Florez
20170390-CA 	26 	2019 UT App 135
that 	because 	Victim’s 	testimony 	was 	uncorroborated 	and
inconsistent, 	it 	was 	“inherently 	improbable” 	and 	there 	was
insufficient evidence to convict. Second, he asserts that “the State
failed to prove that [he] had sex with [Victim].”
¶62 	Escobar-Florez’s first assertion that Victim’s testimony
was “inherently improbable” suggests that the district court
should have disregarded Victim’s testimony when determining
whether 	he 	was 	entitled 	to 	a 	directed 	verdict 	based 	on
insufficient evidence. Under the inherent improbability doctrine,
a court may disregard testimony that is “inherently improbable”
when evaluating the sufficiency of the evidence. State v. Robbins,
2009 UT 23, ¶ 13, 210 P.3d 288. This doctrine is limited and may
be invoked “only in those instances where (1) there are material
inconsistencies 	in 	the 	testimony 	and 	(2) 	there 	is 	no 	other
circumstantial [evidence] or direct evidence of the defendant’s
guilt.” Id. ¶ 19; see also State v. Prater, 2017 UT 13, ¶ 38, 392 P.3d
398 (explaining that the inherent improbability doctrine applied
in 	Robbins 	because 	of 	“inconsistencies 	in 	the 	[witness’s]
testimony plus the patently false statements the [witness] made
plus the lack of any corroboration”). We reject Escobar-Florez’s
inherent-improbability argument because it is unpreserved.
¶63 	“As a general rule, claims not raised before the trial court
may not be raised on appeal.” State v. Gonzalez, 2015 UT 10, ¶ 24,
345 P.3d 1168 (cleaned up). And “generally, a defendant must
raise 	the 	sufficiency 	of 	the 	evidence 	by 	proper 	motion 	or
objection to preserve the issue for appeal.” State v. Holland, 2018
UT App 203, ¶ 8, 437 P.3d 501 (cleaned up). “Further, where a
motion for a directed verdict makes general assertions but fails
to assert the specific argument raised on appeal, the directed
verdict motion itself is insufficient to preserve the more specific
argument for appeal.” State v. Gallegos, 2018 UT App 112, ¶ 14,
427 	P.3d 	578 	(cleaned 	up). 	As 	relevant 	here, 	an 	argument
asserting the inherent improbability of a witness’s testimony is
“distinct” from a broad argument about the sufficiency of the

State v. Escobar-Florez
20170390-CA 	27 	2019 UT App 135
evidence. See State v. Doyle, 2018 UT App 239, ¶ 14, 437 P.3d
1266; see also id. ¶ 19 (stating that “not every insufficiency
challenge 	raises 	[an 	inherent-improbability] 	issue” 	under
Robbins).
¶64 	At trial, Escobar-Florez moved for a directed verdict only
on the ground that “there is insufficient evidence that sexual
intercourse 	actually 	occurred.” 	But 	an 	objection 	to 	the
sufficiency of the evidence on one element (like this one) is not
specific enough to preserve the issue of whether a witness’s
testimony is so inherently improbable that it should be ignored
before the court reviews the sufficiency of the evidence. See id.
¶¶ 16–19. Here, Escobar-Florez did not alert the district court
that 	Victim’s 	testimony 	should 	be 	disregarded 	under 	the
inherent improbability doctrine. He did not raise this specific
argument in moving for a directed verdict or at any other time.
He therefore did not preserve the issue for appeal, see id., and he
has 	not 	argued 	for 	the 	application 	of 	an 	exception 	to 	the
preservation rule.
¶65 	As 	for 	his 	preserved 	challenge 	to 	the 	evidentiary
sufficiency on one element of the crime, we conclude that,
viewing the evidence in the light most favorable to the State,
there was evidence from which the jury reasonably could find
beyond a reasonable doubt that Escobar-Florez had sex with
Victim. See Montoya, 2004 UT 5, ¶ 29. Indeed, Victim testified at
trial 	that 	Escobar-Florez 	had 	sex 	with 	her. 	The 	State 	also
presented circumstantial evidence that this happened, including
that, after the abuse, Victim’s behavior changed in ways that
were 	deemed 	significant 	by 	her 	parents. 	This 	evidence 	is

State v. Escobar-Florez
20170390-CA 	28 	2019 UT App 135
sufficient to prove that Escobar-Florez had sexual intercourse
with Victim, and we therefore reject his sufficiency challenge.7
CONCLUSION
¶66 	Escobar-Florez has not established that his trial counsel
rendered 	constitutionally 	deficient 	performance. 	He 	has not
demonstrated 	that 	his 	trial 	counsel’s 	alleged 	failure 	to
sufficiently probe the potential jurors during voir dire resulted in
the seating of an actually biased juror. We also disagree with
Escobar-Florez that his trial counsel performed deficiently when
he stipulated to the admission of unredacted police reports. And
regarding 	his 	claims 	that 	counsel 	failed 	to 	adequately
communicate 	with 	him 	and 	failed 	to 	conduct 	sufficient
investigation, Escobar-Florez has not alleged facts that could
support 	a 	determination 	that 	counsel 	was 	constitutionally
ineffective, and we deny his accompanying motion for a rule 23B
remand.
¶67 	In addition, Escobar-Florez did not show error in the
district court’s decisions to instruct the jury on flight and to deny
him a directed verdict. We therefore affirm.
7. “[I]n the event that any one error is insufficient for reversal,”
Escobar-Florez requests that this court reverse “based on the
cumulative 	effect 	of 	the 	errors.” 	“Under 	the 	doctrine 	of
cumulative error, we will reverse if the cumulative effect of the
several errors undermines our confidence that a fair trial was
had.” State v. Beverly, 2018 UT 60, ¶ 80, 435 P.3d 160 (cleaned up).
Because Escobar-Florez has not established multiple errors, we
have no errors to accumulate and the cumulative error doctrine
does not apply. See id.