State v. Tolman

2025 UT App 188
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
K ASSIE A NGEL TOLMAN ,
Appellant.
Opinion
No. 20230006-CA
Filed December 18, 2025
First District Court, Logan Department
The Honorable Angela Fonnesbeck
No. 191100466
Lyla Mahmoud, Debra M. Nelson, and
Benjamin Miller, Attorneys for Appellant
Derek E. Brown and Karen A. Klucznik,
Attorneys for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and R YAN D. TENNEY
concurred.
ORME, Judge:
¶1 	Kassie Angel Tolman was convicted of child abuse after a
physical altercation that left her son (Son) injured. On appeal, she
argues that Son and his two younger siblings should not have
been permitted to testify outside of her immediate presence at
trial. Further, she argues her defense counsel (Counsel) provided
ineffective assistance in failing to object to what she views as
impermissible other-acts and hearsay evidence. We disagree with
Tolman’s claims and affirm.

State v. Tolman
20230006-CA 	2 	2025 UT App 188
BACKGROUND1
¶2 	In 2019, ten-year-old Son was at Tolman’s apartment one
day for parent-time when Tolman suddenly became angry and
“just came after” him. Son ran down the hall into a bedroom as
Tolman followed, hitting him and pushing him down to the floor.
Tolman “started stomping” on Son’s head and left the room only
to come back with a bag of frozen pizza rolls, which she used to
hit Son in the head and chest. Son’s younger sister (Sister) and
brother (Brother) were also at the apartment that day and
witnessed the beating.
¶3 	Tolman 	then 	called 	her 	grandparents—Son’s
great-grandparents—and asked them to pick Son up. Son was
“bawling,” “shaking,” and “traumatized,” and after observing
bruises on Son’s face, ear, and head, the great-grandparents called
the police. A detective (Detective) documented Son’s injuries the
next day. Detective also set up interviews for Son, Sister, and
Brother at the Children’s Justice Center (CJC). Though Detective
did not conduct the CJC interviews himself, he observed them as
they took place in a different room. Based on the information the
children disclosed, Tolman was charged with one count of child
abuse.
¶4 	Prior to trial, the State sought to admit a past child abuse
conviction involving a 2017 incident wherein Tolman hit Son with
her fists and a metal hanger and told him that she hated him. The
State argued that this prior conviction should be admitted for the
proper, non-character purpose of proving Tolman’s motive in
abusing Son in this case. The district court disagreed, concluding
the evidence would not be offered for a proper non-character
1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Brown, 2025 UT App 31, n.1, 566 P.3d 737 (quotation simplified).

State v. Tolman
20230006-CA 	3 	2025 UT App 188
purpose. The court explained, “The admission of evidence related
to a prior act certainly suggests that I would be admitting it for
purposes of suggesting that the defendant is acting in conformity
with that prior bad act, and I just don’t see any limiting way that
I could possibly correct that through jury instructions.” Thus, the
court 	denied 	the 	State’s 	motion 	to 	admit 	Tolman’s 	prior
conviction.
¶5 	At trial, the prosecutor requested that Son, Sister, and
Brother each be allowed to testify outside of Tolman’s presence.
The prosecutor noted that Son was comfortable testifying in front
of the jury but asked that Sister and Brother testify “in a smaller
setting, not in the courtroom,” stating, “All three of them, I think,
would like to have the defendant able to view but not [be] present
when 	that 	takes 	place.” 	When 	asked 	whether 	he 	had 	any
objection, Counsel responded,
I’m not objecting to the recommended ways of
carrying that out, I just think that there would need
to be some leeway in allowing me to periodically
pause in cross-examination to meet with my client
to make sure that I’m addressing issues that she’s
raising as she watches that. That would be the only
concern 	that 	I 	would 	have 	with 	what’s 	being
presented.
The court then proposed that Son testify in the courtroom before
the 	jury 	and 	that 	Sister 	and 	Brother 	testify 	in 	a 	different
courtroom, with the jury able to view their testimony remotely.
The court arranged for Tolman to watch each child’s testimony
from a private room on a different floor of the courthouse. The
court 	assured 	Counsel 	that 	it 	would 	offer 	breaks 	during
cross-examination to allow him to “follow up with” Tolman.
Counsel did in fact have several opportunities to pause and
consult with Tolman during cross-examination of the children.

