State v. Bragg

1. The Honorable Judith M. Billings, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2013 UT App 282
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
TROY BRAGG,
Defendant and Appellant.
Opinion
No. 20120304-CA
Filed November 29, 2013
Eighth District Court, Vernal Department
The Honorable Edwin T. Peterson
No. 101800246
Colleen K. Coebergh, Attorney for Appellant
John E. Swallow and Kris C. Leonard, Attorneys
for Appellee
SENIOR JUDGE JUDITH M. BILLINGS authored this
Opinion, in which JUDGES GREGORY K. ORME and
MICHELE M. CHRISTIANSEN concurred.1
BILLINGS, Senior Judge:
¶1 Troy Bragg appeals from his convictions on three counts of
aggravated sexual abuse of a child, each a first degree felony, see
Utah Code Ann. § 76-5-404.1 (LexisNexis Supp. 2013). For the
reasons stated herein, we reject Bragg’s arguments on appeal and
affirm his convictions.

State v. Bragg
20120304-CA 2 2013 UT App 282
BACKGROUND
¶2 In April 2009, Bragg was staying at a motel in Salt Lake City
when he met C.M. (Mother) and her five boys, including four-year-
old B.M. Bragg developed a rapport with the family, and over the
next few weeks he and Mother kept in contact. Soon thereafter,
Mother and the boys went to visit Bragg at his home in Vernal.
Bragg asked them to move in with him, and Mother agreed.
¶3 Around the time that Mother and the boys moved into
Bragg’s house, Bragg disclosed to Mother that he was on the sex
offender registry for abusing his own daughter (Daughter) when
she was six or seven years old. He claimed that the abuse had only
happened once and attributed the offense in large measure to his
alcohol use. Mother spoke with Daughter, who was in her twenties
by then, about the abuse. Although Daughter confirmed that the
abuse had occurred, Mother nevertheless chose to move herself
and the boys into Bragg’s home.
¶4 The two adults initially shared a bedroom, but no romantic
relationship developed, and Bragg eventually began sleeping on a
couch in the living room. While the relationship between Bragg and
Mother failed to flourish, Bragg and B.M. became increasingly
close. Bragg began spending his leisure time alone with B.M. and
buying him gifts. Bragg would often sleep with B.M., and B.M.
began calling Bragg “Dad.”
¶5 Over the next year, B.M. informed Mother of several
disturbing incidents involving Bragg. B.M. told Mother that while
he and Bragg were alone on a camping trip, Bragg had put his
hand inside B.M.’s underwear and touched his penis. Bragg denied
the allegation when Mother confronted him but said he might have
accidentally rubbed against B.M. while he was sleeping. B.M. also
told Mother that Bragg looked at pornography on his computer
that included men performing oral sex on boys. When Mother
confronted Bragg about the pornography, Bragg claimed that B.M.

State v. Bragg
20120304-CA 3 2013 UT App 282
had seen “pop-ups” that had unexpectedly appeared on his
computer and that he had tried to get rid of.
¶6 About a year after Mother and the boys moved in with
Bragg, Mother took three of the boys to Salt Lake City for medical
appointments. She left one of the remaining boys with Daughter
but, at Bragg’s request, left B.M. alone with Bragg. The next day,
Mother became worried when she could not contact Bragg or B.M.
When she finally reached Bragg a few days later, Bragg was
evasive about where he and B.M. had been. Mother told Bragg that
she was coming to pick up B.M. at Bragg’s job site and that she
would go to the police if B.M. was not there. When Mother
successfully retrieved B.M., he came outside to her car with several
new items; Bragg would not come outside.
¶7 The next day, B.M. told Mother that Bragg had been
“rubbing lotion” on him. Mother later testified that B.M. then told
her that Bragg “had told him that when [Bragg] was a young boy,
he liked to put lotion on his finger and then gestured sticking it in
his bottom.” Mother told Daughter about B.M.’s disclosures. By
this time, Daughter was also aware of B.M.’s oldest brother’s
suspicions that Bragg was molesting B.M. The thirteen-year-old
brother had told Daughter that he had witnessed Bragg placing his
penis against B.M.’s bottom and “humping” him. Daughter
contacted the police.
¶8 After the police had been notified, Bragg told Mother on one
occasion that B.M. would frequently act out sexually after
showering and that during B.M.’s last visit, Bragg had rubbed
lotion on B.M. to calm him down. On another occasion, Bragg
apologized to Mother and stated that he did not mean for things to
happen or to go as far as they did. Bragg told Mother that “no
amount of prison time would stop him from getting out and doing
it again” and that he had undergone therapy and counseling but
that it had not helped.

