State v. Plazola

2023 UT App 161
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
DAMASO R ENE PLAZOLA,
Appellant.
Opinion
No. 20210249-CA
Filed December 29, 2023
Fourth District Court, Provo Department
The Honorable Robert A. Lund
No. 191402197
Jennifer L. Foresta and Douglas J. Thompson,
Attorneys for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee
JUDGE JOHN D. L UTHY authored this Opinion, in which JUDGES
M ICHELE M. C HRISTIANSEN F ORSTER and A MY J. O LIVER concurred.
LUTHY, Judge:
¶1 	Damaso Rene Plazola appeals his conviction on one count
of 	sexual 	abuse 	of 	a 	child. 	He 	argues 	that 	the 	trial 	court
improperly admitted evidence at trial, specifically, testimony
regarding a previously dismissed sexual abuse allegation and the
full recording of an interview with the alleged victim in this case.
We conclude that even if the court erred when it determined that
the previously dismissed allegation was admissible, this error was
harmless. However, we also conclude that admission of the full
recording of the interview with the alleged victim constituted
plain error, and we therefore vacate Plazola’s conviction and
sentence and remand the matter for a new trial.

State v. Plazola
20210249-CA 	2 	2023 UT App 161
BACKGROUND
¶2 	After a report to the Division of Child and Family Services
alleging that two sisters (Maria and Claudia)0F
1 were victims of
child 	sexual 	abuse, 	the 	children 	were 	interviewed 	at 	the
Children’s 	Justice 	Center 	(CJC) 	in 	July 	2017. 	In 	their 	CJC
interviews, each girl reported being inappropriately touched by
Plazola.
¶3 	Twelve-year-old Maria disclosed that in 2015, while at a
church youth laser tag activity, Plazola, who was in attendance as
a leader, was following her and touched her genitals with his
hand. She said that although she initially thought the touching
was accidental, when it happened a second time, she concluded it
was intentional. She reported that Plazola touched her six or
seven times over the course of the activity.
¶4 	Eleven-year-old 	Claudia 	disclosed 	two 	separate
allegations of inappropriate touching. The first was during a
quinceañera party at a church. She said that she was throwing
paper airplanes with Plazola in a room apart from where the party
was occurring when Plazola told her he thought she had a scrape
on her arm and then took her hand and placed it over his clothed
genitals. Plazola then reportedly said he saw no scrape and let go
of her hand.
¶5 	Claudia also disclosed that on another occasion she was at
a church activity walking around looking for chalk when she
encountered Plazola, who told her there might be chalk on top of
the chalkboards. Claudia said that she told Plazola she was going
to get a chair to look on top of a chalkboard but Plazola instead
lifted her up so she could check for chalk and touched her genitals
and buttocks (over her clothing) while doing so. Claudia said that
she saw no chalk, and Plazola put her down.
1. Pseudonyms.

State v. Plazola
20210249-CA 	3 	2023 UT App 161
¶6 	Based on these reports, the State initially charged Plazola
with four counts of sexual abuse of a child—two counts based on
the laser tag incident, one count based on the paper airplane
incident, and one count based on the chalkboard incident. At the
preliminary hearing, however, Claudia testified that she could not
remember where Plazola had touched her when he lifted her up
during the chalkboard incident. The State therefore moved to
amend the information to remove the charge for the chalkboard
incident, conceding that it had not met the standard of proof. The
State ultimately proceeded to trial on just two charges of sexual
abuse of a child—one based on the laser tag incident and one
based on the paper airplane incident.
¶7 	Prior 	to 	trial, 	the 	parties 	filed 	numerous 	motions
addressing the admissibility of evidence regarding the uncharged
chalkboard incident and the admissibility of the video recordings
of the children’s CJC interviews. Plazola moved to exclude all
evidence related to the chalkboard incident because the charge
related to that incident had been dismissed, and he argued that
where 	Maria 	and 	Claudia 	would 	be 	past 	their 	fourteenth
birthdays at the time of trial, the CJC videos should not be
admitted 	because 	“they 	do 	not 	meet 	the 	threshold 	age
requirement of the Utah Rules of Criminal Procedure [rule] 15.5,
and constitute impermissible hearsay.” See Utah R. Crim. P.
15.5(a) (providing conditions for the admissibility of a prior
recording of an alleged child sexual abuse victim who is younger
than fourteen years of age). The State moved to admit the
evidence relating to the chalkboard incident pursuant to rule
404(c) of the Utah Rules of Evidence as a previous act of child
molestation, and the State assured the court that it did “not
anticipate using [r]ule 15.5 in order to admit the CJC videos.”
¶8 	These evidentiary issues were thereafter addressed in a
pretrial conference. During that conference, the State recognized
that for admission of evidence under rule 404(c), “what is
required is specifically evidence that the defendant committed

