State v. Francis

2025 UT App 104
THE UTAH C OURT OF APPEALS
STATE OF UTAH ,
Appellee,
v.
R EX A LLEN FRANCIS ,
Appellant.
Opinion
No. 20220669-CA
Filed July 10, 2025
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 191911719
Nathalie S. Skibine and Hillary King,
Attorneys for Appellant
Derek E. Brown, Tera J. Peterson, Tanner Hafen, and
Emily Sopp, Attorneys for Appellee
J UDGE R YAN D. T ENNEY authored this Opinion, in which
J UDGES D AVID N. MORTENSEN and R YAN M. HARRIS concurred.
TENNEY, Judge:
¶1 	Rex Francis was charged with several criminal offenses
involving the alleged sexual abuse of two teenaged girls. At the
close of trial, the jury convicted him of two counts of forcible
sexual abuse and one count of object rape, but it acquitted him of
three other counts. Francis now appeals his convictions on several
grounds.
• 	First, Francis argues that the district court abused its
discretion when it allowed an expert to testify about
common behaviors and characteristics of sexual assault
victims.

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• 	Second, 	Francis 	argues 	that 	the 	court 	erred 	when 	it
sustained an objection to a question that asked a witness to
give her opinion about the character for truthfulness of one
of the victims.
• 	Third, Francis argues that the court erred when it declined
to instruct the jury on a proposed lesser included offense.
• 	Fourth, Francis argues that the court erred when it declined
to give the jury a proposed unanimity instruction.
• 	Finally, Francis asks us to reverse under the cumulative
error doctrine.
¶2 	As explained below, we see no error relating to the expert
testimony issue or the unanimity issue. While we do believe that
the court erred with respect to the other issues, we conclude that
Francis was not harmed by the errors, either individually or
cumulatively. We therefore affirm Francis’s convictions.
BACKGROUND1
¶3 	This case involves Francis’s alleged sexual abuse of two
victims: Alice and Lacy.2
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.
Cesspooch, 	2024 	UT 	App 	15, 	n.1, 	544 	P.3d 	1046 	(quotation
simplified), cert. denied, 550 P.3d 994 (Utah 2024). As discussed
below, each victim in this case alleged that Francis sexually
abused her on many occasions, and a jury later convicted Francis
on some—though not all—of the charged offenses.
2. Both are pseudonyms.

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Alice
¶4 	Alice 	was 	raised 	by 	her 	father 	and 	her 	stepmother
(Stepmother). Stepmother has “been in [Alice’s] life since” she
was “about 2,” and Alice considered Stepmother to be the “only
mother figure” she ever really had.
¶5 	Alice had known Francis since she was about two years
old. At trial, Stepmother testified that Francis was her “biological
brother,” though Alice testified that she thought Francis was
actually 	Stepmother’s 	“half” 	brother. 	Regardless, 	Alice
considered Francis to be her “uncle.”
¶6 	Francis 	“had 	a 	drug 	problem 	over 	the 	years,” 	and
Stepmother’s home was something of a “safe home” for him.
While Alice was growing up, Stepmother would sometimes let
Francis “crash a couple nights” there. In July 2013, when Alice
was about 14 years old, Francis moved in with the family full-
time, and he lived there for about the next two years. Francis slept
in the basement living room, which was just a few feet from
Alice’s room.
¶7 	Alice was introduced to drugs by her biological mother at
a young age, and Alice continued to use drugs after her biological
mother passed away (which was around the time that Alice was
11). When Francis moved into the home, Alice told him about her
drug use, and she then used drugs with him on many occasions.
Francis sometimes gave Alice pills, which the two “usually
crushed up” and “snort[ed],” and although Alice sometimes did
not know for sure what the pills were, she “believed” that they
were “meth” the “majority of time.” Francis also taught Alice how
to use a canned air duster for “huffing.”
¶8 	At trial, Alice testified that Francis touched her in a sexual
manner “[m]ultiple times” during the two years that he lived with
her family. Alice said that Francis touched her vagina “about 20
times” during those years, sometimes over her clothing and

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20220669-CA 	4 	2025 UT App 104
sometimes under her clothing. She said that “[a] lot of the time,”
he would start touching her while she “was asleep,” and that on
other occasions, he would touch her after she had taken drugs and
was “high as a kite,” at which point Francis would “kind of just
go for it” without “necessarily ask[ing] or anything.”
¶9 	Alice also claimed that on two occasions, Francis had
sexual intercourse with her. She said that on one of those
occasions, Francis did so even though she told him “no,” and she
said that on the other occasion, Francis had sex with her while she
was passed out.3
¶10 	Alice said that Francis stopped touching her when she was
16 after she had threatened to tell her father about what was
happening. Alice said that Francis told her that he would stop
only if she sent him nude pictures so that he could “get . . . his
fix,” and she also said that she complied because “[i]t got him to
stop touching [her] physically, and that’s all [she] wanted.”
Lacy
¶11 	Lacy has been friends with Alice since Lacy was around 12
years old. Francis is a close friend of Lacy’s father, and he had also
been friends with Lacy’s family for years. Francis lived with
Lacy’s family several times, and Lacy later testified that Francis
“constantly kind of moved in and out.” Lacy was 11 or 12 the first
time Francis lived with her family, and she was about 15 or 16 the
last time he lived with them. Francis was in his mid-30s during
those years. Lacy later said that she “consider[ed] him” to be her
“uncle, because he was a part of the family for so long.”
¶12 	When Lacy was nine, Francis gave her alcohol for the first
time. During the ensuing years, he gave her an assortment of
3. As will be noted below, the jury later acquitted Francis of both
charges relating to alleged sexual intercourse with Alice.

State v. Francis
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drugs, including “[a]ir duster, meth, pot, marijuana, . . . cigarettes,
pills, [and] Valium.”
¶13 	When Lacy was around 12, she started sleeping on a couch
in the living room of her family home, and although Francis had
a bedroom downstairs, he would often sleep on another couch in
the same room that Lacy slept in.
¶14 	Francis sometimes said things to Lacy that made her
“uncomfortable,” such as that she was “sexy.” Lacy testified at
trial that on several occasions, she woke up in the middle of the
night to find Francis touching her vagina, both over and under
her clothes. Lacy estimated that the first time this happened was
when she was around 12 or 13, and she said that it happened “[a]t
least” 10 to 15 times. Lacy also said that, beginning when she was
14 or 15, Francis would sometimes touch her vagina with a
“vibrator” or a “dildo.”
¶15 	At one point, Francis used spray paint to write words on
the wall of the garage at Lacy’s home that used her nickname and
said, “[Nickname] is way more sweet than N.E. I love her more
than I should.”4
4. At trial, the State introduced a photograph that Lacy had taken
of this writing, and Lacy testified that this writing stayed on her
family’s garage wall for “[q]uite a few years.” Lacy acknowledged
that she wasn’t sure that Francis actually wrote it, though she
believed that Francis did. One of the detectives who investigated
the case testified that when he showed Francis a picture of the
spray-painted writing and asked him about it, Francis admitted
that it was his handwriting, though Francis claimed that he didn’t
remember 	writing 	it. 	On 	appeal, 	Francis 	notes 	that 	some
testimony at trial suggested that one of Francis’s ex-girlfriends
had a name that was similar to Lacy’s—from this, he suggests that
the nickname could have conceivably referred to his ex-girlfriend,
(continued…)

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¶16 	When Lacy was 16, she told Francis that he had to stop
touching her, and he did. About a year after he stopped, Lacy told
her friend Alice that Francis had sexually touched her.
Police Interview
¶17 	In June 2018, Alice told Stepmother about the abuse, and
Stepmother then called the police. In November 2019, Lacy
informed the police that Francis had abused her as well.
¶18 	During a subsequent interview with detectives, Francis
denied that he had sexually touched Alice or Lacy. But Francis
admitted that his relationships with both of them were “not
appropriate” and that he “shouldn’t have friends that young.” He
also admitted that he had been “around” Alice and Lacy “while
they were doing drugs” and “using alcohol,” though he denied
giving drugs to Alice.5 Francis also told detectives that Alice had
“come on to him.”
Charges and Trial
¶19 	In November 2019, Francis was charged with one count of
rape (Alice), three counts of forcible sexual abuse (Alice), one
not Lacy. But viewing the evidence in the light most favorable to
the verdict, we believe that the testimony from Lacy and the
detective supported the conclusions that Francis wrote this and
that it was about Lacy.
Finally, we see no explanation in the record, and the parties
have given us none in the briefs, for who “N.E.” may have been.
But for purposes of this case, what matters is the suggestion that
the nickname could—and, as explained, likely did—refer to Lacy.
5. Francis did not testify at trial, so the account of this interview
came from the detectives. Neither detective addressed whether
Francis made a similar denial about having given drugs to Lacy.

State v. Francis
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count of object rape (Lacy), and one count of sexual abuse of a
child (Lacy).6
¶20 	The case went to trial in April 2022. The State called Alice
and Lacy, who testified to the events detailed above. The State
also called the two detectives who had investigated the case, and
they recounted the statements Francis had made to them during
his interview.
¶21 	In addition to the above witnesses, the State called two
witnesses whose testimonies are central to issues raised on
appeal: an expert witness (Expert) and Stepmother.
Expert’s Testimony
¶22 	Before trial, the State provided notice that it intended to call
Expert to testify about “(1) the neurobiology of trauma/trauma
response, (2) common short-term behaviors of people who have
experienced trauma, and (3) counter-intuitive behavior of sexual
assault victims.” Francis objected under rules 702 and 403 of the
Utah Rules of Evidence.
¶23 	In October 2021, the district court held a pretrial hearing to
determine 	whether 	Expert’s 	proposed 	testimony 	would 	be
admitted. At that hearing, Expert testified about his qualifications.
He explained that he has a master’s degree in educational
psychology 	and 	a 	doctorate 	in 	“counselor 	education 	and
supervision.” He said that he currently worked as an assistant
professor, where he taught graduate-level courses on sexual
assault and trauma. Separate from his work as a professor, Expert
said that he had worked as a mental health counselor for the past
22 	years, 	during 	which 	time 	he 	commonly 	worked 	with
“survivors of sexual violence.” In addition, Expert said that he
had previously worked for about 10 years for a rape recovery
6. The State also charged Francis with one count of lewdness
relating to Alice, but the State dismissed that charge before trial.