State v. Bragg
20120304-CA 4 2013 UT App 282
¶9 When the police completed their investigation, which
included an interview with B.M. and his oldest brother, the State
charged Bragg with three counts of aggravated sexual abuse of a
child. The three counts were based on allegations that Bragg had
showed B.M. how to masturbate by rubbing his penis with lotion
and putting his finger in his anus; that Bragg had engaged in what
B.M. called “pee-pee wars,” which involved Bragg and B.M.
rubbing their penises together; and that Bragg had “humped” B.M.
as witnessed by his oldest brother.
¶10 After a hearing conducted on the first day of trial but
outside the presence of the jury, the district court ruled that
Daughter could testify about her own sexual abuse by Bragg. The
district court also ruled that testimony pertaining to Bragg’s
pornography use and his inadvertent touching of B.M. while the
two were camping was admissible because it was alleged in the
criminal information against Bragg. The district court also granted
the State’s pre-trial motion to admit the taped interviews of B.M.
and his oldest brother.
¶11 After a three-day trial, the jury convicted Bragg on all three
counts. The district court sentenced Bragg to prison terms of fifteen
years to life for each conviction, with two of the terms to run
concurrently with each other and the third term to be served
consecutively to the first two. Bragg timely appeals.
ISSUES AND STANDARDS OF REVIEW
¶12 First, Bragg argues that he received ineffective assistance of
counsel at his trial due to multiple alleged shortcomings by his trial
counsel. We evaluate ineffective assistance of counsel claims raised
for the first time on direct appeal to determine if relief is warranted
as a matter of law. State v. Phillips, 2012 UT App 286, ¶ 11, 288 P.3d
310 (“[W]e must decide whether defendant was deprived of the
effective assistance of counsel as a matter of law.”). Bragg also
seeks a remand to the district court for the entry of factual findings

State v. Bragg
2. Bragg raises several of his issues under the doctrine of plain error
because he failed to preserve them below. To obtain relief under
the plain error doctrine, Bragg must show that “(i) [a]n 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. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).
20120304-CA 5 2013 UT App 282
he claims are necessary for this court’s resolution of his ineffective
assistance of counsel claims. See generally Utah R. App. P. 23B. To
obtain a rule 23B remand, a criminal defendant must present
affidavit evidence of nonspeculative facts not fully appearing in the
record that demonstrate both deficient performance by counsel and
prejudice to the defendant. State v. Johnston, 2000 UT App 290,
¶¶ 7–15, 13 P.3d 175 (per curiam).
¶13 Second, Bragg argues that he is entitled to a new trial due to
prosecutorial misconduct. “We review a trial court’s handling of
claimed prosecutorial misconduct for an abuse of discretion.” State
v. King, 2010 UT App 396, ¶ 13, 248 P.3d 984.
¶14 Third, Bragg argues that the district court committed plain
error when it allowed testimony that impermissibly bolstered
B.M.’s credibility. “[W]e grant a trial court broad discretion to2
admit or exclude evidence and will disturb its ruling only for abuse
of discretion . . . .” State v. Gallup, 2011 UT App 422, ¶ 12, 267 P.3d
289 (citation and internal quotation marks omitted).
¶15 Fourth, Bragg argues that the district court committed plain
error when it failed to bifurcate his trial. Bragg argues that the
aggravating factor of his prior sexual abuse conviction should have
been presented to the jury only after it had reached a determination
that he had committed one or more of the alleged acts of abuse of
B.M. We review the district court’s failure to bifurcate a criminal

