State v. Klenz

2018 UT App 201
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
R OGER GLEN K LENZ ,
Appellant.
Opinion
No. 20160742-CA
Filed October 25, 2018
First District Court, Brigham City Department
The Honorable Brandon J. Maynard
No. 151100151
Gregory W. Stevens, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES K ATE A. TOOMEY and R YAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 	Defendant Roger Glen Klenz appeals his convictions on
five counts of aggravated sexual abuse of a child, all first degree
felonies, and five counts of forcible sexual abuse, all second
degree felonies. He argues that the trial court erred by denying
his motion for a bill of particulars, admitting evidence of his
alleged other bad acts, admitting into evidence a detective’s
statements having bearing on the credibility issues in the case,
and denying his motion to arrest judgment. We affirm.

State v. Klenz
20160742-CA 	2 	2018 UT App 201
BACKGROUND1
The Charges
¶2 	In 2015, when Defendant’s daughter (Victim) was fifteen
years 	old, 	she 	told 	her 	mother 	and 	a 	family 	friend 	that
Defendant had sexually abused her for around eight years.
Victim and Defendant had gotten into a fight earlier that day,
and Victim was crying. Victim initially refused to disclose why
she was upset, explaining that Defendant told her that she
“couldn’t tell.” Eventually, the family friend asked whether
Defendant had molested her, and Victim said yes. When asked
whether it was “more than that,” Victim answered, “[Y]eah, it
was a lot more than that.”
¶3 	Victim 	reported 	these 	allegations 	to 	authorities, 	and
Defendant 	was 	arrested 	and 	interviewed 	by 	a 	detective
(Detective). The State charged Defendant with thirty counts of
sexual offenses. Specifically, he was charged with five counts of
aggravated sexual abuse of a child for conduct occurring over a
seven-year period ranging from “on or about November 03, 2006
through November 02, 2013,” when Victim was under the age of
fourteen. He was charged with five counts of rape of a child and
five counts of sodomy upon a child. The Amended Information
alleged that these crimes occurred over the two-year period from
“on or about November 03, 2011 through November 02, 2013,”
also when Victim was under the age of fourteen. Additionally,
Defendant was charged with five counts of rape, five counts of
forcible sodomy, and five counts of forcible sexual abuse. The
Amended Information alleged that these offenses occurred over
about a two-year period from “on or about November 03, 2013
through June 6, 2015,” after Victim turned fourteen.
1. “On appeal from a criminal conviction, we recite the facts
from the record in the light most favorable to the jury’s verdict.”
State v. Pham, 2015 UT App 233, ¶ 2, 359 P.3d 1284.

State v. Klenz
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Defendant’s Motion for a Bill of Particulars
¶4 	Defendant filed a Motion for a Bill of Particulars and
Demand for a More Definite Statement of the Date, Time and
Place of the Alleged Offenses. Noting that he was charged with
thirty counts of sexual offenses against Victim and asking for
“more than a broad statement that the alleged crimes took place
within spans of two years or seven years,” Defendant asserted
that he was entitled to “sufficiently precise information of the
date, time and place of an alleged offense” in order to prepare a
defense and to uphold his due process rights.
¶5 	The trial court denied Defendant’s motion, concluding
that Defendant’s constitutional right to notice had “already been
satisfied by the information.” It observed that a “‘core defense’”
of “‘I didn’t do it’” is not time-sensitive and concluded that
Victim was “not required to give precise dates of each alleged
offense.” (Quoting State v. Taylor, 2005 UT 40, ¶ 18, 116 P.3d 360.)
Thus, because Defendant was “able to prepare a defense and
[was] 	not in danger of multiple prosecutions for the same
crime,” a bill of particulars was unnecessary.
The Motion in Limine About Other Bad Acts Evidence
¶6 	Before trial, the State moved for the admission of evidence
of 	four 	alleged 	incidents 	of 	other 	bad 	acts 	that 	occurred
outside Box Elder County.2 First, when Victim was fourteen
years 	old 	and 	staying 	with 	extended 	family 	following
her grandmother’s death, Defendant allegedly had sex with
Victim after finding her crying on a bed and suggesting she
was upset about a boy and he knew “what [would] make [her]
feel 	better” 	(the 	funeral 	incident). 	Next, 	on 	two 	trips 	to
softball tournaments when Victim was thirteen or fourteen,
Defendant 	allegedly 	had 	sex 	with 	Victim 	in 	their 	hotel
2. Defendant was charged only for acts that occurred within Box
Elder County.