State v. Francis
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center as a victim advocate, during which time he worked with
300 to 400 “victims or reporting victims” of “sexual violence.”
¶24 	Expert testified that he “stay[s] current on the literature
related to counselor education,” “clinical work,” and sexual
assault. Expert testified that he is a member of a national
association relating to the treatment of survivors of sexual abuse,
that he attends its national and local conferences, and that he
“read[s] the literature about sexual violence in general” that he
receives through that association. Expert said that he was also
currently serving as the chair of a local board of nurses who
provide “forensic exams to alleged victims of sexual violence,”
and that as part of that work, he receives and reviews “current
journal articles about sexual violence.” Expert testified that he has
“trained others about the neurobiology of trauma,” and he
explained that when he prepares these trainings, he relies on his
“clinical 	experience,” 	the 	“experience[s] 	of 	other 	healthcare
professionals,” and “a range of books and journal articles”
relating to these issues.
¶25 	During his direct examination by the State, Expert stated
that his opinions about the common responses and behaviors of
sexual assault victims were drawn from both his professional
experiences and his review of the relevant studies and literature.
He reiterated this during cross-examination. At one point, for
example, defense counsel asked, “[Y]ou’re basing your opinions
and your testimony on your experience as a—a therapist and a
counselor, as well as research that you read to stay up on the
literature; is that right?” Expert replied, “I would say there are
three types of experience[s] that I’ve had, and this is mostly a yes,
so my experience as a victim advocate for 10 years, my experience
as a clinician, and indeed, my experience as an instructor—as a
university 	instructor, 	in 	which 	I’ve—I’ve 	had 	to 	maintain
currency on the literature.” All in all, Expert testified that he was
“quite confident” that his opinions about issues relating to sexual
assault survivors were “well within the mainstream of common

State v. Francis
20220669-CA 	9 	2025 UT App 104
beliefs” and “commonly held understandings” by “experts in the
field.”
¶26 	After hearing Expert’s testimony and receiving written and
oral arguments from the parties, the district court ruled that
Expert was qualified and that his testimony was admissible under
rule 702. The court concluded that Expert was “qualified by
experience, his training and expertise,” and it further ruled that
Expert’s testimony seemed “to be based upon peer-reviewed
studies” and seemed “to be generally accepted by the relevant
expert . . . community.” The court also rejected Francis’s rule 403
challenge, concluding that Expert’s testimony was “certainly
relevant” and that it was not “unfairly. . . prejudicial,” given that
“the wide range of information” that Expert would be presenting
did not, in the court’s view, “focus on the idea of truthfulness.”
But the court cautioned the State that it would not allow Expert to
testify at trial about particular percentages associated with false
reporting, and the court said that if Expert offered such testimony
and the defense objected, it would sustain the objection.
¶27 	The State later called Expert as a witness at the trial. At the
outset of his testimony, Expert briefly set forth his qualifications,
including his years of experience working as a victim advocate at
a rape recovery center, his years treating survivors of sexual
violence, and his years of teaching. Expert then informed jurors
that he did not know any of the people involved in this case, that
he had not read any reports about it, and that he did not know the
facts of the case. Expert explained that he was “[a]bsolutely not”
there to “give an . . . opinion about the facts of this case.”
¶28 	The State then asked Expert to testify about the realities
behind several “rape myths.” Expert identified several such
“myths,” 	including 	that 	“rapes 	tend 	to 	be 	perpetrated 	by
strangers, that they tend to be violent, victims tend to resist, fight
back, they’re often injured in the process, victims are hysterical,
highly emotional after an assault, [and] it’s common for victims to

State v. Francis
20220669-CA 	10 	2025 UT App 104
report 	immediately 	after” 	a 	sexual 	assault. 	In 	response 	to
questioning from the State, Expert testified that “most of the
time[,] rapes are perpetrated by someone the victim knows.”
Expert also explained that while it is sometimes assumed that
rape victims react “hysterically,” there is actually “a broad range
of ways in which people respond to sexual violence.” Expert
testified that “[i]f there is one commonality that might describe all
or nearly all victims,” it’s that victims have a “tendency to blame
[themselves] for what happened.” Expert said that it’s “not
uncommon” for victims to delay reporting or even not report at
all and that “shame” and “guilt” are some of the “reason[s] that
not everyone reports.” And Expert also said that it’s “common”
for victims to “initially question whether something was a sexual
assault.” As one example of what might prompt a victim to blame
themselves, he pointed to situations in which “drugs or alcohol”
were “involved.”
¶29 	In the course of his direct examination by the State, the
following exchange occurred:
State: 	Do—do 	people 	who 	have 	been 	sexually
assaulted 	usually 	immediately 	get 	medical
attention?
Expert: No.
State: Some—I assume some do.
Expert: Some do. I mean, I have a—so of those that
report, about a third do so within a few days, a third
do so within weeks, and a third may not do so for a
much longer period of time.
State: Do some people never report to police?
Expert: Absolutely. That’s also not uncommon.

State v. Francis
20220669-CA 	11 	2025 UT App 104
¶30 	In various portions 	of 	his testimony, Expert clarified
whether he was drawing a particular opinion from his own
professional experiences or instead the relevant literature. At one
point in his testimony, for example, Expert observed that delayed
reporting was “the norm.” He then added, “I do want to hasten to
add that this is based on clinical experience, and not things that
I’ve read in the literature,” and he further specified that his
reference to “clinical experience” meant patients whom he had
counseled in his own practice. As another example, Expert
admitted during cross-examination that the research regarding
sexual violence can be limited because the data can only be
observational, 	rather 	than 	obtained 	through 	controlled
experiments. But he then insisted that “the reason” he had
a degree of confidence—a relatively high degree, is
that survivors have been studied for many years by
many different people in many different settings. By
that, 	I 	mean, 	universities, 	different 	settings,
different 	countries, 	Scandinavia, 	UK, 	Australia,
Israel, so on and so forth, and because there’s a
marked similarity in the findings, I think it lends—
lends confidence to what we believe we know about
sexual assault survivors.
Stepmother’s Testimony
¶31 	The State also called Stepmother as a witness at trial.
During her direct examination, she recounted the conversation
she had with Alice in June 2018 in which Alice told her about the
alleged abuse.
¶32 	During 	cross-examination, 	defense 	counsel 	asked
Stepmother a series of questions about Alice more generally.
Stepmother testified that Alice was a difficult teen, describing
Alice’s teenage years as “[t]raumatizing” with “[l]ots of drama.”
She also testified that, starting in junior high, Alice would drink,

State v. Francis
20220669-CA 	12 	2025 UT App 104
smoke, and do drugs. Stepmother stated that Alice “kept a lot of
secrets” as a teenager, specifically related to her drinking habits.
¶33 	During this questioning, the following exchange occurred:
Defense counsel: Okay. So based on you knowing
[Alice] for nearly her whole life, does she have a
reputation for being untruthful?
Stepmother: Yes.
Defense counsel: Okay.
Stepmother: Well, I—
Defense counsel: So just try to only respond if
there’s a question.
Stepmother: Sorry.
Defense counsel then asked Stepmother, “[H]ave you formed an
opinion about whether [Alice is] truthful or untruthful?” The
State objected, arguing that the question called for “improper
character evidence.”
¶34 	The court excused the jury, and the parties then addressed
the merits of the State’s objection. Defense counsel argued that the
question “falls squarely under [rule] 608.” This was an apparent
reference to rule 608(a) of the Utah Rules of Evidence, which states
that a “witness’s credibility may be attacked or supported by
testimony about the witness’s reputation for having a character
for truthfulness or untruthfulness, or by testimony in the form of
an opinion about that character.” In defense counsel’s view, this
rule 	allows 	both 	“reputation 	and 	opinion,” 	“reputation 	is
different than opinion,” and since the initial question had asked
Stepmother for reputation testimony, the follow-up question was
now appropriately asking for Stepmother’s opinion as well. In

State v. Francis
20220669-CA 	13 	2025 UT App 104
response, the prosecutor argued that the defense had already
established “very many things” about Alice’s “childhood” and
“character as a teenager.” The prosecutor then said, “In addition
to a concern about—under 608, I’ve also got a 403 concern.” The
prosecutor 	explained 	that 	he 	had 	previously 	spoken 	with
Stepmother, and he told the court that he was concerned that her
answer 	to 	the 	pending 	question 	might 	involve 	certain
“conspiracies” about her views of the case, so he thought that
allowing her to answer it would “run a . . . severe 403 risk.”
¶35 	After some additional argument, the court sustained the
objection, telling defense counsel, “I believe that you’ve asked the
question and you received the answer.”
Jury Instructions
¶36 	Before trial, defense counsel submitted proposed jury
instructions. These included both unanimity instructions and
several lesser included offense instructions relating to the various
charges.
¶37 	Unanimity 	instructions. 	The 	unanimity 	instructions
proposed by Francis related to counts two through five of the
information, which were the three counts of forcible sexual abuse
relating to Alice and the object rape count relating to Lacy. During
a midtrial recess, the parties discussed jury instructions with the
court. In this discussion, defense counsel brought up the proposed
unanimity instructions, and she asked the court to instruct jurors
that they must be unanimous about (1) which “specific act”
comprised which conviction, and (2) which particular “theory of
consent or nonconsent” related to those acts. After some back and
forth about the proposed unanimity instructions, the court asked
the parties to confer and come back with “the thing” they “really”
needed the court “to decide.”
¶38 	The parties then had an off-the-record discussion, and
when they returned, defense counsel informed the court, “I think

State v. Francis
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we’ve resolved a lot in terms of making some slight changes to the
elements so there’s fewer alternatives, which . . . I think, takes care
of most of the . . . special verdict form . . . and unanimity.” Defense
counsel also said, “I think the only issue left from my perspective
is unanimity as it relates to theories of consent.” Defense counsel
then argued that jurors should “have to be unanimous as to that
theory of consent” and “that they should identify it on a special
verdict form.” The State disagreed, arguing that while jurors do
“need to be unanimous that there was no consent,” “[n]othing in
. . . [the] caselaw suggest[s] that they have to be . . . unanimous”
about which theory of nonconsent applied to any particular
charge. The district court agreed with the State and concluded
that the unanimity rule “has some limitations, and it certainly isn’t
as broad as the defense is suggesting it should be.”
¶39 	Lesser included offenses relating to Alice. During this
same midtrial discussion, the parties also discussed the lesser
included offense instructions that Francis had proposed.
¶40 	Of note for this appeal, these included a proposed lesser
included offense for the three counts of forcible sexual abuse
relating to Alice. By way of background, these offenses required
the State to prove that Francis acted “without [Alice’s] consent.”
Utah 	Code 	§ 	76-5-404(2)(a)(i).7 A 	statute 	provides 	a 	list 	of
“circumstances” under which a sexual act done “is without
consent,” and one of them is that the defendant “occupied a
position of special trust in relation to the victim” who is younger
than 18. Id. § 76-5-406(2)(j). “Position of special trust,” in turn, is
statutorily defined in several ways, including “an uncle” and a
“cohabitant of a parent if the cohabitant is an adult.” Id. § 76-5-
404.1(1)(a)(iv)(F), (U). In advance of trial, the State indicated that
7. Many of the statutes cited in this portion of this opinion have
since been amended, but because there have been no material
changes to the statutory language in question, we cite the current
versions for convenience.