State v. Tolman
20230006-CA 	4 	2025 UT App 188
¶6 	Son testified that he had been sitting on the couch, playing
a guitar, when Tolman got “angry” and came after him, hitting
him and “stomping” on his head while wearing a pair of black
boots with heels. He testified that Tolman left the room and came
back with a bag of frozen pizza rolls, which she then used to hit
him on his head and chest. Son testified about being left with
injuries to his ear, face, head, and back.
¶7 	During Son’s testimony, the prosecutor asked, “Have there
been other times where your mom has done things to you?” Son
answered, “Yes,” and recounted the 2017 abuse that the court had
previously excluded.2 He stated, “[S]he put a blanket in my mouth
so I couldn’t yell . . . and started hitting me with the hanger.” Son
also testified that Tolman told him that she hated him. The
prosecutor asked the court to take judicial notice of Tolman’s
conviction based on this prior incident of abuse. Counsel did not
object. 	During 	cross-examination, 	Counsel 	asked 	Son 	about
various violent incidents he had been involved in at school.
¶8 	Sister testified from another courtroom, with her testimony
broadcast by video to the jury and to Tolman. She testified that
she and Brother had gotten out of the shower and were in the
hallway of the apartment when she saw Tolman standing in the
doorway of the children’s bedroom while Son lay on the floor. She
testified that she saw Tolman “hurting” Son, hitting him with
frozen pizza rolls. And she testified that Tolman was wearing
slippers that were “all black.” At one point during Sister’s
testimony, the court told Tolman that “counsel has stipulated at
this time that your video be turned off. You will still be able to see
us and hear us, but we won’t be able to see you at this moment.”
2. As later explained by Counsel on the record, the admission of
this evidence appears to have been the result of an agreement
reached during an in-chambers discussion that took place earlier
that morning. See infra ¶ 10.

State v. Tolman
20230006-CA 	5 	2025 UT App 188
¶9 	Brother testified under the same conditions as Sister. He
stated that when he and Sister left the bathroom that day, they
saw an upset Tolman kicking Son and hitting him with frozen
pizza rolls.
¶10 	After a recess, Counsel made the following statement:
We just want to make sure we put on the record that
there was a conversation in chambers earlier this
morning involving counsel for the State and the
defendant and the Court wherein some potential
evidence that I intended to possibly bring up in
cross-examination 	of 	the 	victim, 	was 	going 	to
implicate 404(a). And as part of that conversation
the State pointed out that under that rule, if I were
to proceed down that road, it would be opening the
door for them to introduce evidence that would
normally, 	potentially 	be 	precluded 	under 	rule
404(a) and 404(b), but that they would then be able
to bring that information up. I agree that that’s the
proper interpretation of the rule.
Had a consultation with my client and after
that consultation, it was concluded that we would
proceed with our cross-examination as planned.
¶11 	The 	trial 	then 	proceeded 	with 	Detective’s 	testimony
about observing the children’s CJC interviews from outside the
interview 	room. 	When 	the 	prosecutor 	asked 	Detective
whether Son testified at trial consistently with the statements
made 	in 	his 	CJC 	interview, 	Counsel 	objected 	on
relevance grounds. 	The 	court 	overruled 	the 	objection, 	and
Detective opined that Son had testified at trial consistently with
his CJC interview. The prosecutor then asked Detective about
certain statements Sister made during her CJC interview that she
was unable to recall at trial. Detective testified that during her