State v. Plazola
20210249-CA 	4 	2023 UT App 161
any other acts of child molestation.” It also acknowledged that it
had experienced some issues “get[ting] the CJC video in front of
the [c]ourt” and that the court had not yet received a copy of the
full interviews. But the State pointed to an unofficial transcription
of a portion of Claudia’s CJC video that the defense had included
in its pleadings as containing evidence that the chalkboard
incident included an act of sexual molestation. Plazola’s counsel
(Counsel) responded by focusing on the fact that whether the
chalkboard incident included an act of sexual molestation “ha[d]
been previously litigated and dismissed” during the preliminary
hearing. The court ruled that evidence related to the chalkboard
incident would be allowed at trial.
¶9 	As to the CJC videos, Counsel again argued that under rule
15.5 the videos should not be admitted at trial due to the alleged
victims’ ages at the time of trial. The State responded that because
Claudia and Maria would be testifying at trial, it did not intend to
seek admission of the CJC videos under rule 15.5 but that it would
seek admission of the videos under rule 801(d)(1)(B) of the Utah
Rules of Evidence as prior consistent statements should the
alleged victims’ credibility be attacked by the defense during trial.
The court agreed that the State’s position was appropriate and
ruled, “I’m going to conclude, [Counsel], . . . that if you do attempt
to impugn the credibility of these witnesses, that the State would
be able to offer those recordings as prior consistent statements.”
¶10 	The case then proceeded to trial. During his opening
statement, Counsel addressed circumstances surrounding the
paper airplane incident and told the jury, “[Y]ou will hear from
witnesses who were at the party, whose testimony will lead you
to the inevitable conclusion that the things that [Claudia] is going
to testify about just couldn’t happen.” Counsel also briefly
addressed the circumstances surrounding the laser tag allegations
and stated similarly, “[M]ultiple witnesses will testify about
things that also contradict what [Maria] is talking about occurred

State v. Plazola
20210249-CA 	5 	2023 UT App 161
at the laser tag. Things that make it impossible for what she said
happened [to] have happened.”
¶11 	Both Maria and Claudia testified for the State at trial. Maria
testified regarding the laser tag incident, and Claudia testified
regarding both the paper airplane incident and the chalkboard
incident—this time recounting that Plazola “put his hand on [her]
vagina” when he lifted her up to search for chalk. During his
cross-examination 	of 	Claudia, 	Counsel 	led 	the 	following
exchange regarding her preliminary hearing testimony, in which
she had said she could not remember where Plazola had touched
her during the chalkboard incident:
Q. . . . . Last year when you testified, you said you
didn’t remember where his hand was when he
picked you up, and right now you said that [was]
because you were uncomfortable; is that right?
A. Yeah.
. . . .
Q. So are you saying now that last year you knew
his hand was on your vagina but you didn’t say that
last year?
A. Uh, yeah, kind of.
Q. And you said you didn’t say that because it made
you uncomfortable?
A. Yeah.
Q. You had promised to tell the truth, though, last
year, right?
A. Yeah.