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one of the ways it intended to try proving that Alice did not
consent was that Francis “occupied a position of special trust”
over her, and the State further indicated that it would seek to
prove this by showing that he was either her “uncle” or a
“cohabitant” of one of her parents. The State also indicated that it
would argue other theories of nonconsent provided in the statute,
including that: Alice expressed “lack of consent through words or
conduct”; Alice was “unconscious, unaware that the act was
occurring, or was physically unable to resist”; Francis “overcame”
Alice through either “physical force or violence,” or “concealment
or the element of surprise”; and Francis was “more than three
years older than” Alice, Alice was between 14 and 18 years old,
and Francis “enticed or coerced” her “to submit or participate.”
See id. § 76-5-406(2)(a), (b), (c), (e), (k).
¶41 	As 	noted, 	defense 	counsel 	submitted 	proposed 	jury
instructions before trial. For the forcible sexual abuse charges
relating to Alice, defense counsel asked the court to give a lesser
included offense instruction that would allow the jury to conclude
that, rather than 	forcible sexual abuse, Francis had instead
committed an act of unlawful sexual activity with a 16- or 17-year-
old. Francis contended that such an instruction was warranted
because, unlike forcible sexual abuse, the offense of unlawful
sexual activity with a 16- or 17-year-old did not turn on a lack of
consent.
¶42 	During the midtrial discussion on jury instructions, the
parties argued about whether the court should give this lesser
included offense instruction. Francis argued that the instruction
was warranted because the jury could rationally believe that
Francis did not qualify as either Alice’s uncle or a cohabitant of
one of her parents. The prosecutor disagreed, arguing that there
was no “factual” basis for the instruction “because everyone
agrees that the defendant is her uncle,” and the prosecutor further
contended that Francis more broadly occupied a “position of
special 	trust” 	in 	the 	various 	other 	ways 	proposed 	by 	the

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prosecution. After the discussion, the court declined to give the
instruction, ruling that Francis “[w]as a cohabitant” because he
“lived with them on and off for periods of time,” as well as
because Alice “considered him to be a family member” (which, in
context, seems to have been the court’s acceptance of the State’s
theory that he qualified as her “uncle”).
¶43 	In the final jury instructions, the jury was instructed that
the State could prove that Francis occupied a position of special
trust, in part, if it showed that he was her “uncle” or “cohabitant
of a parent.” And the jury was also instructed on several other
ways the State could prove nonconsent, including that Alice
“expressed lack of consent through words or conduct”; that
Francis “knew [Alice] was unconscious, unaware that the act was
occurring, or was physically unable to resist”; and that Francis
“enticed 	or 	coerced 	[Alice] 	to 	submit 	or 	participate.” 	The
instructions further informed jurors that they were “not limited”
to those forms of nonconsent and that they could “apply the
common, ordinary meaning of consent” to the facts of the case.
¶44 	In its closing argument, the State asserted that Alice told
Francis “no,” and it further claimed that Francis “occupied a
position of special trust in relation to her” because “[s]he knew
him as her uncle.” Alternatively, the State suggested that Francis
was in “another position of special trust” because he was a
“cohabitant” of Alice’s parents. And the State further argued that
Francis “enticed or coerced” Alice to participate when he “begged
her” to have sex with him. Finally, the State reiterated that jurors
were “not limited” to the listed theories of nonconsent and could
“apply the common, ordinary meaning of consent.”
Verdict
¶45 	At the conclusion of trial, the jury convicted Francis of two
counts of forcible sexual abuse (both relating to Alice—one count
designated 	as 	“touch 	vagina 	over 	clothes,” 	and 	the 	other
designated as “touch vagina under clothes”) and one count of

State v. Francis
20220669-CA 	17 	2025 UT App 104
object rape (Lacy). The jury acquitted Francis of one count of
forcible sexual abuse (relating to Alice, designated as “first time,
touch vagina over clothes”), one count of rape (Alice), and one
count of sexual abuse of a child (Lacy). Francis now appeals his
convictions.
ISSUES AND STANDARDS OF REVIEW
¶46 	Francis first argues that the district court should not have
admitted Expert’s testimony. “We review the admission of expert
testimony 	under 	an 	abuse 	of 	discretion 	standard.” 	State 	v.
Bowdrey, 	2024 	UT 	App 	113, 	¶ 	15, 	555 	P.3d 	367 	(quotation
simplified), cert. denied, 561 P.3d 688 (Utah 2024).
¶47 	Second, Francis argues that the court erred in sustaining
the objection to defense counsel’s question about Stepmother’s
opinion of Alice’s character for truthfulness. A court’s decision to
exclude evidence is reviewed for an abuse of discretion. See State
v. Martin, 2017 UT 63, ¶¶ 18–19, 423 P.3d 1254.
¶48 	Third, Francis argues that the court erred when it declined
to provide the jury with a lesser included offense instruction for
the forcible sexual abuse counts relating to Alice. “A trial court’s
refusal to grant a lesser included offense instruction is a question
of law, which we review for correctness.” State v. Reece, 2015 UT
45, ¶ 16, 349 P.3d 712 (quotation simplified); accord State v. Florez,
2020 UT App 76, ¶ 15, 465 P.3d 307.
¶49 	Fourth, Francis argues that the court erred when it declined
to provide his requested unanimity instructions. As explained
below, we conclude that Francis has waived part of his challenge.
The other part of his challenge, however, turns on whether he was
legally entitled to such instructions (as opposed to whether the
facts 	would 	support 	them). 	We 	regard 	that 	challenge 	as
implicating a question of law that we review for correctness. See
State v. Powell, 2007 UT 9, ¶ 11, 154 P.3d 788 (“Because jury

State v. Francis
20220669-CA 	18 	2025 UT App 104
instructions are statements of the law, we review challenges to
jury 	instructions 	under 	a 	correctness 	standard.” 	(quotation
simplified)).
¶50 	Finally, Francis asks us to reverse under the cumulative
error doctrine. Under that doctrine, we “reverse only if the
cumulative effect of multiple errors undermines our confidence
that a fair trial was had.” State v. Suhail, 2023 UT App 15, ¶ 76, 525
P.3d 550 (quotation simplified).
ANALYSIS
I. Expert Testimony
¶51 	Over Francis’s objection, the district court allowed Expert
to testify about common “rape myths” and about common
responses of sexual assault victims. Francis now challenges this
testimony on two levels. First, he argues that Expert’s testimony
was not sufficiently reliable to be admissible under rule 702 of the
Utah Rules of Evidence. Second, he argues that Expert’s testimony
violated rule 403 of the Utah Rules of Evidence because it was
improperly 	based 	on 	“anecdotal 	statistical 	evidence.” 	We
disagree with both arguments.
A. 	Rule 702
¶52 	Under 	rule 	702(b) 	of 	the 	Utah 	Rules 	of 	Evidence,
“[s]cientific, technical, or other specialized knowledge may serve
as the basis for expert testimony only if there is a threshold
showing that the principles or methods that are underlying in the
testimony (1) are reliable, (2) are based upon sufficient facts or
data, and (3) have been reliably applied to the facts.” This
“threshold showing . . . is satisfied if the underlying principles or
methods, including the sufficiency of facts or data and the manner
of their application to the facts of the case, are generally accepted
by the relevant expert community.” Utah R. Evid. 702(c).

State v. Francis
20220669-CA 	19 	2025 UT App 104
¶53 	This rule requires the proponent “to make only a threshold
showing of reliability. This threshold is not so rigorous as to be
satisfied 	only 	by 	methodology 	or 	data 	that 	are 	free 	of
controversy.” California College Inc. v. UCN Inc., 2019 UT App 39,
¶ 22, 440 P.3d 825 (quotation simplified). When presented with
such a challenge, district courts “act as gatekeepers to screen out
unreliable expert testimony.” Id. ¶ 23 (quotation simplified). “This
function is limited to ensuring a minimal threshold of reliability
for the knowledge that serves as the basis of an expert’s opinion
and must not displace the province of the factfinder to weigh the
evidence.” State v. Wall, 2020 UT App 36, ¶ 71, 460 P.3d 1058
(quotation 	simplified). 	While 	“the 	line 	between 	assessing
reliability and weighing evidence can be elusive, appellate courts
must 	be 	mindful 	of 	this 	important 	distinction 	because 	the
factfinder bears the ultimate responsibility for evaluating the
accuracy, reliability, and weight of the testimony.” Id. (quotation
simplified).
¶54 	“District courts have wide discretion in determining the
admissibility of expert testimony.” State v. Aziz, 2018 UT App 14,
¶ 28, 414 P.3d 1014 (quotation simplified). When a court’s ruling
on such an issue is challenged on appeal, “we disturb the district
court’s decision to [admit or] exclude expert testimony only when
it exceeds the limits of reasonability.” State v. Sheehan, 2012 UT
App 62, ¶ 15, 273 P.3d 417 (quotation simplified); see also State v.
Maestas, 2002 UT 123, ¶ 19, 63 P.3d 621.
¶55 	Francis challenges the district court’s reliability ruling on
essentially three fronts. First, he argues that the State did not lay
a sufficient foundation for Expert’s opinions. Second, he argues
that Expert’s conclusions were not reliable enough on a general,
substantive level. And third, he argues that Expert’s testimony
was not sufficiently reliable because Expert drew at least some of
his conclusions from his own experiences as a clinician. We
address each argument in turn.