State v. Tolman
20230006-CA 	6 	2025 UT App 188
interview, Sister stated that she saw Tolman “get mad” at Son
because he was playing a guitar, that Tolman “hit” Son with her
shoe and “put him in his room,” that Son had been “thrown to the
ground,” and that Tolman hit both Son and Sister with a bag of
frozen food.
¶12 	The prosecutor then asked Detective whether Brother’s
testimony 	at 	trial 	was 	“more 	consistent 	with” 	Son’s 	trial
testimony 	or 	with 	Brother’s 	CJC 	interview. 	Counsel 	again
objected on relevance grounds, but the court overruled the
objection. 	And 	after 	the 	prosecutor rephrased 	the 	question,
Counsel raised a third relevance objection, which the court also
overruled. Detective then answered that Brother’s trial testimony
was “more consistent” with his CJC interview than with Son’s
trial testimony. And Detective testified that during Brother’s
interview, he disclosed that Tolman got mad at Son because he
said the “f word,” that Tolman hit Son with her shoe and the bag
of pizza rolls while Son was in the bedroom, and that Tolman also
hit Sister with the bag of pizza rolls.
¶13 	Tolman testified in her own defense. She stated that Son
was prone to “outbursts” and “fits of anger” and that on the day
of the incident, Son had been physically fighting with Sister. She
testified that she tried to separate the children by telling Son to go
to his bedroom, and while she denied pushing Son to the ground,
she admitted that there was “a physical struggle trying to get him
into his room.” Tolman also denied kicking or stomping on Son
and stated that she could not have worn the black boots with heels
Son mentioned because she was eight months pregnant at the
time. She also denied hitting Son with the frozen pizza rolls,
saying, 	“I 	don’t 	recall 	any 	of 	this 	happening.” 	On
cross-examination, Tolman testified about her prior child abuse
conviction, maintaining that on the occasion giving rise to that
charge she had also been trying to separate Son from Sister after a
physical altercation that left Sister with a bloody nose.

State v. Tolman
20230006-CA 	7 	2025 UT App 188
¶14 	During closing arguments, the prosecutor told the jury,
You 	heard 	testimony 	in 	this 	case 	of 	a 	prior
conviction for child abuse that [Tolman] has and
that in that case, [Son] told you, he testified that
[Tolman] has told him that she hates him. That may
be motive. That may help you decide whether she
acted intentionally in this case, this alleged incident
of child abuse.
The jury found Tolman guilty of child abuse.
ISSUES AND STANDARDS OF REVIEW
¶15 	On appeal, Tolman argues the district court erred in
allowing 	her 	children 	to 	testify 	outside 	of 	her 	immediate
presence, in contravention of her constitutional right to confront
the witnesses against her. Ordinarily, “whether testimony was
admitted in violation of a defendant’s right to confrontation is a
question of law, which we review for correctness.” State v. Isom,
2015 UT App 160, ¶ 42, 354 P.3d 791 (quotation simplified), cert.
denied, 364 P.3d 48 (Utah 2015). But as discussed in Part I, we
ultimately do not reach the merits of this issue because it was not
preserved and Tolman has not argued an exception to the
preservation rule.
¶16 	Tolman also argues that Counsel provided ineffective
assistance in: (1) stipulating to the children’s remote testimony,
(2) not 	objecting 	to 	the 	evidence 	of 	her 	prior 	child 	abuse
conviction, and (3) not objecting to Detective’s statements about
the children’s CJC interviews on hearsay grounds. “A claim of
ineffective assistance raised for the first time on appeal presents a
question of law,” which we review for correctness. State v. Hatch,
2025 UT App 132, ¶ 9, 577 P.3d 903.