State v. Plazola
20210249-CA 	6 	2023 UT App 161
¶12 	After the State called its remaining witnesses, including an
expert who testified about the “typical way” a child “behave[s]”
during a CJC interview, it moved for admission of the CJC videos
under rule 801(d)(1)(B), pointing to several instances in opening
statements and cross-examination of the alleged victims where
Counsel had “impugn[ed] their credibility.” Counsel responded
that the State could have directly asked the alleged victims about
the content of the videos and the statements made therein instead
of “just showing . . . two 40-minute videos carte blanche to the
jury.” But the trial court granted the motion:
Because I foresaw this issue coming up, I specifically
raised this morning with the parties the issue of
evidence rule 801[(d)(1)(B)] because I wanted to
make sure, [Counsel], you understood that if you
attempted to impeach these witnesses that . . . they
could be rehabilitated with those statements, and
because there is in the record a . . . charge of recent
fabrication by defense through your examinations
of them, through your opening statement, I find that
it is permissible . . . for the State to offer any prior
consistent statements. Now, I haven’t seen these
interviews. I don’t know if they are consistent. So on
the representation of the State . . . that the interviews
with [the] CJC are consistent with their testimony
today, I will allow the State to play . . . those
interviews.
Although the court permitted the admission of both CJC videos,
only the video of Claudia’s interview was ultimately presented to
the jury, due to a language translation issue with the video of
Maria’s interview. The video of Claudia’s interview was played
for the jury in its entirety. Only a few minutes of her interview
addressed the alleged touching during the chalkboard incident.
Most of it concerned other matters, such as Claudia’s interests, her
neighborhood, and the airplane incident.

State v. Plazola
20210249-CA 	7 	2023 UT App 161
¶13 	The jury found Plazola not guilty on the charge involving
Maria and the laser tag incident, but it found him guilty on the
charge involving Claudia and the paper airplane incident. Plazola
was sentenced, and this appeal followed.
ISSUES AND STANDARDS OF REVIEW
¶14 	Plazola argues that the trial court erred in admitting
evidence regarding the chalkboard incident under rule 404(c) of
the Utah Rules of Evidence and in admitting the entire video of
Claudia’s CJC interview. Admission of evidence is generally
reviewed for abuse of discretion. See Anderson v. Thompson, 2008
UT App 3, ¶ 25, 176 P.3d 464. Each of Plazola’s claims of error,
however, asserts a misunderstanding of the rules of evidence,
which is a “threshold legal error” and “not a matter on which any
deference is owing to the trial court.” State v. Richardson, 2013 UT
50, ¶ 23, 308 P.3d 526. Accordingly, we review these claims for
correctness. See id.
ANALYSIS
I. The Chalkboard Incident
¶15 	Plazola contests the trial court’s admission of evidence of
the chalkboard incident at trial under rule 404(c) of the Utah Rules
of Evidence.1F
2 The general rule is that “[e]vidence of a crime,
2. The State contends that Plazola failed to preserve this issue for
review. However, “if the merits of a claim can easily be resolved
in favor of the party asserting that the claim was not preserved,
we readily may opt to do so without addressing preservation.”
State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (cleaned up),
cert. denied, 496 P.3d 718 (Utah 2021). Such is the case here.
Furthermore, because we address this claim on the merits, we
(continued…)