State v. Francis
20220669-CA 	20 	2025 UT App 104
¶56 	First, contrary to Francis’s assertions, the State did lay a
sufficient foundation for Expert’s conclusions, and it did so by
pointing to both his background (including both his professional
qualifications and his professional experience) as well as his
professional familiarity with the relevant studies and literature. In
terms of his background, Expert testified at the pretrial hearing
that he has a master’s degree in educational psychology and a
doctorate in “counselor education and supervision”; that he
worked as an assistant professor, where he taught graduate-level
courses on sexual assault and trauma; that he has worked as a
mental health counselor for over 20 years with an emphasis on
“survivors of sexual violence”; that he had previously worked for
about 10 years as a victim advocate for a rape recovery center,
where he worked with 300 to 400 “victims or reporting victims”
of “sexual violence”; that he served on a board of a nonprofit
organization that provides forensic exams to alleged victims of
sexual 	violence; 	and 	that 	he 	had 	received 	related 	trainings
regarding survivors of sexual violence.
¶57 	The State also laid a foundation by pointing to Expert’s
familiarity with the relevant literature. Expert testified that he
“stay[s] current on the literature related to counselor education,”
“clinical 	work,” 	and 	sexual 	assault. 	He 	explained 	that 	in
conjunction with his membership in an association relating to
sexual violence, he reads and reviews the relevant literature.
Expert further testified that he has “trained others about the
neurobiology of trauma,” and he said that when preparing such
trainings, he has relied on both his “clinical experience,” the
“experience[s] of other healthcare professionals,” and “a range of
books and journal articles” relating to such issues. Thus, from a
foundation perspective, Expert’s testimony satisfied rule 702’s
requirements.
¶58 	Second, 	Francis 	challenges 	the 	general 	reliability 	of
Expert’s testimony about the “commonalities” associated with
sexual assault victims—both in terms of their profiles and their

State v. Francis
20220669-CA 	21 	2025 UT App 104
responses to the sexual assaults. But as the State correctly points
out, 	Utah 	appellate 	courts 	have 	repeatedly 	affirmed 	the
admission of testimony similar to Expert’s. In State v. Boyer, for
example, we held that a district court did not abuse its discretion
when it concluded that an expert’s testimony about common
problems among child sexual abuse victims, including that they
“commonly delay disclosing the abuse,” was sufficiently reliable
to be admitted under rule 702. 2020 UT App 23, ¶¶ 41–42, 46, 460
P.3d 569. In State v. Martin, our supreme court likewise saw no
abuse of discretion when a district court held that an expert’s
testimony “regarding reasons why children will give differing
disclosures of alleged abuse” could be admitted under rule 702.
2017 UT 63, ¶¶ 28–32, 423 P.3d 1254. And in State v. Wright, we
suggested 	that 	testimony 	about 	“the 	general 	principle 	that
delayed reporting is common” would not be problematic under
rule 702. 2013 UT App 142, ¶¶ 35–36, 304 P.3d 887. From our
review of the record, Expert’s testimony was similar in kind to
testimony that has repeatedly survived challenges such as this
one.
¶59 	Third, Francis takes issue with the fact that at least some of
Expert’s 	testimony 	was 	based 	on 	his 	own 	professional
experiences. But the fact that an expert’s testimony is based, in
some measure, on his or her own experiences does not mean that
it cannot pass the rule 702 reliability inquiry. In Eskelson v. Davis
Hospital & Medical Center, our supreme court held that “[w]hat is
required 	for 	a 	threshold 	showing 	of 	reliability 	will 	vary
depending on the complexity of the particular case.” 2010 UT 59,
¶ 15, 242 P.3d 762. And the supreme court further held that the
expert testimony in question there could pass the rule 702
reliability threshold, even though it was solely based on the
expert’s personal experience in the relevant field. See id. We
reached 	a 	similar 	conclusion 	last 	year 	in 	State 	v. 	Bowdrey,
concluding 	that 	an 	officer 	could 	draw 	from 	his 	“extensive
experience” observing drug transactions to testify, as an expert,
about what was “common” in certain kinds of drug transactions.

State v. Francis
20220669-CA 	22 	2025 UT App 104
2024 UT App 113, ¶¶ 13, 27–28, 555 P.3d 367, cert. denied, 561 P.3d
688 (Utah 2024). And we also reached a similar conclusion in State
v. Shepherd, concluding that an expert could testify about “how
sound travels over water” based on his experience as an officer in
the Coast Guard and as a boating officer at Lake Powell. 2015 UT
App 208, ¶¶ 30, 33, 357 P.3d 598. With respect to rule 702’s
reliability inquiry, we explained that because the expert was
offering “experiential opinions,” he did not need to “identify a
particular methodology,” but that he could instead testify based
on his professional “experiences” and offer “opinions” that were
“within the scope of his experience.” Id. ¶¶ 34–35 (quotation
simplified).
¶60 	Indeed, in some cases, our courts have applied these
principles to the very kind of testimony at issue here—testimony
from an expert about commonalities in sexual assault victims. In
State v. Loose, for example, our supreme court held (albeit while
addressing a case decided under a previous version of the rule)
that “the trial court did not err” in allowing a social worker to
offer expert testimony that “he had seen some of the behaviors he
saw in [the victim] in other children who had been sexually
abused.” 2000 UT 11, ¶ 11, 994 P.2d 1237. In Boyer, we affirmed
the 	admission 	of 	testimony 	from 	a 	psychiatrist 	about 	“the
behaviors and symptoms consistent with child sexual abuse
victims,” where that testimony was based on the expert’s “thirty
years of experience working with child abuse victims.” 2020 UT
App 23, ¶ 42. And in Martin v. State, we recently affirmed the
admission 	of 	an 	“[e]xpert’s 	testimony 	that, 	based 	on 	her
experience,” the victim’s “symptoms were consistent with sexual
abuse.” 2024 UT App 89, ¶ 52, 552 P.3d 758, cert. denied, 561 P.3d
692 (Utah 2024).
¶61 	We recognize that, pursuant to rule 403, there are some
limitations on an expert’s ability to offer anecdotal statistical
evidence. We address Francis’s rule 403 challenge in Part I(B). But
for purposes of the rule 702 inquiry, we again emphasize that the

State v. Francis
20220669-CA 	23 	2025 UT App 104
question 	is 	whether 	the 	testimony 	has 	passed 	a 	“minimal
threshold of reliability” so as to allow “the factfinder to weigh the
evidence.” Wall, 2020 UT App 36, ¶ 71 (quotation simplified).
Here, when Expert testified about his opinions, he was doing so
well within the scope of the foundation the State had laid. To the
extent that Expert’s opinions were based on his professional
training and review of the literature, the State laid an appropriate
foundation, and Expert then offered opinions similar to those that
have commonly passed the threshold reliability standard. To the
extent that Expert’s opinions were based on his own professional
experience, the State likewise laid an appropriate foundation, and
our law does not prevent Expert from then testifying as an expert
based on his experience. While Francis now contends that some
of Expert’s opinions may have been flawed, such arguments
largely go to weight, not admissibility. More to the point, in light
of the deference given to district courts in this area, we are not
persuaded that we can or should reverse the district court’s
decision to reject Francis’s rule 702 challenge.
B. 	Rule 403
¶62 	Francis next argues that the district court should have
excluded Expert’s testimony under rule 403. In doing so, Francis
points to a line of cases that, in his view, prohibits witnesses from
using “anecdotal statistical evidence” to opine on a witness’s
credibility. In response, the State contends that the rule set forth
in the cases is not as broad as Francis suggests. Given the disputes
between the parties about the state of the law in this area, we think
it helpful to survey the key cases relied on by the parties in their
briefs. Having done so, we conclude that as the cases in this area
have evolved, certain throughlines have emerged. Based on those
throughlines, we see no abuse of discretion in the court’s decision
to admit Expert’s testimony.

State v. Francis
20220669-CA 	24 	2025 UT App 104
1. 	Past Cases
¶63 	The line of cases that Francis relies on starts with State v.
Rammel, 721 P.2d 498 (Utah 1986). The State there had relied on
testimony from an accomplice, even though the accomplice had
initially denied any involvement in the crime. Id. at 499. At trial, a
detective testified that it was not “unusual” for an accomplice to
initially lie about his involvement, and the detective also opined
that “no criminal suspect ever admitted ’right off the bat’ to
committing a crime.” Id. at 500. The detective further indicated
that his opinions were based on his “experience interviewing
several hundred criminal suspects.” Id. On appeal, our supreme
court concluded that this testimony was inadmissible for several
reasons, including that the “potential for prejudice substantially
outweighed its probative value.” Id. at 501. The court explained
that as “probability evidence,” the detective’s testimony had
“invite[d] the jury to focus upon a seemingly scientific, numerical
conclusion rather than to analyze the evidence before it and
decide where truth lies.” Id.
¶64 	Francis next points to State v. Iorg, 801 P.2d 938 (Utah Ct.
App. 1990). Iorg was a child sexual abuse case, and a deputy
testified at trial that “at least fifty percent” of the 30 abuse victims
she had worked with had waited more than a year to report the
abuse. Id. at 939. The prosecutor also questioned the deputy
specifically about the victim in that case, asking, “The fact that
[the victim] was age 14 and reported three incidents that occurred
to her when she was age eleven, is this unusual from your
experience as a deputy?” Id. at 940. The deputy responded, “No.
It is not.” Id. On appeal, we concluded that the deputy’s testimony
“had 	the 	same 	potential 	for 	prejudice 	as 	the 	testimony
condemned in Rammel” because, as in Rammel, the deputy “used
her ‘anecdotal statistical experience’ with late reporting in sexual
abuse cases to conclude that late reporting does not mean a victim
is not telling the truth.” Id. at 941.