State v. Tolman
20230006-CA 	8 	2025 UT App 188
ANALYSIS
I. The Children’s Testimony
¶17 	Tolman takes issue with the format of her children’s trial
testimony. She argues that the district court allowed her children
to testify outside of her immediate presence without making the
proper findings under rule 15.5 of the Utah Rules of Criminal
Procedure, thus violating her right to confront the children under
the Sixth Amendment to the United States Constitution. See U.S.
Const. amend. VI (providing that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the
witnesses against” them).
¶18 	The State contends that this issue was not preserved for
appeal. But Tolman takes the view that Counsel’s initial objection
to the format of the testimony preserved the constitutional claim
she now raises. We agree with the State.
¶19 	“Ordinarily, an issue must first be raised in the district
court to be preserved for review on appeal.” State v. Dowhaniuk,
2025 UT App 100, ¶ 15, 574 P.3d 1000. “The purpose of this rule is
to put the district court on notice of an issue and provide it with
an opportunity to rule on it.” Id. (quotation simplified). Thus, “the
issue 	must 	be 	specifically 	raised” 	to 	a 	sufficient 	“level 	of
consciousness before the . . . court.” State v. Mayorga, 2024 UT App
182, ¶ 29, 561 P.3d 1184 (emphasis in original; quotation otherwise
simplified), cert. denied, 568 P.3d 261 (Utah 2025). And “if a party
makes an objection at trial based on one ground, this objection
does 	not 	preserve 	for 	appeal 	any 	alternative 	grounds 	for
objection.” State v. Isom, 2015 UT App 160, ¶ 60, 354 P.3d 791
(quotation simplified), cert. denied, 364 P.3d 48 (Utah 2015). This
“preservation rule applies to every claim, including constitutional
questions.” State v. Colwell, 2025 UT App 59, ¶ 6, 569 P.3d 1077
(quotation simplified), cert. denied, 570 P.3d 663 (Utah 2025).

State v. Tolman
20230006-CA 	9 	2025 UT App 188
¶20 	Here, Counsel lodged a limited objection to Tolman’s
remote observation of the children’s testimony, stating, “I’m not
objecting to the recommended ways of carrying that out, I just
think that there would need to be some leeway in allowing me to
periodically pause in cross-examination to meet with my client to
make sure that I’m addressing issues that she’s raising as she
watches that.” Counsel continued, “That would be the only
concern 	that 	I 	would 	have 	with 	what’s 	being 	presented.”
Counsel’s objection certainly alerted the court to a potential
problem under rule 15.5(b)(1)(D) of the Utah Rules of Criminal
Procedure, which requires that if a child testifies outside of the
defendant’s presence, “the defendant has a means of two-way
telephonic communication with the defendant’s attorney during
the child’s testimony.” And Tolman argues that because rule 15.5
is a “codified exception to” and thus “inextricably tied to the
Confrontation 	Clause,” 	this 	objection 	also 	preserved 	the
confrontation issue she now raises. But again, issues must be
raised with specificity to allow the district court to address them.
Mayorga, 2024 UT App 182, ¶ 29. Counsel’s “only concern” was
the logistical challenge of communicating with Tolman under the
proposed remote setup—not the potential confrontation issues it
posed.
¶21 	Thus, because Counsel’s objection did not specifically raise
the constitutional issue, the district court did not have notice of
the issue or an opportunity to address it. As the issue has not been
preserved for review and Tolman has not argued an exception to
the preservation rule, we do not address it further.
II. Ineffective Assistance of Counsel
¶22 	Tolman also argues that Counsel provided ineffective
assistance in stipulating to the format of the children’s testimony,
failing to object to evidence about Tolman’s prior child abuse
conviction, and failing to object to Detective’s testimony about the
children’s CJC interviews on hearsay grounds. For each of these

State v. Tolman
20230006-CA 	10 	2025 UT App 188
claims, Tolman “must show (1) that Counsel’s performance was
deficient, 	meaning 	it 	fell 	below 	an 	objective 	standard 	of
reasonableness, and (2) that the deficient performance prejudiced
the 	defense, 	or, in 	other 	words, 	that there 	is a reasonable
probability that the case would have had a different outcome
absent Counsel’s deficient performance.” Price City v. Buck, 2025
UT App 129, ¶ 7, 577 P.3d 925 (quotation simplified), cert. denied,
Dec. 5, 2025 (No. 20251328). “Because failure to establish either
prong is fatal to a claim of ineffective assistance, we are free to
resolve the claim under either prong.” Id. We resolve each of
Tolman’s claims on the first prong.
¶23 	“In 	evaluating 	the 	reasonableness 	of 	an 	attorney’s
performance, we often look to whether the attorney’s actions were
motivated by strategy.” State v. Cortez-Izarraraz, 2025 UT App 116,
¶ 29, 575 P.3d 1240. “And while the ultimate question is not
whether there was a possible strategic reason for counsel’s
conduct, 	but 	instead 	whether 	that 	conduct 	was 	objectively
reasonable, 	if 	it 	appears 	counsel’s 	actions 	could 	have 	been
intended 	to 	further 	a 	reasonable 	strategy, 	a 	defendant 	has
necessarily 	failed 	to 	show 	unreasonable 	performance.” 	Id.
(quotation 	simplified). 	Thus, 	Tolman 	“must 	overcome 	the
presumption that, under the circumstances, the challenged action
might 	be 	considered 	sound 	trial 	strategy.” 	Strickland 	v.
Washington, 466 U.S. 668, 689 (1984) (quotation simplified). We
conclude that Tolman has not done so in any of the three claimed
instances of deficient performance.
A. 	Agreeing to the Format of the Children’s Testimony
¶24 	In the event that we reach the conclusion that Tolman has
not preserved her confrontation argument, as we did above, see
supra 	¶ 	21, 	she 	alternatively 	argues 	that 	Counsel 	rendered
ineffective assistance in stipulating to the children testifying
outside of her presence, including stipulating to Tolman turning
off her video during portions of Sister’s testimony, as this format