State v. Plazola
20210249-CA 	8 	2023 UT App 161
wrong, or other act is not admissible to prove a person’s character
in order to show that on a particular occasion the person acted in
conformity with the character.” Utah R. Evid. 404(b)(1). Such
evidence may be admissible, however, if it is used for a non-
character purpose, “such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Id. R. 404(b)(2). Yet evidence of prior bad acts is
not so limited in child molestation cases, which are specifically
addressed in rule 404(c): “In a criminal case in which a defendant
is accused of child molestation, the court may admit evidence that
the defendant committed any other acts of child molestation to
prove a propensity to commit the crime charged.” Id. R. 404(c)(1).
“The drafters of our rules of evidence have determined, as a policy
matter, that propensity evidence in child molestation cases can
come in on its own terms, as propensity evidence, even if there is
no other plausible or avowed purpose for such evidence.” State v.
Fredrick, 2019 UT App 152, ¶ 42, 450 P.3d 1154, cert. denied, 458
P.3d 748 (Utah 2020).
¶16 	Nevertheless, 	even 	when 	prior 	bad 	acts 	evidence
falls 	under 	the 	rule 	404(c) 	exception 	and 	may 	be 	used 	as
propensity 	evidence, 	it 	must 	meet 	other 	evidentiary
requirements. 	See, 	e.g., 	id. 	¶ 	43 	(“Even 	though 	prosecutors
need not articulate a non-character purpose for evidence of
previous 	acts 	of 	child 	molestation 	in 	order 	to 	win 	its
admission, 	they 	still 	must 	demonstrate 	that 	the 	proposed
evidence comports with rules 402 and 403 of the Utah Rules
of 	Evidence.”). 	Specifically, 	the 	evidence 	must 	be 	relevant,
see Utah R. Evid. 402, and its probative value may not be
“substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
need not address Plazola’s alternative arguments regarding the
plain error and ineffective assistance of counsel exceptions to the
preservation requirement.

State v. Plazola
20210249-CA 	9 	2023 UT App 161
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence,” id. R. 403.
¶17 	The relevance requirement “is a low bar.” State v. Thornton,
2017 UT 9, ¶ 61, 391 P.3d 1016. “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.” Utah R. Evid. 401 (emphasis added). But
if the relevance of a piece of evidence hinges (i.e., is conditional)
on a showing that some fact actually occurred—for example, that
a prior incident of child molestation occurred and the defendant
was the culprit—then the court must first address that condition.
Id. R. 104(a) (“The court must decide any preliminary question
about whether a witness is qualified, 	a 	privilege exists, or
evidence is admissible.”). And the proponent of the evidence
must introduce proof “sufficient to support a finding that the fact
does exist.” Id. R. 104(b). Thus, while it is ultimately the jury’s role
“to decide whether the condition of fact is fulfilled and to
ultimately view the evidence as credible, it is the duty of the court
to decide whether there is sufficient evidence upon which the jury
could make such a determination.” State v. Lucero, 2014 UT 15,
¶ 19, 328 P.3d 841 (cleaned up), abrogated on other grounds by
Thornton, 2017 UT 9.
¶18 	Accordingly, “[b]efore evidence may be admitted under
[r]ule 404(c), the trial court should conduct a hearing out of the
presence of the jury to determine . . . whether the accused
committed other acts, which if committed in this State would
constitute a sexual offense or an attempt to commit a sexual
offense.” Utah R. Evid. 404 advisory committee’s note to 2008
amendment. At that hearing, the State must introduce proof
“sufficient to support a finding that the fact [of prior sexual abuse]
does exist.” Id. R. 104(b).
¶19 	Plazola contends that the State did not introduce proof at
the rule 404(c) hearing sufficient to support a finding that he