State v. Francis
20220669-CA 	25 	2025 UT App 104
¶65 	Francis also points to two other child sexual abuse cases:
State v. Wright, 2013 UT App 142, 304 P.3d 887, and State v. Burnett,
2018 UT App 80, 427 P.3d 288. In Wright, a detective testified at
trial about delayed reporting, stating, “I would be willing to say
that at least a third of my cases . . . are victims where they have
either become 18 and are [o]lder or they’ve endured the abuse
living with the suspect without telling anyone for years.” 2013 UT
App 142, ¶ 5 (alterations in original). We determined that this
testimony 	“went 	a 	step 	beyond 	recognition 	of 	the 	general
principle 	that 	delayed 	reporting 	is 	common,” 	though 	we
ultimately held that it was not prejudicial to the defendant. Id.
¶¶ 36–37. In Burnett, the expert witness (who was a psychiatrist)
“told the jury, at least four times, that it is only in a ‘small
percentage’ of cases that children lie about sexual abuse.” 2018 UT
App 80, ¶¶ 7, 36. We concluded that, “even though [the expert]
stopped short of offering an opinion that [the victim] herself was
telling the truth, there is no question that, by presenting (and later,
in 	closing 	argument, 	emphasizing) 	this 	testimony, 	the
prosecution was clearly inviting the jury to draw inferences about
[the victim’s] credibility based upon [the expert’s] past experience
with other cases and studies.” Id. ¶ 36 (quotation simplified).
¶66 	In Francis’s view, Expert’s testimony about the various
ways 	that 	sexual 	assault 	victims 	do 	or 	do 	not 	react 	was
inadmissible under the principles set forth in these cases.
¶67 	The State disagrees, pointing to several cases in which we
held that some testimony of this sort had not crossed the line. For
example, in the aforementioned Burnett, we also held that certain
portions of the expert’s testimony were admissible. We held that
the 	expert 	could 	testify 	“that 	certain 	symptoms 	are 	more
commonly associated with sexual abuse victims than with the
population at large.” Id. ¶ 30. We also held that testimony that “a
victim’s symptoms are ‘consistent with’ sexual abuse does not
amount to inadmissible profiling evidence, because such evidence
does not prove directly the ultimate legal conclusion that a

State v. Francis
20220669-CA 	26 	2025 UT App 104
particular victim has been abused.” Id. ¶ 27 (quotation simplified).
And we further held that an expert may testify that some
behaviors 	are 	“more 	common 	among 	sexually 	abused 	and
traumatized children than among other children,” as well as offer
testimony that a particular behavior may be an “indicator” of
abuse. Id. ¶ 28.
¶68 	The State also points us to Boyer. There, we held that an
expert could testify “about ‘mental health problems, physical
problems, [and] behavioral problems’ that are common among
child sexual abuse victims.” 2020 UT App 23, ¶ 46 (alteration in
original). We explained that this testimony did not violate the
principles set forth in such cases as Rammel because the expert
“did not speak in terms of probabilities or offer direct opinions on
the truthfulness of the victim’s allegations,” and because the
expert “did not seek to connect his testimony about the general
behavioral characteristics of child victims of sexual abuse to the
victim’s specific conduct.” Id. ¶ 47 (quotation simplified). We
further stressed that the expert “did not address or opine, even
hypothetically, whether the evidence presented regarding the
victim and any physical or mental problems she may have
suffered was indicative of abuse,” but instead “confirmed that he
had never met the victim and was not aware of any facts
pertaining to her life or the allegations against” the defendant. Id.
¶69 	Finally, the State points us to State v. Christensen, 2016 UT
App 225, 387 P.3d 588. There, we held that an expert could testify
that the “[v]ictim’s symptoms were consistent with PTSD,”
particularly where the expert did not base that testimony on a
“psychological profile” and did not reach “the ultimate legal
conclusion that [the victim] was sexually assaulted.” Id. ¶ 28.
2. 	Governing Principles
¶70 	From these and other cases, a few principles have emerged.

State v. Francis
20220669-CA 	27 	2025 UT App 104
¶71 	First, an expert cannot claim that he or she can tell true
testimony from false testimony generally, nor can an expert say
that he or she can tell whether a particular witness or victim was
telling the truth. See Rammel, 721 P.2d at 501 (“Probabilities cannot
conclusively establish that a single event did or did not occur and
are particularly inappropriate when used to establish facts not
susceptible to quantitative analysis, such as whether a particular
individual is telling the truth at any given time.” (quotation
simplified)); State v. Carrera, 2022 UT App 100, ¶ 68, 517 P.3d 440
(“[W]e have classified as inadmissible any claims by experts that
they know how to discern lies from truth, or that they have made
an evidence-based determination that a witness was telling the
truth.”); Burnett, 2018 UT App 80, ¶ 25 (“While experts may use
their expertise to help the factfinder understand issues at trial,
experts cannot testify that a particular witness has or has not told
the truth.”).
¶72 	Second, testimony is more likely to be admissible if the
expert testifies as a blind witness. See Boyer, 2020 UT App 23, ¶ 47
(noting that the expert “had never met the victim and was not
aware of any facts pertaining to her life or the allegations” against
the defendant); Christensen, 2016 UT App 225, ¶ 28 (pointing out
that the expert “acknowledged that [the victim] was not one of his
patients and stated that his testimony was not a diagnosis”). One
of the benefits of doing so—and, particularly, when the jury is
informed that the expert does not know the facts of this case— is
that this helps remove the perception that the expert is opining on
the truthfulness of a particular witness or victim.
¶73 	Third, an expert can testify about “common” symptoms or
behaviors of sexual abuse victims. See State v. Martin, 2017 UT 63,
¶¶ 22, 32, 423 P.3d 1254 (affirming admission of expert testimony
regarding “common behaviors . . . of children who have been
abused”); 	Burnett, 	2018 	UT 	App 	80, 	¶ 	30 	(“[The 	expert’s]
testimony simply stated, in various ways, that certain symptoms
are more commonly associated with sexual abuse victims than

State v. Francis
20220669-CA 	28 	2025 UT App 104
with the population at large. This testimony was permissible.”);
State v. Bair, 2012 UT App 106, ¶ 47, 275 P.3d 1050 (permitting
testimony that “victims often delay reporting” and explaining
that Utah courts have recognized that “delayed discovery and
reporting are common in child sexual abuse cases” (quotation
simplified)). In this sense, testimony in this area is more likely to
be admissible if the expert speaks in generalities.
¶74 	Fourth, 	our 	courts 	have 	expressed 	hesitancy 	about
allowing an expert to testify in terms of hard numbers and
percentages. As recognized in the key cases, the problem with
such testimony is that when the expert’s opinions are expressed
in such concrete terms, this increases the likelihood that a jury
might conclude that the expert is suggesting that, as a scientific
matter, it is possible to determine whether a particular witness
was telling the truth. See Rammel, 721 P.2d at 500–01 (concluding
that the testimony that it was not “unusual” for an accomplice to
initially lie about his involvement was improper because it
“invite[d] the jury to focus upon a seemingly scientific, numerical
conclusion rather than to analyze the evidence before it and
decide where truth lies”); Burnett, 2018 UT App 80, ¶ 43 (“[N]ot
even properly qualified experts are permitted to offer statistical
evidence, anecdotal or otherwise, that informs the jury, even
indirectly, that a witness is more or less likely to be telling the
truth on a particular occasion.”).
¶75 	But that said, our courts have not categorically prohibited
an expert from ever relying on statistics, particularly when drawn
from studies that have an adequate foundation. See State v. Garcia-
Cardiel, 2024 UT App 174, ¶¶ 10, 22, 561 P.3d 692 (holding that an
expert’s testimony that “there is ‘some research that suggests that
60 to 80 percent of all abuse is . . . not reported until adulthood’”
was admissible, in part, because the “figure came not from his
experience interviewing victims but from research he was familiar
with as an expert in the field”), cert. denied, 564 P.3d 959 (Utah
2025). And again, we recognize that in the rule 403 context, the

State v. Francis
20220669-CA 	29 	2025 UT App 104
ultimate question is one of balancing, and district courts are given
discretion in how best to balance the competing interests in a
given case. See State v. Beverly, 2018 UT 60, ¶ 56, 435 P.3d 160. So
while it may be best for district courts to caution witnesses to
avoid relying too heavily (or even at all) on concrete statistics, we
see no support for an outright prohibition on an expert’s reference
to statistics if they are properly supported.
3. 	Application
¶76 	Against this backdrop, we decline to reverse the district
court’s decision to admit Expert’s testimony in this case.
¶77 	As an initial matter, we note that Expert never claimed that
he had any opinion about whether either of the two alleged
victims were or were not telling the truth. To the contrary, Expert
stressed to the jury that he was testifying as a blind witness—he
testified that he had not “reviewed any reports for this case,” that
he had not received any information about the alleged victims or
Francis, and that he did not even know what the charges were. He
also testified that, “as a generalist,” he was not trained to ascertain
the veracity of alleged victims or whether a crime had occurred,
and he further said that he would not attempt to do so in his
testimony.
¶78 	Francis nevertheless points to a number of particular
statements 	made 	by 	Expert 	that, 	in 	Francis’s 	view, 	were
problematic. But in our view, none of the identified statements
were so problematic that the district court could not exercise its
discretion and admit Expert’s testimony.
¶79 	For example, Francis complains about several instances in
which Expert testified about trends relating to sexual assault
victims. These included moments in which Expert testified about
what is “common” or the “norm,” as well as testimony about
what happens “most of the time.” But as discussed, experts can

State v. Francis
20220669-CA 	30 	2025 UT App 104
testify about commonalities, so this kind of testimony did not run
afoul of any prohibition relating to the rule in question.
¶80 	Francis also points to various statements made by Expert
that 	were 	drawn 	from 	Expert’s 	professional 	experiences
counseling patients. Francis claims that such statements should
have been deemed inadmissible because they were “anecdotal”
and 	“observational,” 	which, 	in 	Francis’s 	view, 	made 	them
unreliable. But as explained, an expert can testify based on the
expert’s 	professional 	experiences, 	so 	nothing 	categorically
precluded Expert from describing observations drawn from his
own professional practice. To the extent that Francis deemed such
testimony 	to 	be 	problematic, 	Francis 	could 	certainly 	have
challenged it through cross-examination or contrary testimony
from an expert of his own (had he chosen to call one).
¶81 	Moreover, Expert also drew many of his observations and
statistics from studies and literature. And again, Expert was
qualified to do so, and the State also laid appropriate foundation
for any testimony that was based on Expert’s review of outside
sources.
¶82 	Finally, Francis points out that in some instances, Expert
cited concrete statistics. But as noted, while Utah appellate
decisions have expressed hesitancy about allowing experts to rely
on concrete statistics, we don’t understand there to be a rule
categorically prohibiting every reference to any statistic. Here,
Francis has not persuaded us that Expert’s reference to concrete
statistics (whether drawn from his own experiences or his review
of the literature) was so pronounced that the jury must have
drawn an inference that Expert was implicitly suggesting that
these particular victims were telling the truth. And in light of that,
Francis also has not persuaded us that Expert’s reliance on
statistics was so pronounced that the district court abused its
discretion when, after conducting the rule 403 balancing, it
concluded that Expert could offer such testimony.