State v. Bragg
20120304-CA 6 2013 UT App 282
trial for an abuse of discretion. See State v. Reed, 2000 UT 68, ¶ 34,
8 P.3d 1025.
¶16 Fifth, Bragg argues that the district court committed plain
error in admitting evidence of his prior acts under rules 404(b) and
404(c) of the Utah Rules of Evidence. We review the district court’s
evidentiary rulings for an abuse of discretion. See Gallup, 2011 UT
App 422, ¶ 12; see also State v. Pullman, 2013 UT App 168, ¶ 7, 306
P.3d 827 (“[W]e review a trial court’s decision to admit evidence
under rule 404(b) of the Utah Rules of Evidence under an abuse of
discretion standard.”). Bragg further argues that the district court’s
instructions to the jury on rules 404(b) and 404(c) were incorrect
and constituted plain error. “‘Claims of erroneous jury instructions
present questions of law that we review for correctness.’” State v.
Loeffel, 2013 UT App 85, ¶ 7, 300 P.3d 336 (quoting State v. Jeffs, 2010
UT 49, ¶ 16, 243 P.3d 1250).
¶17 Sixth, Bragg argues that his due process rights were violated
due to his having inadequate notice of the charged conduct
throughout the proceedings, thus entitling him to a new trial. A
claim of inadequate notice presents a question of law that we
review for correctness. State v. Wilcox, 808 P.2d 1028, 1031 (Utah
1991).
¶18 Finally, Bragg argues that his convictions should be reversed
under the doctrine of cumulative error. “Under the cumulative
error doctrine, we will reverse only if the cumulative effect of the
several errors undermines our confidence that a fair trial was had.”
State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993).
ANALYSIS
I. Ineffective Assistance of Counsel
¶19 Bragg argues that his trial counsel provided him with
ineffective assistance of counsel based on multiple allegations of

State v. Bragg
3. Bragg’s brief makes several other claims of ineffective assistance
of counsel based on counsel’s general unpreparedness and conduct
at trial. The brief additionally contains multiple footnotes
requesting that various failures to object and other omissions by
counsel be considered in conjunction with his claims of ineffective
assistance. We determine that none of these arguments establish
the required showing of both deficient performance by counsel and
prejudice to Bragg, see State v. Phillips, 2012 UT App 286, ¶ 11, 288
P.3d 310.
20120304-CA 7 2013 UT App 282
counsel’s deficient performance at trial. These allegations include
counsel’s failure to respond to the State’s pretrial motion to admit
prior act evidence under rule 404 of the Utah Rules of Evidence,
failure to respond to the State’s motion to admit the recorded
testimony of B.M. and his older brother pursuant to rule 15.5 of the
Utah Rules of Criminal Procedure, and “opening the door” to
rebuttal testimony from Bragg’s son (Son) by eliciting Bragg’s
testimony denying his previous abuse of Son. To establish3
ineffective assistance of counsel, Bragg must show “(1) that
counsel’s performance was so deficient as to fall below an objective
standard of reasonableness and (2) that but for counsel’s deficient
performance there is a reasonable probability that the outcome of
the trial would have been different.” State v. Phillips, 2012 UT App
286, ¶ 11, 288 P.3d 310 (citation and internal quotation marks
omitted); see also Strickland v. Washington, 466 U.S. 668 (1984).
¶20 We disagree with Bragg that counsel performed ineffectively
by failing to oppose the State’s motions to allow prior bad acts
evidence and to admit the recorded testimony of B.M. and his older
brother. It appears that the State’s motions were well taken, and
Bragg has not established on appeal that the motions would not
have been granted in large part even if his counsel had formally
opposed the motions. Rule 404(c) of the Utah Rules of Evidence
provides for the admission of “evidence that the defendant
committed any other acts of child molestation” to prove propensity
in child molestation cases. Utah R. Evid. 404(c)(1). Further, rule 15.5

State v. Bragg
4. This is not to say that trial counsel should not have responded to
the State’s motions—and perhaps handled other matters below in
a different manner than he did—as a matter of zealous advocacy or
even rudimentary professionalism.
5. Bragg’s counsel did object to certain hearsay statements
contained in the recording of B.M.’s brother, and the district court
gave a curative instruction about the hearsay to the jury. Bragg
does not identify the contents of the hearsay on appeal, nor does he
make any separate argument relating to the hearsay evidence.
20120304-CA 8 2013 UT App 282
of the Utah Rules of Criminal Procedure provides a procedure
whereby the recorded testimony of children under the age of
fourteen may be played to a jury. See Utah R. Crim. P. 15.5(a). To
the extent that the State’s motions sought to admit evidence that
was clearly allowed under these rules, counsel’s failure to formally
oppose the motions cannot be deemed deficient performance by
counsel. See State v. Gunter, 2013 UT App 140, ¶ 35, 304 P.3d 8664
(“There is no requirement that counsel engage in futile acts.”).
¶21 Furthermore, Bragg has failed to show that he suffered any
prejudice from his counsel’s failure to oppose the motions. As to
the prior bad acts evidence, Bragg does not identify any particular
evidence that could have been excluded but was not. Nor does he
demonstrate how any improper admission of evidence created a
greater likelihood of conviction in light of the other evidence
presented at trial, including some clearly admissible prior bad acts
evidence. As to the recorded statements, Bragg has not established
that he would have been able to exclude B.M.’s recorded statement,
as B.M. was only seven years old at the time of trial. Although
counsel could likely have excluded the recorded statements of
B.M.’s brother, who was fifteen at the time of trial, Bragg has
shown no prejudice from the admission of the recording. B.M.’s
brother testified at trial, and Bragg has made no showing that the
recording contained information that B.M.’s brother did not or
could not have repeated at trial. For these reasons, we conclude5