State v. Plazola
20210249-CA 	10 	2023 UT App 161
molested Claudia during the chalkboard incident because the
only evidence before the court was Claudia’s preliminary hearing
testimony, 	which 	already 	had 	been 	deemed 	insufficient 	to
support the charge of sexual abuse, and a partial, unofficial
transcript of Claudia’s CJC interview that appeared in Plazola’s
briefing. The State counters by arguing, among other things, that
even if the court erroneously decided to admit evidence of the
chalkboard incident without first ensuring that a jury could find
that the incident included an instance of sexual molestation, the
error was harmless because “[a]t trial, [Claudia] described Plazola
lifting her up and moving his hand on her vagina during the
chalkboard incident.” We agree with the State.
¶20 	“Under the harmless error doctrine, an error is harmless
and does not require reversal if it is sufficiently inconsequential
that we conclude there is no reasonable likelihood that the error
affected the outcome of the proceedings.” State v. Ray, 2022 UT
App 95, ¶ 51, 516 P.3d 329 (cleaned up), cert. denied, 526 P.3d 827
(Utah 2022). Importantly, the alleged error here was not that the
court allowed the jury to hear evidence of the chalkboard incident
without that evidence being able to support a finding that the
incident included an act of sexual molestation. That is because
Claudia ended up testifying at trial that Plazola “put his hand on
[her] vagina” when he lifted her up in search of chalk. The alleged
error was the court’s failure to ensure prior to its admission that
the evidence would be sufficient to support a finding that the
incident included an act of sexual molestation. And that error
proved to be harmless since Claudia’s trial testimony ended up
providing the jury with the required evidentiary basis on which
to find the conditional fact fulfilled.2F
3 Thus, even assuming (but
3. 	This 	harmless 	error 	analysis 	may 	occasionally 	allow 	the
admission of rule 404(c) evidence to stand in the absence of a
proper pre-admission hearing. We trust, however, that courts will
remain reticent to forgo a proper pre-admission hearing so as to
(continued…)

State v. Plazola
20210249-CA 	11 	2023 UT App 161
not deciding) that the court failed to ensure prior to its admission
that the chalkboard incident evidence would support a finding
that the incident included an act of sexual molestation, “[w]e do
not reverse [the] trial court for committing harmless error.” See
State v. Loose, 2000 UT 11, ¶ 10 n.1, 994 P.2d 1237.
II. The CJC Interview
¶21 	Plazola’s other assertion of error is that the trial court
plainly erred by allowing the entirety of the video of Claudia’s
CJC interview to be shown to the jury.3F
4 “To demonstrate plain
error, a defendant must establish that (i) an error exists; (ii) the
error should have been obvious to the trial court; and (iii) the error
is harmful, i.e., absent the error, there is a reasonable likelihood of
a 	more 	favorable 	outcome 	for 	the 	appellant, 	or 	phrased
differently, our confidence in the verdict is undermined.” State v.
Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (cleaned up). We agree with
Plazola that presentation of the entire forty-minute video of
Claudia’s CJC interview to the jury amounted to plain error.
A. 	Error
¶22 	The 	trial 	court 	admitted 	the 	video 	of 	Claudia’s 	CJC
interview under rule 801(d)(1)(B) of the Utah Rules of Evidence.
This rule provides that a declarant’s out-of-court statement “is not
hearsay” if “[t]he declarant testifies and is subject to cross-
avoid the potential for a mistrial that might follow the erroneous
admission of evidence that suggests propensity but is insufficient
to 	support 	a 	finding 	that 	sexual 	abuse 	actually 	previously
occurred.
4. Because we resolve this issue based on plain error, we need not
address the parties’ preservation arguments related to this issue.
See generally State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443
(recognizing plain error as an exception to the preservation
requirement).