State v. Tolman
20230006-CA 	11 	2025 UT App 188
violated her right to confrontation. But we conclude that Counsel
did not act unreasonably in this regard.
¶25 	The United States Supreme Court has held that “the
Confrontation Clause guarantees the defendant a face-to-face
meeting with witnesses appearing before the trier of fact,” but it
has not declared that right to be “absolute.” State v. Henriod, 2006
UT 11, ¶ 11, 131 P.3d 232 (quotation simplified). “If the State
makes an adequate showing of necessity, the state interest in
protecting 	child 	witnesses 	from 	the 	trauma 	of 	testifying 	is
sufficiently important to justify the use of a special procedure that
permits a child witness to testify in the absence of face-to-face
confrontation.” State v. Isom, 2015 UT App 160, ¶ 48, 354 P.3d 791
(quotation simplified), cert. denied, 364 P.3d 48 (Utah 2015). To that
end, rule 15.5 of the Utah Rules of Criminal Procedure sets out
certain requirements that must be met before a child is permitted
to testify outside the presence of the defendant. Tolman argues
that although Counsel had already lodged one objection based on
rule 15.5, he should have objected again as each child took the
stand to testify. But Counsel may well have decided to forgo such
objections, rule 15.5 aside, if he concluded it would be more
advantageous to Tolman to allow the children to testify outside of
her presence.
¶26 	The State had already contended that Sister and Brother
needed to testify “in a smaller setting, not in the courtroom,” and
that Sister, Brother, and Son “would like to have [Tolman] able to
view [them] but not [be] present when” they testified. Counsel
could reasonably have decided to avoid any risk of emotional
display by the children if they were required to testify in Tolman’s
presence. And, in a similar vein, Counsel could have reasonably
decided not to object to the court instructing Tolman to turn her
video off, thereby avoiding emphasizing whatever caused the
court to do so.

State v. Tolman
20230006-CA 	12 	2025 UT App 188
¶27 	Given this conceivable strategy, we cannot conclude that
Counsel acted unreasonably and, thus, deficiently in agreeing to
the format of the children’s testimony.
B. 	Failing to Object to Other Acts Evidence
¶28 	Despite the court’s prior ruling excluding such evidence,
during the State’s examination of Son, the prosecutor asked about
a previous incident in which Tolman hit Son and told him she
hated him, resulting in her conviction on a prior charge of child
abuse. Tolman argues that Counsel was ineffective in failing to
object to this evidence under rule 404(b) of the Utah Rules of
Evidence. We disagree.
¶29 	Rule 404(b)(1) provides that “[e]vidence of a crime, 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.” But under rule 404(a)(2)(B), “a
defendant may offer evidence of an alleged victim’s pertinent
trait, and if the evidence is admitted, the prosecutor may (i) offer
evidence to rebut it; and (ii) offer evidence of the defendant’s
same trait.”
¶30 	Here, as explained by Counsel on the record, he chose to
introduce 	evidence 	of 	Son’s 	aggressive 	and 	violent 	nature.
Counsel recognized that doing so “would be opening the door for
[the State] to introduce evidence that would normally, potentially
be precluded under rule 404(a) and 404(b),” including Tolman’s
prior child abuse conviction. Counsel stated that he had discussed
this strategy with Tolman and decided to proceed with his
cross-examination of Son “as planned” anyway. This was all
discussed among the parties in-chambers earlier that morning.
The prosecutor then asked Son about Tolman’s prior abuse,
absent objection. And Counsel indeed cross-examined Son about
his own behavior, in furtherance of the defense strategy of
portraying Son as the aggressor.