State v. Bragg
20120304-CA 9 2013 UT App 282
that Bragg has failed to establish prejudice arising from his trial
counsel’s failure to oppose the State’s evidentiary motions.
¶22 Bragg also argues that his trial counsel provided ineffective
assistance when he “opened the door” to rebuttal testimony from
Son that Bragg had sexually abused him in a manner similar to
how Bragg was accused of abusing B.M. The allegations that Bragg
had previously abused Son only came to light on the first day of
trial, during the hearing on the admission of evidence under rule
404. At the hearing, while Daughter was describing her own
childhood abuse by Bragg, she was asked if she had ever witnessed
Bragg sexually abusing anyone else. She responded that she had
witnessed Bragg abusing her younger brother, Son, when he was
about B.M.’s age. Daughter repeated this information during her
subsequent testimony before the jury. Prior to Bragg taking the
witness stand, the prosecutor warned Bragg’s counsel that if Bragg
denied abusing Son, the prosecutor would seek to introduce Son’s
own testimony about the alleged abuse.
¶23 Thus, by the time Bragg took the stand, his counsel was
faced with two bad options: fail to question Bragg about his abuse
of Son, leaving unchallenged an allegation of abuse very similar to
Bragg’s charged abuse of B.M.; or have Bragg deny the abuse,
knowing that the State would then likely put Son on the witness
stand as a rebuttal witness. Even if counsel’s necessary election
between these two bad options does constitute deficient
performance, we are unconvinced that counsel’s election
prejudiced Bragg in light of the multitude of other evidence against
him, which included testimony from both B.M. and his brother
describing Bragg’s abuse of B.M. as well as Daughter’s descriptions
of Bragg abusing both her and Son.
¶24 In sum, we conclude that Bragg has failed to demonstrate
actions or omissions by his trial counsel that were both deficient
and prejudicial. See generally State v. Phillips, 2012 UT App 286, ¶ 11,

State v. Bragg
6. We also deny Bragg’s motion for a remand pursuant to rule 23B
of the Utah Rules of Appellate Procedure. Bragg seeks a rule 23B
remand to pursue a list of matters relating to potential ineffective
assistance of counsel claims. Specifically, Bragg’s remand motion
seeks a hearing in the district court to explore the reasons or
rationale behind various decisions made by Bragg’s trial counsel.
However, Bragg has failed to meet the requirements for such a
remand that have been established by case law.
“The purpose of Rule 23B is for appellate counsel to put on
evidence he or she now has, not to amass evidence that might help
prove an ineffectiveness of counsel claim.” State v. Johnston, 2000
UT App 290, ¶ 7, 13 P.3d 175 (per curiam). To this end, appellate
counsel is required to submit affidavit evidence setting forth
nonspeculative facts showing the alleged deficient performance of
trial counsel. See id. ¶¶ 8–11. Bragg has submitted no such affidavit
evidence and is thus not entitled to a remand under rule 23B. See id.
¶ 10 (“Given the rule’s clear emphasis on specific factual
allegations, it would be improper to remand a claim under rule 23B
for a fishing expedition.” (citation and internal quotation marks
omitted)).
20120304-CA 10 2013 UT App 282
288 P.3d 310. For these reasons, we reject Bragg’s ineffective
assistance of counsel claims.6
II. Prosecutorial Misconduct
¶25 Bragg argues that he is entitled to a new trial due to
misconduct by the prosecutor during his cross-examination of
Bragg. At one point during the lengthy cross-examination, after
Bragg had provided an explanation of one of the alleged instances
of abuse, the prosecutor stated, “Would it surprise you that I don’t
believe a word you just told me?” Bragg’s counsel immediately
sought to object to the prosecutor’s comment, but the district court
anticipated and sustained the objection on the grounds that the
prosecutor’s comment was “argumentative.” The prosecutor
replied, “I’ll withdraw that, your Honor. I’m sorry,” and continued
the cross-examination without further incident.