State v. Plazola
20210249-CA 	12 	2023 UT App 161
examination about a prior statement, and the statement . . . is
consistent with the declarant’s testimony and is offered to rebut
an express or implied charge that the declarant recently fabricated
it or acted from a recent improper influence or motive in so
testifying.” Utah R. Evid. 801(d)(1)(B).
¶23 	During his opening statement at trial, Counsel addressed
circumstances surrounding the paper airplane incident and told
the jury, “[Y]ou will hear from witnesses who were at the party,
whose testimony will lead you to the inevitable conclusion that
the things that [Claudia] is going to testify about just couldn’t
happen.” And after Claudia testified that Plazola “put his hand
on [her] vagina” when he lifted her up during the chalkboard
incident, 	Counsel 	elicited 	a 	concession 	from 	her 	on 	cross-
examination that during the preliminary hearing she had testified
that she “didn’t remember where [Plazola’s] hand was” when he
picked her up, even though she had “promised to tell the truth.”
The State then argued that because Counsel’s opening statement
and cross-examination had “impugn[ed] [Claudia’s] credibility,”
the video of her CJC interview—which was consistent with her
trial 	testimony—should 	be 	admitted 	to 	“rehabilitate” 	her
credibility.
¶24 	The 	court 	ruled 	that 	Claudia’s 	CJC 	interview 	was
admissible, explaining that there had been a “charge of recent
fabrication” 	through 	Counsel’s 	examination 	of 	Claudia 	and
through his “opening statement.” The court noted that it had not
seen the video of the interview and, thus, “[didn’t] know if [the
interview was] consistent” with Claudia’s trial testimony. But “on
the representation of the State” that her videotaped interview was
consistent with her testimony, the court admitted the interview in
its entirety. The court’s ruling contained two key errors.
¶25 	First, 	the 	court 	erred 	by 	determining 	that 	Counsel’s
opening statement warranted admission of the CJC interview
under 	rule 	801(d)(1)(B). 	“Rule 	801(d)(1)(B) 	applies 	only 	to

State v. Plazola
20210249-CA 	13 	2023 UT App 161
premotive, consistent, out-of-court statements.” State v. Bujan,
2008 UT 47, ¶ 11, 190 P.3d 1255. The purpose of the rule “is to
admit statements that rebut a charge of recent fabrication or
improper influence or motive, not to bolster the believability of a
statement already uttered at trial.” Id. Thus, only a statement “that
directly rebuts charges of recent fabrication is appropriate.” Id.
¶ 10; see also Tome v. United States, 513 U.S. 150, 157–58 (1995)
(“The [r]ule speaks of a party rebutting an alleged motive, not
bolstering the veracity of the story told.”).4F
5
¶26 	Counsel’s comment about the paper airplane incident
during his opening statement—that the jurors would “hear from
witnesses . . . whose testimony [would] lead [them] to the
inevitable conclusion that the things that [Claudia] [would] testify
about just couldn’t happen”—was not a charge of improper
motive or recent fabrication. It was an assertion that Claudia’s
testimony and other witnesses’ testimony would be irreconcilable
and that the other witnesses’ testimony would be more believable.
Because 	rule 	801(d)(1)(B) 	is 	not 	a 	vehicle 	to 	“bolster 	the
believability” of a particular witness or statement, Bujan, 2008 UT
47, ¶ 11, Counsel’s opening statement was not a proper basis for
the admission of the CJC interview under rule 801(d)(1)(B).
¶27 	Second, while the court rightly determined that Counsel’s
cross-examination of Claudia invited admission of portions of the
CJC interview, it erred in admitting the entire interview. When a
prior oral out-of-court statement is offered to rebut a charge of
recent fabrication, portions of the statement that go “beyond the
information necessary to rebut the charges of recent fabrication”
5. In interpreting Utah’s rule 801(d)(1)(B), our supreme court has
previously 	relied 	on 	the 	United 	States 	Supreme 	Court’s
interpretation of rule 801(d)(1)(B) of the Federal Rules of Evidence
in Tome v. United States, 513 U.S. 150 (1995), because “our rule is
analogous” to the federal rule. State v. Bujan, 2008 UT 47, ¶ 8, 190
P.3d 1255.