State v. Tolman
20230006-CA 	13 	2025 UT App 188
¶31 	Counsel reasonably recognized that he likely would not
have been able to introduce evidence of Son’s aggressive nature
without running the risk of the State bringing in Tolman’s own
prior abuse of Son. Perceiving that he could not have it both ways,
Counsel 	reasonably 	refrained 	from 	objecting 	to 	the 	State’s
introduction of the prior conviction. Thus, we cannot say he
performed deficiently in this regard.
C. 	Failing to Properly Object to Hearsay Evidence
¶32 	Detective testified about some of the children’s disclosures
during their CJC interviews. During this testimony, Counsel
made three objections based on relevance, which 	the court
overruled. Tolman argues that Counsel should have instead
objected to Detective’s testimony as inadmissible hearsay. But
Counsel could reasonably have forgone making such objections.
¶33 	The recordings of the CJC interviews themselves would
likely have been admissible under rule 15.5(a) of the Utah Rules
of Criminal Procedure, which provides that in cases involving “a
charge of child abuse . . . the oral statement of a victim or other
witness younger than 14 years of age which was recorded prior to
the filing of an information or indictment is, upon motion and for
good 	cause 	shown, 	admissible 	as 	evidence 	in 	any 	court
proceeding regarding the offense,” provided certain conditions
are met. Counsel could reasonably have concluded that had he
objected to Detective’s testimony on hearsay grounds, the State
would 	have 	moved 	to 	admit 	the 	actual 	recordings 	of 	the
interviews under rule 15.5(a). He could have also reasonably
concluded 	that 	Detective’s 	more 	general 	and 	rather 	brief
testimony about certain statements the children made during
their interviews was less prejudicial to Tolman than would be
playing the recordings of the interviews themselves—with all the
details the children disclosed therein—for the jury. Cf. State v.
Nunez, 2021 UT App 86, ¶ 33, 498 P.3d 458 (recognizing that
defense counsel did not perform deficiently where, when faced

State v. Tolman
20230006-CA 	14 	2025 UT App 188
with whether to “attempt to press for compliance with the
permissive rule 15.5 and risk the likely outcome of having the
entire interview shown to the jury, or allow only the inconsistent
interview sections to come in as the court had ordered,” he chose
to “allow portions of the interview to prevent it from coming into
evidence in its entirety”), cert. denied, 502 P.3d 270 (Utah 2021).
Accordingly, 	we 	conclude 	Counsel’s 	performance 	was 	not
deficient here either.
¶34 	In sum, in each of these instances, Tolman has not shown
that Counsel’s performance was deficient, and she has therefore
not demonstrated that Counsel provided ineffective assistance.3
CONCLUSION
¶35 	Tolman did not preserve her constitutional argument
regarding the remote format of her children’s testimony. And she
has not shown that Counsel was ineffective in stipulating to the
format of the children’s testimony and in failing to object to
evidence of her prior child abuse conviction, nor in objecting to
Detective’s testimony about the children’s CJC interviews on
relevance rather than hearsay grounds. Accordingly, Tolman has
not 	demonstrated 	a 	basis 	for 	reversal, 	and 	we 	affirm 	her
conviction.
3. Tolman argues that the cumulative effect of these errors
requires reversal. But “because we conclude that there are no
errors to accumulate 	here, the cumulative error doctrine is
inapplicable in this case.” State v. Modes, 2020 UT App 136, ¶ 12
n.5, 475 P.3d 153 (quotation simplified).