State v. Bragg
7. We acknowledge that Utah law appears to be somewhat
unsettled on the issue of who bears the burden to establish
prejudice or lack thereof arising from instances of prosecutorial
misconduct, as well as by what standard the prejudice showing
must be made. See State v. Wright, 2013 UT App 142, ¶ 41 n.6, 304
P.3d 887 (discussing split of authority on this issue). However,
Bragg argues on appeal that he bears the burden of showing
prejudice, and we review his claim accordingly.
20120304-CA 11 2013 UT App 282
¶26 On appeal, Bragg argues that the prosecutor’s comment
constitutes prosecutorial misconduct entitling him to a new trial. To
obtain a new trial based on prosecutorial misconduct, Bragg must
show that “‘the actions or remarks of . . . counsel call to the
attention of the jury a matter it would not be justified in
considering in determining its verdict’” and that, under the
circumstances of the particular case, “‘the error is substantial and
prejudicial such that there is a reasonable likelihood that, in its
absence, there would have been a more favorable result.’” State v.
Kohl, 2000 UT 35, ¶ 22, 999 P.2d 7 (quoting State v. Longshaw, 961
P.2d 925, 928 (Utah Ct. App. 1998)). We agree with Bragg that the7
prosecutor’s comment expressing his own disbelief of Bragg’s
testimony was improper. Cf. State v. Davis, 2013 UT App 228, ¶ 102,
311 P.3d 538 (“[S]uch comments are improper when the jury could
reasonably believe that the prosecutor was indicating a personal
belief in the witness’ credibility.” (citation and internal quotation
marks omitted)). However, under the circumstances, we see no
prejudice to Bragg resulting from the comment.
¶27 We agree with the State that the exchange following the
prosecutor’s comment made it clear to the jury that the remark was
inappropriate and should not be considered. The district court did
not even wait to hear defense counsel’s full objection before
sustaining the objection and stating that the remark was
argumentative. The prosecutor immediately withdrew the remark
and apologized. Additionally, the district court instructed the jury
both before and after trial that it was to consider only the evidence

State v. Bragg
20120304-CA 12 2013 UT App 282
admitted in the case and that statements by the attorneys did not
constitute evidence. See generally State v. King, 2010 UT App 396,
¶ 23, 248 P.3d 984 (identifying “a curative instruction admonishing
the jury to dispassionately consider and weigh the evidence and
instructing them not to consider the statements of counsel as
evidence” as one factor that mitigates against a finding of prejudice
(citation and internal quotation marks omitted)). We conclude that
the prosecutor’s one-time statement of disbelief, which was
immediately disapproved by the district court and withdrawn with
apology by the prosecutor, did not affect the likelihood of Bragg’s
conviction.
¶28 Further, the effect of the prosecutor’s comment must be
weighed against the other evidence in the case. See id. (“If proof of
defendant’s guilt is strong, the challenged conduct or remark will
not be presumed prejudicial.” (citation and internal quotation
marks omitted)). Here, evidence of Bragg’s guilt came from
multiple sources including B.M.’s recorded interview, testimony
from Mother and Daughter, and Bragg’s own inculpatory
statements. In light of the extensive array of evidence against
Bragg, we cannot say that the prosecutor’s comment resulted in
any greater likelihood of conviction. Because Bragg has not
demonstrated prejudice arising from the prosecutor’s improper
comment, we reject his argument that the comment entitles him to
a new trial.
III. Testimony Bolstering B.M.’s Credibility
¶29 Bragg argues that the district court committed plain error
when it allowed the detective who had conducted the recorded
interview of B.M. to testify that B.M.’s interview statements seemed
“genuine” and that B.M. did not appear to have been coached. In
order to obtain a new trial under the doctrine of plain error, Bragg
must show that the district court committed error, that the error
should have been obvious to the district court, and that the error
prejudiced Bragg by creating a reasonable likelihood of a less