State v. Plazola
20210249-CA 	14 	2023 UT App 161
are inadmissible. Id. ¶ 10. “Pursuant to the rule of completeness,
. . . the standard for admitting oral statements is only admission
of those things that are relevant and necessary to qualify, explain,
or 	place 	into 	context 	the 	portion 	of 	testimony 	already
introduced.” 	Id. 	(cleaned 	up); 	see 	also 	id. 	(concluding 	that
admission of a detective’s “entire conversation” with a witness
was improper “because it went beyond the information necessary
to rebut the charges of recent fabrication”); State v. Thomas, 777
P.2d 445, 449–50 (Utah 1989) (determining that the court erred in
admitting testimony that “was not limited to simply rebutting”
claims but included “the full content of [an] interview”); State v.
Sibert, 310 P.2d 388, 392 (Utah 1957) (holding that “[i]nsofar as [an
officer’s] testimony actually supported the parts of [the witness’s]
testimony 	upon 	which 	impeachment 	was 	attempted,” 	the
evidence “was properly admitted” but that to the extent “the
officer was permitted to go beyond [this] . . . and to give the other
details of [the witness’s] story,” the out-of-court statement “was
improperly admitted”).
¶28 	Counsel’s 	cross-examination 	of 	Claudia, 	highlighting
the difference between her trial testimony that Plazola “put
his hand on [her] vagina” during the chalkboard incident and
her 	preliminary 	hearing 	testimony 	that 	she 	could 	not
remember 	where 	he 	touched 	her 	during 	that 	incident,
implied 	that 	Claudia 	had 	recently 	fabricated 	the 	assertion
that 	Plazola 	touched 	her 	vagina. 	This 	is 	especially 	so
where Counsel emphasized that Claudia had “promised to tell
the truth” during the preliminary hearing. Thus, the portions
of the CJC interview where Claudia said that Plazola touched
her 	buttocks 	and 	genitals 	during 	the 	chalkboard 	incident
were admissible to rebut the suggestion that she had only
recently fabricated that assertion. So too were any portions of
the CJC interview that were necessary to “qualify, explain,
or place into context” her statement that Plazola had touched
her 	buttocks 	and 	genitals 	during 	the 	chalkboard 	incident.
Bujan, 2008 UT 47, ¶ 10 (cleaned up). But all other portions of

State v. Plazola
20210249-CA 	15 	2023 UT App 161
the 	CJC 	interview 	remained 	inadmissible 	under 	rule
801(d)(1)(B).5F
6
B. 	Obviousness
¶29 	The errors that prompted the trial court to admit the
interview in its entirety—rather than admit only appropriate
portions of it—should have been obvious to the trial court. “An
obvious error is one that contravenes settled appellate law.” State
v. Isom, 2015 UT App 160, ¶ 28, 354 P.3d 791 (cleaned up), cert.
denied, 364 P.3d 48 (Utah 2015). And the law related to the trial
court’s errors was settled at the time of Plazola’s trial. See State v.
Bujan, 2008 UT 47, ¶¶ 10–11, 190 P.3d 1255 (emphasizing that rule
801(d)(1)(B) is not a vehicle to “bolster the believability” of a
particular 	witness 	or 	statement, 	that 	“[o]nly 	testimony 	that
directly rebuts charges of recent fabrication is appropriate,” and
that statements going “beyond the information necessary to rebut
the charges of recent fabrication” are inadmissible); State v.
Thomas, 777 P.2d 445, 449–50 (Utah 1989) (finding error where the
court admitted “the full content of [an] interview” rather than the
portions “limited to simply rebutting” claims); State v. Sibert, 310
P.2d 388, 392 (Utah 1957) (differentiating between evidence
“properly admitted as rehabilitating testimony” and evidence
“improperly admitted” because it went beyond that purpose).
6. The court’s error of allowing a presentation to the jury of
inadmissible portions of the interview was both facilitated and
amplified by its ruling on the issue without ever having viewed
the video. “To the extent practicable, the court must conduct a
jury trial so that inadmissible evidence is not suggested to the jury
by any means.” Utah R. Evid. 103(d). A court will inevitably find
it difficult to comply with this mandate if it does not know what
is contained in the nontestimonial evidence it admits over a
party’s objection.