State v. Francis
20220669-CA 	31 	2025 UT App 104
¶83 	For all these reasons, we are not persuaded that the district
court abused its discretion when it rejected Francis’s challenge to
Expert’s testimony under rule 403.
II. Stepmother’s Testimony
¶84 	As 	discussed 	above, 	Stepmother 	testified 	on 	cross-
examination that Alice had a “reputation for being untruthful.”
When defense counsel then asked whether she personally had “an
opinion about” whether Alice is “truthful or untruthful,” the State
objected. As the parties argued the issue, the initial discussion
focused on whether this extra question was permitted under rule
608(a) of the Utah Rules of Evidence. In the course of that
discussion, 	the 	State 	additionally 	claimed 	that 	Stepmother’s
answer might implicate rule 403. The district court ultimately
sustained the objection, telling defense counsel, “I believe that
you’ve asked the question and you received the answer.” On
appeal, Francis contends that, based on the overall tenor of the
discussion and the specific wording used by the district court, its
decision to sustain the objection was based on rule 608(a), and
Francis then challenges this conclusion. In response, the State
contends that Francis was not entitled to obtain both opinion and
reputation testimony. We agree with Francis’s interpretation of
this rule.8
8. On appeal, the State suggests the court’s ruling was actually
based on rule 403. We disagree. In the exchange in question, the
prosecutor raised the possibility of a potential rule 403 problem
based 	on 	other 	testimony 	that 	the 	prosecutor 	was 	worried
Stepmother 	might 	give. 	But 	when 	the 	court 	sustained 	the
objection, the court didn’t point to that potential problem, much
less 	invoke 	rule 	403 	and 	conduct 	the 	balancing 	that’s
contemplated 	by 	that 	rule. 	Rather, 	the 	court 	sustained 	the
objection based on its conclusion that the defense had already
(continued…)

State v. Francis
20220669-CA 	32 	2025 UT App 104
¶85 	Under rule 608(a), a “witness’s credibility may be attacked
or supported by testimony about the witness’s reputation for
having a character for truthfulness or untruthfulness, or by
testimony in the form of an opinion about that character.”
(Emphasis added.) On its face, this rule states that a witness can
testify about another person’s reputation for truthfulness or give
an opinion about that person’s character for truthfulness. But
contrary to what seems to have been the view of the court, we see
nothing in this rule that limits a witness to just one or the other.
¶86 	On the plain language of this rule, the key word is the
conjunction “or.” When confronted with questions about the
meaning of the word “or,” a variety of courts have recognized that
while “or” can be used in an inclusive sense (A or B, or both), and
it can also be used in an exclusive sense (A or B, but not both), the
usual or most common meaning of the word is the inclusive one.
See, e.g., Rush v. Kijakazi, 65 F.4th 114, 120 (4th Cir. 2023); Fortin v.
Commissioner of Social Sec., 112 F.4th 411, 422 (6th Cir. 2024); Varga
v. Colvin, 794 F.3d 809, 815 (7th Cir. 2015); In re Estate of Dodge, 685
P.2d 260, 266 (Colo. App. 1984); Fortune Ins. Co. v. Department of
Ins., 664 So. 2d 312, 316 n.2 (Fla. Dist. Ct. App. 1995); Ohio
Patrolmen’s Benevolent Ass’n v. Cleveland, 244 N.E.3d 1092, 1096
(Ohio 2024). Commenters have recognized this too. See, e.g., Bryan
A. Garner, Garner’s Modern American Usage 45 (3d ed. 2009)
(observing that the inclusive sense “is the ordinary sense of the
word”); Maurice B. Kirk, Legal Drafting: The Ambiguity of “And”
and “Or,” 2 Tex. Tech L. Rev. 235, 243 (1971) (recognizing that “in
obtained the evidence it was entitled to obtain. While this ruling
could perhaps be viewed as a more generalized “asked and
answered” ruling, in light of the fact that the discussion had
focused on rule 608, it seems to us that the court’s ruling was
based on the conclusion that the defense could not obtain both
reputation and opinion testimony—and, thus, that because the
defense had already obtained the former, it could not also obtain
the latter.

State v. Francis
20220669-CA 	33 	2025 UT App 104
most cases ‘or’ is used in the inclusive rather than in the exclusive
sense” (quotation simplified)).
¶87 	In 	determining 	whether 	an 	inclusive 	or 	an 	exclusive
meaning was intended, certain linguistic cues may be helpful. As
recognized by the Delaware Supreme Court, for example, if a
statute or rule uses the word “either” in conjunction with the “or,”
this would set up an “‘either/or’ construct,” and that construct is
commonly understood to have an exclusive meaning; by contrast,
“in ordinary English,” the use of an “or” without the word
“either” “often suggests the inclusive sense of ‘or.’” Gonzalez v.
State, 207 A.3d 147, 156 (Del. 2019). In other cases, substantive
context may be helpful too. See, e.g., Rush, 65 F.4th at 120
(concluding that “[w]ithout compelling context to the contrary,”
the inclusive application of “or” applied); Fortin, 112 F.4th at 422–
23 (accepting the inclusive use of “or” given the context of the
statute as a whole); In re Estate of Dodge, 685 P.2d at 266
(concluding that “the history and legislative intent behind” the
statute suggested that the use of “or” should be given “its usual
inclusive construction”); Fortune Ins. Co., 664 So. 2d at 316 n.2
(“The word ‘or’ is used in the inclusive sense of ‘A or B, or both,’
unless the context affirmatively shows that it is used in the
exclusive sense of ‘A or B, but not both.’” (quotation simplified)).
¶88 	In our view, rule 608(a) is most naturally read in the
inclusive sense. Again, as recognized by cases and commenters,
the more ordinary sense of the word “or” is the inclusive one, so
that would be the natural starting place. And we also note that the
rule does not contain the word “either,” so it does not set up an
exclusive “either/or” construct. Moreover, the substance of the
rule suggests that it should be read inclusively. There’s clearly
some overlap between a person’s reputation for truthfulness and
a witness’s opinion about that person’s character for truthfulness.
But however small it may be, we still see at least some daylight
between these two things. A witness’s testimony that “George has
a reputation for being untruthful” could be at least somewhat

State v. Francis
20220669-CA 	34 	2025 UT App 104
different from the same witness saying, “In my opinion, George
is an untruthful person.” The former speaks to what others think;
the latter speaks to what this witness thinks. Given this, if the
drafters of the rule had wanted to state that a witness could offer
either reputation testimony or opinion testimony but not both, we
would expect them to have provided some indication of this. We
see no such indication.
¶89 	This conclusion is reinforced by the context of the exchange
in question here, which shows that defense counsel was indeed
asking Stepmother for different testimony. Although Stepmother
had testified that Alice had a “reputation for being untruthful,”
Stepmother had not given her own opinion about whether Alice
had a character for being truthful or untruthful. In theory, those
could have been different things. As a result, when the court ruled
that defense counsel had already “asked the question” and
“received the answer,” the court was mistaken. Defense counsel
had previously received an answer to a different question, but
counsel had not received an answer that directly addressed this
one. We therefore agree with Francis that the court should not
have sustained the objection.
¶90 	But even so, we are not persuaded that this error warrants
reversal. This court “will reverse an erroneous evidentiary ruling
only if, absent the error, there is a reasonable likelihood that there
would have been a more favorable result for the defendant. A
reasonable likelihood of a more favorable outcome exists when
the appellate court’s confidence in the verdict actually reached is
undermined.” State v. Kohl, 2000 UT 35, ¶ 17, 999 P.2d 7 (quotation
simplified). As part of this analysis, we do our best to “determine
from the record what evidence would have been before the jury
absent the trial court’s error.” Id. (quotation simplified).
¶91 	Here, Francis suggests that, given the other things that
Stepmother said about Alice, it’s likely that her response to the
question at issue would have been that she had a negative opinion

State v. Francis
20220669-CA 	35 	2025 UT App 104
about Alice’s character for truthfulness. From the record, we agree
with Francis that it’s reasonable to assume that this would have
been her answer. But for these very reasons, we also think that the
jury would have likely already inferred that Stepmother’s opinion
of Alice’s truthfulness wasn’t positive. After all, the jury heard
Stepmother’s testimony about the same things that Francis is now
pointing to—that Alice was a difficult teen, that Alice’s teenage
years were “[t]raumatizing” 	and characterized by “[l]ots of
drama,” that Alice had problems with drugs and alcohol, and that
Alice “kept a lot of secrets,” particularly relating to her drinking
habits. And again, just moments earlier, the jury had heard
Stepmother 	say 	that 	she 	thought 	Alice’s 	reputation 	for
truthfulness was poor. From all this, while we see at least some
conceptual difference between the reputation question and the
opinion question, we agree with the State that the jury likely
already knew what Stepmother’s opinion was about Alice’s
character for truthfulness. As a result, we agree with the State that
the impact of the extra testimony that Stepmother should have
been permitted to give would have been somewhat marginal.
¶92 	Our conclusion that this was not prejudicial error is
buttressed by other aspects of this case as well. Of particular note,
Alice testified at length and was cross-examined by defense
counsel. As a result, the perceived problems with her credibility
were already highlighted for the jury, and the jury had the
opportunity to evaluate her credibility in light of those arguments
firsthand. We’re not persuaded that this extra piece of information
from Stepmother would have been so much more meaningful
from what was already presented to the jury that it would have
likely tipped the scales.
¶93 	Moreover, Alice’s claims were corroborated on at least
some level by Francis’s statements to the detectives. As noted,
Francis admitted in his interview that his relationship with Alice
was “not appropriate” and that he “shouldn’t have [had] friends
that young.” And Francis also admitted that he was “around” her

State v. Francis
20220669-CA 	36 	2025 UT App 104
“while they were doing drugs” and “using alcohol,” which was a
key part of her testimony about the circumstances surrounding
the sexual abuse.
¶94 	Finally, the charges relating to Alice were tried with the
charges relating to Lacy, and Francis has not argued on appeal
that the cases should have been severed. But the accounts from
Alice and Lacy were similar in many respects. In each instance,
Francis was a close family friend, the teenage girl regarded him as
an “uncle,” Francis stayed with the family for an extended period
of time, Francis befriended the girl in what he agrees was an
inappropriate way, Francis used drugs and alcohol with the girl,
and Francis then allegedly touched her in sexual ways. While
Stepmother could in theory have testified about her opinion of
Alice’s truthfulness, she was not asked a similar question about
Lacy, so the missing testimony at issue would not have impacted
Lacy’s credibility in any way.9
9. Before trial, the State provided notice pursuant to rule 404(b) of
the Utah Rules of Evidence that it intended to use the testimonies
of Alice and Lacy together to prove Francis’s “intent, knowledge,
or recklessness about lack of consent.” Having been so notified,
Francis did not file an objection to this proposed use of their
testimonies. As a result, during closing arguments, the State
argued that the accounts were similar enough that they could each
help prove the veracity of the other. By contrast, defense counsel
argued during closing argument that the accounts were not
sufficiently similar and were instead inconsistent.
On appeal, Francis has not argued that, under rule 404(b)
or any other propensity related rule, the court should not have
allowed the State to use these two accounts in this fashion.
Against this backdrop, we think it appropriate to assume that the
jury did indeed use the accounts together in the manner proposed
by the State below.