State v. Bragg
20120304-CA 13 2013 UT App 282
favorable result. See State v. Wallace, 2002 UT App 295, ¶ 16, 55 P.3d
1147.
¶30 During the detective’s testimony at trial, the following
exchange took place between the prosecutor and the detective:
Q . . . During the course of the interview, . . . did
[B.M.’s responses] ever deviate? I mean, as far as
what he did disclose to you? Or did he simply
describe it, the same thing happening in a different
way?
A He was—he was consistent . . . .
Q Okay. And from your training and experience
and being in the interview and then watching it, I
assume at least a couple times since you’ve done the
interview, does [B.M.] appear to be genuine in his
responses or does he appear to be a coached child?
A Appears to be genuine.
Q Okay. Have you ever had children who were,
what appeared to you to be parroting a story?
A Yes. I have.
Q Okay. Are they able to remain consistent in
their disclosure to you or is it difficult for them?
A It’s difficult. They forget what they’re
supposed to say.
We agree with Bragg that the admission of this testimony
constituted error that should have been obvious to the district
court.

State v. Bragg
8. We recognize the existence of some cases that have allowed
testimony about the consistency of another’s statements under the
reasoning that rule 608 of the Utah Rules of Evidence does not
prohibit “testimony from which a jury could infer the veracity of
the witness.” State v. Adams, 2000 UT 42, ¶ 14, 5 P.3d 642 (emphasis
added); see, e.g., State v. Bair, 2012 UT App 106, ¶ 47, 275 P.3d 1050;
State v. Cruz, 2002 UT App 106U, para. 1. However, in this case, the
combined statements that B.M. appeared to be genuine, consistent,
and not coached clearly violated rule 608. See Adams, 2000 UT 42,
¶¶ 19–20.
20120304-CA 14 2013 UT App 282
¶31 Rule 608(a) of the Utah Rules of Evidence “prohibits any
testimony as to a witness’s truthfulness on a particular occasion.”
State v. Adams, 2000 UT 42, ¶ 11, 5 P.3d 642; see also Utah R. Evid.
608(a). The detective’s testimony that B.M. appeared “to be
genuine” during his interview was a direct comment on B.M.’s
truthfulness and, as such, clearly violated rule 608. See Adams, 2000
UT 42, ¶ 14. Additionally, testimony that a sexual abuse victim’s
interview statements were consistent and did not appear to be
coached has been held to constitute both error and obvious error.
See id. ¶¶ 19–20. Here, the district court’s admission of the
detective’s testimony that B.M. was consistent and genuine and did
not appear to have been coached similarly constitutes obvious
error.8
¶32 However, even obvious error by the district court will not
result in the reversal of a criminal conviction unless the error was
prejudicial, i.e., unless it created “a sufficiently high likelihood of
a different result such that our confidence in the outcome is
undermined.” Id. ¶ 20. Here, as in State v. Adams, 2000 UT 42, 5 P.3d
642, there was “ample evidence” of Bragg’s guilt above and beyond
the improperly bolstered testimony. See id. ¶ 21. In addition to
B.M.’s interview testimony, the State presented Mother’s testimony
about events occurring between Bragg and B.M., Daughter’s
testimony of Bragg’s prior sexual abuse of both herself and Son,
and evidence of Bragg’s own inculpatory statements. In light of this

State v. Bragg
20120304-CA 15 2013 UT App 282
ample evidence, our confidence in the jury’s verdict is not
undermined by the detective’s testimony improperly bolstering
B.M.’s credibility.
IV. Bifurcation
¶33 Bragg argues that the district court committed plain error
when it failed to sua sponte bifurcate his trial into a guilt phase and
an aggravation phase. Under such a scheme, the State would have
had to prove Bragg’s sexual abuse of B.M. before the jury heard
evidence of the aggravating factor—Bragg’s prior convictions for
sexually abusing Daughter. Bragg relies on State v. Reed, 2000 UT
68, ¶ 22, 8 P.3d 1025, as establishing that bifurcation was required.
¶34 However, Reed expressly recognized that bifurcation is not
required when the aggravating conviction is otherwise admissible
at trial. See id. ¶¶ 25–31 (holding that trial court did not err in
failing to bifurcate trial where aggravating offense was admissible
under rule 404(b) of the Utah Rules of Evidence). In this case, the
district court correctly determined that Bragg’s prior convictions,
as well as Daughter’s testimony about the conduct giving rise to
those convictions, were admissible under rule 404(c) of the Utah
Rules of Evidence. Thus, under Reed, Bragg has not demonstrated
any error by the district court in failing to bifurcate his trial.
V. Rule 404 Issues
¶35 Bragg argues that the district court committed plain error in
admitting evidence of Bragg’s prior bad acts under rules 404(b) and
404(c) of the Utah Rules of Evidence. Bragg also argues that the
district court’s jury instructions regarding this evidence were
insufficient and constituted plain error. We disagree.
¶36 As to the admission of prior act evidence, Bragg
acknowledges that the district court did not admit any evidence