State v. Plazola
20210249-CA 	16 	2023 UT App 161
C. 	Harm
¶30 	The trial court’s errors were also harmful to Plazola.
Factors relevant to the inquiry of whether erroneously admitted
evidence 	was harmful 	to 	a 	defendant 	include 	“the 	relative
importance 	of 	the 	[evidence], 	whether 	the 	[evidence] 	was
cumulative, 	the 	presence 	or 	absence 	of 	corroborating 	or
contradicting 	evidence, 	the 	extent 	of 	cross-examination, 	the
degree of emphasis placed on the evidence by the prosecution,
and the overall strength of the prosecution’s case.” State v. McNeil,
2013 UT App 134, ¶ 64, 302 P.3d 844, aff’d, 2016 UT 3, 365 P.3d 699.
These factors weigh heavily in favor of a determination that the
erroneous admission of Claudia’s full CJC interview was harmful
to Plazola.
¶31 	Neither Claudia’s nor Maria’s allegations of sexual abuse
by Plazola were supported by physical evidence. No testimony
from other witnesses directly supported their accounts. And the
State placed considerable emphasis on Claudia’s CJC interview.
In that regard, the video occupied the last nearly forty minutes of
the roughly four hours the State devoted to presenting evidence,
and the State told the jury in closing:
You watched the [CJC] video of [Claudia]. You saw
that little girl talking about what happened to her a
long time ago, back in 2017, and how consistently
she . . . testified here. You saw her demeanor and
how that . . . was consistent with what the expert
said, 	how 	[children] 	would 	act. 	You 	saw 	her
innocence 	as 	she 	was 	attempting 	to 	show 	the
interviewer her neighborhood directions with a
piece of clay.
Notably, by encouraging the jury to fall sway to emotion by
considering 	Claudia’s 	“innocence” 	as 	she 	described 	her
neighborhood to the interviewer, the State invited the jury to
focus on inadmissible portions of the video and use it in an

State v. Plazola
20210249-CA 	17 	2023 UT App 161
impermissible way. Cf. State v. Akok, 2015 UT App 89, ¶ 30, 348
P.3d 377 (“The prosecutor’s final statement in closing argument
appealed to the jurors’ emotions, and it was therefore improper
. . . .”). The video also included a hearsay-upon-hearsay statement
that 	could 	have 	been 	interpreted 	as 	an 	allegation 	of 	other
inappropriate touching by Plazola of a neighborhood child, which
statement the State had conceded in pretrial pleadings should be
redacted. Finally, although the type, quantity, and quality of
evidence supporting the two charges was otherwise quite similar,
Plazola was convicted of the charge related to Claudia, whose CJC
interview was played for the jury, but acquitted of the charge
related to Maria, whose CJC interview was not played for the jury.
See State v. Klenz, 2018 UT App 201, ¶ 71 n.15, 437 P.3d 504 (“We
recognize that under some circumstances a mixed verdict can
indicate that the jury was conflicted about the evidence and the
competing versions of events offered by the victim and the
defendant, and that therefore the elimination of certain evidence
may very well have mattered.” (cleaned up)), cert. denied, 437 P.3d
1249 (Utah 2019). For these reasons together, we believe there is a
reasonable 	likelihood 	that 	there 	would 	have 	been 	a 	more
favorable outcome for Plazola—acquittal on both charges—had
admission of Claudia’s CJC interview been appropriately limited.
We therefore vacate Plazola’s conviction and sentence, and we
remand the matter for a new trial.
CONCLUSION
¶32 	Even assuming that the trial court erred by admitting
evidence of the chalkboard incident, that error proved to be
harmless. However, the trial court committed plain error by
admitting the whole of Claudia’s CJC interview under rule
801(d)(1)(B) 	when 	nearly 	all 	of 	the 	interview’s 	contents
constituted 	inadmissible 	hearsay. 	On 	that 	basis, 	we 	vacate
Plazola’s conviction and sentence, and we remand the matter for
a new trial.