State v. Klenz
20160742-CA 	4 	2018 UT App 201
rooms 	(the 	softball 	trip 	incidents). 	Finally, 	when 	Victim
was approximately thirteen years old, Defendant allegedly had
sex with Victim in a van parked in a store parking lot (the
parking lot incident). According to the State, the other bad acts
evidence was admissible under rule 404(c) of the Utah Rules of
Evidence as prior instances of sexual abuse and under rule
404(b) as it was offered for the proper noncharacter purposes of
establishing 	Defendant’s 	intent 	and 	of 	showing 	“Victim’s
credibility, 	. 	. 	. 	Defendant’s 	method 	of 	using 	[Victim’s]
relationship 	with 	boys to 	justify 	the 	abuse, 	. 	. 	. 	[and 	that
Defendant] used opportunities when he was alone with [Victim]
to abuse her.”
¶7 	The trial court granted the State’s motion to admit the
other bad acts evidence, concluding that it was admissible under
rule 404(c). That rule allows, “[i]n a criminal case in which a
defendant is accused of child molestation,” the admission of
“evidence that the defendant committed any other acts of child
molestation to prove a propensity to commit the crime charged.”
Utah R. Evid. 404(c)(1). The court stated that “this enumerated
purpose from rule 404 applies to the unique events the Victim
can testify to in order to establish the context and credibility of
her allegations.” The court similarly concluded that the evidence
was relevant under rules 401 and 402.
¶8 	The court then conducted a balancing analysis under rule
403. 	On 	the 	one 	hand, 	it 	concluded 	that 	the 	evidence 	of
uncharged instances of sexual abuse in this case had probative
value because it allowed Victim “to provide testimony about the
scope and context of the abuse.” On the other hand, because the
jury would be determining “what, if any, events occurred based
on [its] determination of credibility of the witness,” there would
be a limited danger of unfair prejudice given that Victim would
be describing only “additional incidents of abuse.” (Citing State
v. Cox, 2007 UT App 317, ¶¶ 33–34, 169 P.3d 806.) Accordingly,
the court found that “the balancing test of rule 403 allow[ed] for
the admissibility of the evidence.”

State v. Klenz
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The Motion in Limine and the Interview Video
¶9 	On the eve of trial, Defendant moved to exclude certain
portions of the video recording of his interview by Detective on
the 	day 	of 	his 	arrest. 	He 	sought 	to 	exclude 	portions 	that
“constitute inadmissible opinion testimony by the interrogating
Detective 	about 	the 	strength 	of 	the 	evidence, 	[Detective’s]
comparison of this case to other cases, and [Detective’s] belief in
the credibility of the alleged victim.” Defendant asserted that
allowing the jury to view these portions would “usurp [its]
function” and that the probative value of the evidence was
substantially outweighed by the dangers of unfair prejudice or
confusing or misleading the jury.
¶10 	The court heard oral arguments on the issue during trial.3
Defendant clarified that he objected only to the portions of the
video during which Detective opined about the strength of the
evidence and Victim’s credibility. The State opposed redacting
the 	video. 	The 	prosecutor 	explained 	that 	the 	video 	was
necessary and “very compelling evidence” because it showed
that Defendant never asked questions about the specific details
of the alleged sexual abuse that Detective referenced during the
interview and because it showed Defendant’s “bizarre demeanor
and 	behavior,” 	which 	included 	laughing 	and 	joking. 	The
prosecutor argued that if the defense asserted that Defendant
was wrongfully accused, then the State intended to rely on the
video to argue that Defendant’s reactions during the interview
were “very unusual” and “not the kind of behavior that [one]
would expect to see from somebody who believes he’s been
wrongfully accused.” The prosecutor also argued that redacting
the 	video 	would 	suggest 	to 	the 	jury 	that 	the 	State 	had
“something 	to 	hide” 	and 	asserted 	that 	all 	of 	Detective’s
statements were necessary to “help put things in context.”
3. The trial court heard arguments and ruled on Defendant’s
motion before Detective testified.

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¶11 	The trial court denied Defendant’s objection to portions of
the video. It distinguished the cases Defendant cited in support
of his position because they related specifically to instances of
officers 	accusing 	suspects 	of 	lying 	and 	therefore 	were 	not
“persuasive” with respect to “whether or not the video should
come 	in.” 	The 	court 	determined 	that 	because 	“none 	of
[Detective’s statements in the video] talk about any type of lying
or deceit” and because the statements were merely “techniques”
Detective used to talk to a suspect, it would not exclude any
portions of the video.
The Trial
¶12 	The case proceeded to a jury trial in 2016. Victim testified
that Defendant started abusing her when she was seven years
old and they lived in another state, and that it continued when
they moved to Utah the next year. When asked to describe the
first instance of abuse in Utah, Victim recalled that late at night
while her mother was at work, Defendant came into her room
and explained that he was “going to snuggle and stuff” with her.
While her younger sister slept on the top bunk of the bed,
Defendant touched Victim’s breasts with his hands, and Victim
let it happen because she thought it was normal. The touching
then “escalated” to Defendant touching Victim’s buttocks and
vagina over her clothes.
¶13 	Victim testified that this kind of touching was “common”
but that Defendant also touched her under her clothes. When
asked to describe one such incident, Victim said that Defendant
told her he “wanted to snuggle,” but then he “put his hand
under [her] shirt and started taking it off and touching [her]
boobs.” He also “took off [her] pants and [her] underwear” and
started “rubbing” her vagina.
¶14 	Victim estimated that when she was younger, Defendant
would come into her room and touch her “five to seven times a
week,” stating that all the instances of touching were “kinda all
mashed 	[together] 	in 	[her] 	head.” 	Defendant’s 	touching