State v. Bragg
9. At oral argument, Bragg suggested that rule 404(c) of the Utah
Rules of Evidence is limited to evidence of a defendant’s prior
criminal convictions for child molestation and does not allow for
the admission of the facts underlying those convictions. We see no
such limitations in the language of rule 404(c), which allows for the
admission of “evidence that the defendant committed any other
acts of child molestation.” Utah R. Evid. 404(c)(1).
10. Bragg does not argue that his trial counsel’s approval of the rule
404 instructions constitutes ineffective assistance of counsel.
20120304-CA 16 2013 UT App 282
pursuant to rule 404(b). On appeal, Bragg fails to identify any
particular evidence that was admitted under rule 404(c) but should
not have been. Further, the interpretation and application of rule9
404(c) appears to be a matter of first impression in Utah, making a
challenge to rule 404(c) evidence particularly unsuited for a plain
error analysis. See State v. Davis, 2013 UT App 228, ¶ 32, 311 P.3d
538 (“[A]n error is not obvious if there is no settled appellate law
to guide the trial court.” (citation and internal quotation marks
omitted)). For these reasons, we reject Bragg’s argument that the
court committed plain error in admitting prior bad act evidence.
¶37 As to the rule 404 instructions, Bragg’s counsel invited any
error in the instructions by affirmatively approving them. See State
v. Alfatlawi, 2006 UT App 511, ¶ 26, 153 P.3d 804 (“A defendant
invites error where he affirmatively approve[s] of the jury
instructions at trial.” (alteration in original) (citation and internal
quotation marks omitted)). During the jury instruction colloquy,
defense counsel asked if the district court would be “keeping” the
proposed rule 404 instructions. The district court stated that it
would do so if the parties agreed that keeping the proposed
instructions was appropriate, to which defense counsel responded,
“I think that’s acceptable.” This affirmative representation to the
district court that the rule 404 instructions were acceptable to
defense counsel invited any error in the content of the instructions
and precludes plain error review. See id.10

State v. Bragg
20120304-CA 17 2013 UT App 282
VI. Notice of Charged Conduct
¶38 Bragg argues that his due process and statutory rights to
adequate notice of the charges against him were violated because
“the Information was unclear as to what conduct was charged, and
what conduct the State purported to use as ‘prior bad acts’
evidence.” See generally Utah Const. art. I, § 12 (“In criminal
prosecutions the accused shall have the right . . . to demand the
nature and cause of the accusation against him . . . .”); McNair v.
Hayward, 666 P.2d 321, 326 (Utah 1983) (“[D]ue process requires
that an accused be given sufficiently precise notification of the date
of the alleged crime that he can prepare his defense.”). We
disagree.
¶39 It appears that Bragg’s claimed confusion about the exact
nature of the charges arose in part from the format of the
information, which merely alleged as to each count that Bragg “did
commit sexual abuse of a child” without enumerating the specific
acts that constituted the charged offense. In addition, each count
listed potentially applicable aggravating factors, which included
that Bragg “used, showed, or displayed pornography” during the
offense.
¶40 Despite any lack of clarity in the information, we see no
violation of Bragg’s notice or other due process rights. Bragg
waived his right to a preliminary hearing, foregoing one
opportunity to explore the exact nature of the charges against him
and resolve any confusion about what those charges entailed.
Bragg could also have filed a pretrial motion for a bill of
particulars, but elected not to. See Utah Code Ann. § 77-14-1
(LexisNexis 2012) (“The prosecuting attorney, on timely written
demand of the defendant, shall within 10 days, or such other time
as the court may allow, specify in writing as particularly as is
known to him the place, date and time of the commission of the
offense charged.”). Nor is there any other indication in the record