State v. Francis
20220669-CA 	37 	2025 UT App 104
¶95 	In short, we agree that Stepmother should have been
allowed 	to 	offer 	her 	opinion 	about 	Alice’s 	character 	for
truthfulness, but in light of the whole record, we’re not persuaded
that this extra testimony would have been significant enough to
create a reasonable probability of a different result. We therefore
reject this claim for lack of prejudice.
III. Lesser Included Offense
¶96 	As indicated, for the forcible sexual abuse charges relating
to Alice, the State was required to prove that Francis acted
without Alice’s consent. Utah Code § 76-5-404(2)(a)(i). The State
sought to prove this in a number of ways, including that Francis
“occupied a position of special trust,” and it sought to prove that
he occupied a position of special trust in several ways, including
that he was her “uncle” or “a cohabitant” of one of her parents.
See id. § 76-5-406(2)(j); id. § 76-5-404.1(1)(a)(v)(F), (U). In advance
of trial, Francis asserted that the jury could conclude that Francis
did not qualify as either Alice’s uncle or a cohabitant of one of her
parents, so he requested a lesser included offense instruction to
allow the jury to consider whether, rather than forcible sexual
abuse, Francis had instead committed unlawful sexual activity
with a 16- or 17-year-old, a crime that did not require proof of
nonconsent. The court declined to give the proposed instruction.
¶97 	On appeal, Francis argues that this was error. In response,
the State argues that Francis was not entitled to the proposed
instruction 	because 	the 	“evidence 	presented 	at 	trial
unambiguously showed Francis occupied a position of special
trust in relation to Alice, whether as her uncle, a cohabitant of her
parents, or in some other capacity that allowed him ‘to exercise
undue 	influence 	over’ 	Alice.” 	(Quoting 	id. 	§ 	76-5-
404.1(1)(a)(v)(W).) We agree with Francis.
¶98 	Under 	Utah 	Code 	section 	76-1-402(4), 	a 	defendant 	is
entitled to a lesser included offense instruction when “there is a
rational basis for a verdict acquitting the defendant of the offense

State v. Francis
20220669-CA 	38 	2025 UT App 104
charged and convicting him of the included offense.” In making
this determination, a district court must “view[] the evidence in
the 	light 	most 	favorable 	to 	the 	defendant 	requesting 	the
instruction.” State v. Powell, 2007 UT 9, ¶ 27, 154 P.3d 788; see also
State v. Reece, 2015 UT 45, ¶ 22, 349 P.3d 712; State v. Nelson, 2021
UT App 26, ¶ 21, 484 P.3d 409.
¶99 	The arguments below and again on appeal have focused on
the “uncle” and “cohabitant” options, so we’ll focus there too. In
our view, a jury could rationally believe that although Francis had
a close relationship with Alice and her family, he did not qualify
as her “uncle.” The word “uncle” is not defined in the Utah Code,
nor was the jury given an agreed-upon definition of the word in
the instructions. In its most ordinary usage, the word is commonly
understood to mean the brother of a parent.10 But on the evidence
presented at trial, a jury could conclude that Francis did not
qualify. After all, he was at most the brother of Alice’s stepmother
(as opposed to being the brother of Alice’s biological mother), and
there was also evidence suggesting that he was actually the half
brother of her stepmother. If the evidence were viewed in the light
most favorable to the defense, a jury could conclude that Francis
was really Alice’s step-half uncle. While we in no way mean to
downplay the importance of such relationships in some people’s
lives, a jury could rationally think that a step-half uncle is not the
same thing as an uncle.
¶100 	In response, the State points out that Alice testified that she
considered Francis to be her “uncle.” And we do recognize that,
as a term of endearment, it’s perhaps not uncommon for terms
like “uncle” and “aunt” to be used for people who may not
biologically 	qualify. 	But 	still, 	in 	the 	applicable 	statute, 	the
legislature didn’t include a “person who is like an uncle.” The
10. 	See 	Uncle, 	Merriam-Webster, 	https://www.merriam-
webster.com/dictionary/uncle 	[https://perma.cc/59J7-AGMD]
(defining “uncle” as “the brother of one’s father or mother”).

State v. Francis
20220669-CA 	39 	2025 UT App 104
legislature 	simply 	said 	“uncle.” 	Utah 	Code 	§ 	76-5-
404.1(1)(a)(v)(U). 	Without 	more 	guidance 	from 	either 	the
legislature or the court, the jury here could have chosen to view
the term “uncle” in its most literal sense. And if it did, the jury
could conclude that Francis did not qualify.
¶101 	We also believe that a jury could rationally think that
Francis was not a “cohabitant” of one of Alice’s parents. Like
“uncle,” the term “cohabitant of a parent” is not further defined
for purposes of section 76-5-404.1. But in other contexts, the term
“cohabitant” is often understood to refer to something akin to a
romantic partner. For example, Merriam-Webster’s Dictionary
links the noun “cohabitant” to the verb “cohabit,” which the
dictionary then defines as meaning “to live together as or as if a
married couple.”11 This word often carries similar meanings in
legal 	contexts. 	Black’s 	Law 	Dictionary 	defines 	the 	term
“cohabitation” as meaning “[t]he fact, state, condition, or practice
of living together, esp. as partners in life, usu. with the suggestion
of sexual relations.” Cohabitation, Black’s Law Dictionary (12th ed.
2024). In a family law context, courts conduct a cohabitation
analysis to determine whether “an unmarried couple has entered
into 	a 	relationship 	akin 	to 	that 	generally 	existing 	between
husband and wife.” Scott v. Scott, 2020 UT 54, ¶ 35, 472 P.3d 897
(quotation 	simplified). 	And 	in 	the 	Utah 	Code, 	the 	term
“cohabitant” is sometimes defined using the Cohabitant Abuse
Procedures Act. See, e.g., Utah Code § 77-36-1(1); see also State v.
Ellis, 2014 UT App 185, ¶ 21, 336 P.3d 26. By incorporation, that
statute contains multiple definitions for the term “cohabitant,”
many of which are expressly romantic or sexual in nature,
including a person who “is or was a spouse of the other party,”
“is or was living as if a spouse of the other party,” “has or had one
or more children in common with the other party,” “is the
11. 	See 	Cohabit, 	Merriam-Webster, 	https://www.merriam-
webster.com/dictionary/cohabitant 	[https://perma.cc/LVL3-
KD6U].

State v. Francis
20220669-CA 	40 	2025 UT App 104
biological parent of the other party’s unborn minor child,” or “is
or was in a consensual sexual relationship with the other party.”
Utah Code § 78B-7-102(7)(a)(i), (ii), (iv), (v), (vii).
¶102 	The State points out, however, that the term “cohabitant”
at least sometimes can refer to a relationship that is not romantic
or sexual. The statute just cited, for example, includes two
definitions that are not romantic or sexual, including a person
who “is related by blood or marriage to the other party as the
individual’s parent, grandparent, sibling, or any other individual
related to the individual by consanguinity or affinity to the second
degree,” as well as a person who “resides or has resided in the
same residence as the other party.” Id. § 78B-7-102(7)(a)(iii), (vi).
And in this case, we also take the State’s point that Francis had
close ties to Alice’s family and lived with them for about two
years. 	So 	if 	the 	jury 	understood 	“cohabitant” 	in 	terms 	of
residence, we agree with the State that the jury could think that
Francis did qualify as a cohabitant.
¶103 	But again, the question is whether, viewing the evidence in
the light most favorable to Francis, there was a rational basis in
the evidence to see things the other way. Without any further
guidance from the legislature or the district court about what the
term “cohabitant of a parent” meant in this context, we believe
that the jury could have rationally concluded that the term meant
something romantic or sexual. And if it understood the term this
way, 	it 	could 	conclude 	that 	Francis 	did 	not 	qualify. 	We
accordingly conclude that the district court erred in not giving the
requested instruction.12
12. It’s true that the State proposed other theories of nonconsent
to the jury. In its appellate brief, the State suggests that Francis
also was not entitled to the proposed instruction because the
evidence of the other theories of nonconsent was strong. But the
(continued…)

State v. Francis
20220669-CA 	41 	2025 UT App 104
¶104 	As with the issue relating to Stepmother’s testimony,
however, Francis must show that he was prejudiced. And an
“error is prejudicial if there is a reasonable likelihood that the
error affected the outcome of the proceedings.” State v. Norton,
2021 UT 02, ¶ 81, 481 P.3d 445 (quotation simplified); see also Reece,
2015 UT 45, ¶ 40 (concluding that an error relating to a lesser
included 	offense 	would 	not 	be 	“harmful 	unless 	there 	is 	a
reasonable likelihood that the jury would have acquitted” the
defendant of the greater offense and “convicted him” of the lesser
included offense); State v. Payne, 964 P.2d 327, 334 (Utah Ct. App.
1998) (concluding that the question is “whether, even though
there was a rational basis in the evidence for giving the requested
[lesser included offense] instruction, the evidence of the greater
offense was so strong that there is no substantial likelihood of a
different outcome had the requested instruction been given”).
Here, we’re not persuaded that there is a reasonable probability
that, if the jury had been given the proposed lesser included
offense instruction, it would have acquitted Francis of forcible
sexual abuse and convicted on the lesser offense. This is so for
several reasons.
¶105 	First, although the jury could have concluded that Francis
did not qualify as Alice’s uncle, it could also have concluded that
he did. After all, the statutory and instructional silence here cuts
both ways. And again, he was the brother (or perhaps the half-
brother) of Stepmother. From this, a jury could think that he did
qualify. So too with the question of whether he was a cohabitant
State’s briefing on this is somewhat perfunctory. And while we
do believe that these alternative rationales appropriately factor
into the prejudice analysis, we don’t agree that, viewing the
evidence in the light most favorable to Francis’s theory, the
evidence relating to these other theories was so compelling that
the jury simply could not find otherwise. As a result, even with
these alternative theories, we conclude that the court should have
given the proposed instruction.