State v. Bragg
11. We also recognize that the record on appeal does not contain
every pretrial communication between a criminal defendant and
the State. Thus, Bragg may well have had additional pretrial notice
of the State’s theory of prosecution through such mechanisms as
discovery or plea negotiations.
12. Additionally, at closing arguments, the prosecutor conceded to
the jury that the State had failed to prove the pornography
allegations.
13. Counsel’s failure to request a continuance is one of the issues
that Bragg asks us, in a footnote, to “consider[] in light of the Issue
presented related to Ineffective Assistance of Counsel.” This does
not constitute adequate briefing of an ineffective assistance of
counsel claim, and we therefore do not consider whether Bragg’s
counsel provided ineffective assistance when he failed to request
a continuance at trial. See State v. Merrill, 2012 UT App 3, ¶ 27, 269
P.3d 196 (“An issue is inadequately briefed when the overall
analysis of the issue is so lacking as to shift the burden of research
and argument to the reviewing court.” (citation and internal
quotation marks omitted)).
20120304-CA 18 2013 UT App 282
that, in the weeks and months leading up to trial, Bragg was
concerned about inadequate notice of the charges against him.11
¶41 Once trial commenced, the prosecutor outlined the State’s
theory of the case at both the rule 404 hearing and in opening
arguments. In each instance, the prosecutor identified the factual
basis of the three charged counts: Bragg’s using lotion to help B.M.
rub his own penis and penetrate himself anally with his finger;
Bragg’s engagement in “pee-pee wars” with B.M.; and Bragg’s
“humping” of B.M. To the extent that these factual allegations12
constituted a surprise to Bragg or his counsel, Bragg could have
requested a continuance, but he did not do so. Cf. State v. Perez,13
2002 UT App 211, ¶ 37, 52 P.3d 451 (“When the prosecution
introduces unexpected testimony, a defendant essentially waive[s]
his right to later claim error if the defendant fails to request a

State v. Bragg
14. We also include in our cumulative error analysis any instances
of deficient performance of counsel that Bragg may have identified
in his multiple ineffective assistance of counsel claims. See State v.
Dunn, 850 P.2d 1201, 1229 (Utah 1993) (“In assessing a claim of
cumulative error, we consider all the identified errors, as well as
any errors we assume may have occurred.”).
20120304-CA 19 2013 UT App 282
continuance or seek other appropriate relief under Rule 16(g).”
(alteration in original) (citation and internal quotation marks
omitted)).
¶42 In light of the circumstances described above, we cannot say
that Bragg has established any violation of his due process rights
or other rights to have notice of the nature of the charges against
him. Accordingly, we reject his argument that due process or other
notice-related violations entitle him to a new trial.
VII. Cumulative Error
¶43 Bragg’s final argument is that he is entitled to a reversal of
his convictions under the doctrine of cumulative error. “‘Under the
cumulative error doctrine, we will reverse only if the cumulative
effect of the several errors undermines our confidence that a fair
trial was had.’” State v. Davis, 2013 UT App 228, ¶ 106, 311 P.3d 538
(quoting State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993)).
¶44 As discussed above, Bragg has established only two errors
that occurred at his trial: the prosecutor’s statement that he did not
believe Bragg’s testimony and the district court’s plain error
relating to testimony that bolstered B.M.’s credibility. We have14
determined that each of these errors, viewed in isolation, was
harmless error. For the same reasons, we also conclude that their
cumulative effect does not “undermine[] our confidence that a fair
trial was had” so as to warrant reversal of Bragg’s convictions. See
id.

State v. Bragg
20120304-CA 20 2013 UT App 282
CONCLUSION
¶45 Although Bragg has raised multiple claims of error
occurring below, we have rejected each of his arguments, with two
exceptions. We have determined that the prosecutor committed
misconduct when he expressed his disbelief of Bragg’s testimony
and that the district court committed plain error when it allowed
the detective to bolster B.M.’s credibility by characterizing his
interview performance as consistent, genuine, and not coached.
However, in light of the nature of these errors and the otherwise
extensive and persuasive evidence against Bragg, we conclude that
they are harmless errors, whether viewed individually or in
combination. For these reasons, we affirm Bragg’s convictions.