State v. Francis
20220669-CA 	42 	2025 UT App 104
of one of her parents. Without any definition foreclosing this
possibility, we think there’s at least some chance that the jury
would have concluded that the term included Francis, given that
he lived with the family for a period of about two years.
¶106 	Second, as discussed, the element at issue was whether
Alice consented to the sexual touching. Separate from the position
of special trust questions, the jury was given several other options
by which it could conclude that Alice did not consent. These
included that Francis “knew [Alice] was unconscious, unaware
that the act was occurring, or was physically unable to resist,” as
well as that Francis “enticed or coerced [Alice] to submit or
participate.”
¶107 	The jury believed Alice’s testimony that some of the
touching had occurred—it had to, otherwise there would have
been no basis for its decision to convict him on two counts of
forcible 	sexual 	abuse. 	In 	addition 	to 	describing 	the 	sexual
touching, Alice testified that Francis would give her pills and
drugs; that he would often touch her after she had taken drugs
and was “high as a kite,” at which point Francis would “kind of
just go for it” without “necessarily ask[ing] or anything”; and that
“[a] lot of the time,” Francis would start touching her while she
“was asleep” and that she would “would wake up to” Francis
touching her. All of this testimony would have established Alice’s
nonconsent in ways that were independent of the “uncle” or
“cohabitant of a parent” theories at issue. And yet we’ve been
given no real basis from the record to conclude that it’s reasonably
likely that the jury would have believed Alice’s testimony that the
touching occurred, but that it would not have believed her
testimony 	that 	this 	touching 	often 	occurred 	while 	she 	was
impaired. Put differently, it seems from the record that these
aspects of her testimony largely rose and fell together.
¶108 	As a result, we’re not persuaded that it’s reasonably likely
that, if the jury had been given this instruction, it would have

State v. Francis
20220669-CA 	43 	2025 UT App 104
acquitted Francis of the charged offenses and convicted him of the
lesser included offenses instead. We therefore reject this argument
for lack of prejudice.
IV. Unanimity Instructions
¶109 	Francis argues that the district court erred by not giving
instructions that would have required the jury to unanimously
agree (1) “which specific act formed the basis for the counts that
resulted 	in 	conviction” 	and 	(2) 	the 	particular 	“theory 	of
nonconsent.” We disagree.
¶110 	First, we conclude that Francis waived any claim relating
to unanimity regarding the particular acts. As discussed above,
Francis 	did 	initially 	request 	such 	an 	instruction. 	But 	after
discussing the issue with the prosecutor during a recess, defense
counsel informed the court, “I think we’ve resolved a lot in terms
of making some slight changes to the elements so there’s fewer
alternatives, which . . . I think, takes care of most of the . . . special
verdict form . . . and unanimity.” She then said, “I think the only
issue left from my perspective is unanimity as it relates to theories
of consent.” (Emphasis added.)
¶111 	Under the invited error doctrine, courts will not analyze a
claim “when counsel, either by statement or act, affirmatively
represented” to the district court that “he or she had no objection
to the proceedings.” State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d
1171 	(quotation 	simplified). 	This 	doctrine 	“arises 	from 	the
principle 	that 	a 	party 	cannot 	take 	advantage 	of 	an 	error
committed at trial when that party led the trial court into
committing the error.” State v. Williams, 2020 UT App 67, ¶ 33, 462
P.3d 832 (quotation simplified). Here, defense counsel’s statement
to the court was a clear representation that she was no longer
requesting an instruction that would ask jurors to be unanimous
as to a particular act. In this sense, she seems to have withdrawn

State v. Francis
20220669-CA 	44 	2025 UT App 104
the earlier request for such an instruction. We therefore conclude
that Francis waived any such claim.13
¶112 	Second, we agree with the State that Francis was not
entitled to an instruction requiring unanimity on theories of
nonconsent.14 In State v. Hummel, our supreme court held that “the
constitutional 	requirement 	of 	unanimity 	is 	limited 	to 	those
matters identified as elements of a crime in the substantive
criminal law.” 2017 UT 19, ¶ 65, 393 P.3d 314 (emphasis in
original). The court held that “[m]ere examples of ways of
fulfilling such elements,” such as “theories (or methods or modes)
of a crime,” “are not a necessary part of a verdict, and thus fall
beyond the requirement of unanimity.” Id. ¶¶ 3, 65.
¶113 	The situation before the court in Hummel illustrates this
distinction. Hummel involved an appeal from a theft conviction,
id. ¶ 1, and the statute required proof that the defendant had
“obtained or exercised unauthorized control over the property of
another 	with 	a 	purpose 	to 	deprive 	him 	thereof,” 	id. 	¶ 	15
(quotation simplified). The statute then listed various “ways that
one may exercise unauthorized control over the property of
another.” Id. ¶ 19. On appeal, the supreme court held that the
defendant was not entitled to an instruction requiring jurors to be
unanimous on which “way[]” the defendant had committed the
theft offense. Id. ¶ 65. The court noted that the various options
13. On appeal, Francis does not argue that defense counsel
provided ineffective assistance by withdrawing this portion of the
request for a unanimity instruction.
14. As noted above, Francis proposed this instruction relating to
counts two through five of the information—namely, the three
counts of forcible sexual abuse relating to Alice and the one count
of object rape relating to Lacy. As also noted, the jury acquitted
Francis 	of 	one 	of 	the 	forcible sexual 	abuse counts, 	so 	this
argument applies only to the counts for which he was convicted.

State v. Francis
20220669-CA 	45 	2025 UT App 104
listed in the statute did not “purport[] to define a separate crime,”
but instead tied into the “single crime of theft,” and the court
regarded these as being “exemplary means of satisfying” the
element in question (which, again, was having “obtained or
exercised unauthorized control over the property of another with
a purpose to deprive him thereof”). Id. ¶¶ 60–61 (quotation
simplified). 	The 	court 	accordingly 	held 	that 	the 	unanimity
requirement applies to “those matters identified as elements of a
crime,” but it does not apply to each “‘theory’ of the crime
charged” 	or 	“[m]ere 	examples 	of 	ways 	of 	fulfilling 	such
elements.” Id. ¶¶ 64–65 (emphasis in original).
¶114 	Here, the element in question was whether Francis touched
Alice “without [her] consent.” Utah Code § 76-5-404(2)(a)(i).
Another statute then said that a qualifying sexual touching would
be “without consent” under a list of “circumstances.” Id. § 76-5-
406(2). But a “circumstance” is not the same thing as an “element,”
and we regard that list as being similar in kind to the list involved
in Hummel, which simply set forth examples of how the element
could be satisfied. As in Hummel, we accordingly conclude that
the statutory list at issue doesn’t purport to “define a separate
crime.” 2017 UT 19, ¶ 60.
¶115 	Therefore, while the jury was required to be unanimous in
its conclusion that Francis sexually touched Alice without her
consent, it was not required to be unanimous as to why it believed
that Alice did not consent. Francis therefore was not entitled to a
unanimity instruction on this element, and the court did not err in
denying the request.
V. Cumulative Error
¶116 	Finally, Francis asks us to apply the cumulative error
doctrine. 	A 	“court 	must 	make 	three 	determinations 	before
reversing a verdict or sentence under the cumulative error
doctrine: it must determine that (1) an error occurred, (2) the error,
standing alone, has a conceivable potential for harm, and (3) the

State v. Francis
20220669-CA 	46 	2025 UT App 104
cumulative effect of all the potentially harmful errors undermines
its confidence in the outcome.” State v. Suhail, 2023 UT App 15,
¶ 153, 525 P.3d 550 (quotation simplified).
¶117 	As indicated, we conclude that the district court committed
two errors, both of which related to the charges involving Alice:
(1) not allowing Stepmother to give her opinion about Alice’s
character for truthfulness, and (2) not giving a lesser included
offense regarding the forcible sexual abuse charges relating to
Alice. But even if we aggregate the effect of these errors, we still
see no reasonable likelihood of a different result. This is so largely
for the reasons given above, namely:
• 	Alice testified and was cross-examined, and the jury had
the opportunity to assess her credibility firsthand.
• 	The charges relating to Alice and Lacy were tried together,
Francis 	has 	not 	argued 	that 	the 	court 	should 	have
separated the cases, and Francis has not challenged the
State’s ability to argue to the jury that their accounts were
mutually reinforcing.
• 	In his interviews with detectives, Francis acknowledged
that his relationships with Alice and Lacy were “not
appropriate,” and he further admitted that he “shouldn’t
have [had] friends that young.” Francis also admitted that
he was around both of them while they were using drugs
and alcohol. Moreover, when asked about the writing on
the wall in Lacy’s garage, Francis admitted that it was his
handwriting, and he did not deny that it was about Lacy,
thus giving credence to Lacy’s claim that Francis had an
inappropriate and romantic interest in her.
¶118 	This collective evidence was the crux of the State’s case,
and the two errors we’ve identified were of somewhat limited
importance in the face of all of it. True, Stepmother should have
been allowed to offer her opinion of Alice’s truthfulness; but as

State v. Francis
20220669-CA 	47 	2025 UT App 104
discussed, the jury had already heard evidence from which it
likely would have assumed that Stepmother had a negative view
of Alice’s truthfulness anyway, so we’re not persuaded that the
extra answer would have been that significant. And while we’ve
concluded that Francis was entitled to a lesser included offense
instruction relating to some of the charges involving Alice, we’re
not persuaded that the jury would actually have agreed that
Francis was not Alice’s uncle or a cohabitant of her parent. This
proposed instruction related to just one of the six theories of
nonconsent, and the jury seems to have accepted the evidence of
nonconsent relating to the some of the various theories.
¶119 	In these circumstances, our confidence in this verdict is not
undermined, even by the cumulative effect of these two alleged
errors. We therefore decline to reverse for cumulative error.
CONCLUSION
¶120 	We conclude that the court did not abuse its discretion
when it admitted Expert’s testimony, nor did it err in denying the
request for the two proposed unanimity instructions. Although
the court did err in limiting Stepmother’s testimony and in not
giving the jury an instruction on a lesser included offense, we
conclude that Francis was not prejudiced by these errors, either
individually or cumulatively.
¶121 	Francis’s convictions are therefore affirmed.