State v. Klenz
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decreased in frequency as Victim grew older, yet it continued on
a regular basis. Victim admitted that she did not disclose all of
Defendant’s 	abuse 	when 	she 	was 	first 	interviewed 	by
authorities, explaining that she was “scared” and “not really
comfortable” talking to the interviewer. But she testified that the
touching occurred regularly both when she was younger than
fourteen and after she turned fourteen.4 She also testified that it
occurred in her bedroom, in Defendant’s bedroom, and on the
couch in the basement living room.
¶15 	According 	to 	Victim, 	her 	older 	brother 	(Brother)
“sometimes” walked in while Defendant was abusing her. In
particular, once Brother walked out of his bedroom, prompting
Defendant to roll off the basement living room couch and throw
a blanket over her (the couch incident). Though she did not
recall whether Defendant was dressed, she remembered that she
was not, and when Brother saw them, she covered up and “acted
like [she] was asleep.” Brother then “darted into the bathroom.”
¶16 	Victim testified about the other bad acts evidence that the
trial 	court 	had 	deemed 	admissible, 	including 	the 	funeral
incident, the softball trip incidents, and the parking lot incident.5
The court instructed the jury that it could consider the other bad
acts evidence for the limited purposes of “demonstrating an
ongoing behavior pattern of the defendant” and/or “to show the
4. For the sexual touching against Victim while she was under
the 	age 	of 	fourteen, 	the 	State 	charged 	Defendant 	with
aggravated 	sexual 	abuse 	of 	a 	child. 	See 	Utah 	Code 	Ann.
§ 76-5-404.1 (LexisNexis 2012). For the sexual touching after
Victim 	turned 	fourteen, 	the 	State 	charged 	Defendant 	with
forcible sexual abuse. See id. § 76-5-404.
5. Because the jury acquitted Defendant of the rape and sodomy
charges, we do not include the details of Victim’s testimony
regarding those allegations.

State v. Klenz
20160742-CA 	8 	2018 UT App 201
defendant’s intent to arouse or gratify the sexual desire of any
person.”6
¶17 	Brother also testified. He was eighteen years old at the
time of trial and lived in the downstairs bedroom near the
basement living room. Brother testified that in 2015, when he
finished 	working 	the 	5 	p.m. 	to 	1 	a.m. 	shift 	at 	a 	fast-food
restaurant, he would return to see Victim and Defendant on the
couch in the basement living room. Sometimes Defendant and
Victim would be on the couch watching a movie and it was
“totally normal.” But “[s]ome nights,” Victim and Defendant
would “both pop up” and “quickly sit[] back up” from lying on
the couch, and as Brother approached, Victim would “adjust[]
her bra straps” and clothes and Defendant would ask Brother
about work in a “very quick and panicked tone.” Brother said
that he encountered Defendant and Victim on the couch like this
more than ten times. On some occasions, Brother could not tell
what 	Defendant 	and 	Victim 	were 	wearing; 	at 	other 	times,
Brother observed that Victim was wearing clothes although he
testified that “most of the time” she was not.
¶18 	Brother also described the couch incident. See supra ¶ 15.
According to Brother, one night when he emerged from his
bedroom to go to the bathroom, he saw Victim on the couch,
and, “as [he] walked out and opened the door, [Defendant]
rolled off the couch” and either Victim or Defendant quickly
covered Victim with a blanket. Though he could not see what
Defendant was wearing, Brother saw that Victim was nearly
naked and “exposed,” with her underwear down to her knees
and her shirt up to her shoulder, before he “quickly ducked into
the 	bathroom.” 	When 	Brother 	came 	out 	of 	the 	bathroom,
Defendant was not there, but Victim had on sweatpants and a
6. The court instructed the jury about the other bad acts evidence
at the time the evidence was admitted and in the final jury
instructions.

State v. Klenz
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t-shirt and appeared asleep. He testified that this incident left “a
very vivid picture” in his mind.
¶19 	Long before the couch incident, Brother saw Victim and
Defendant leave Defendant’s upstairs bedroom while everyone
else was downstairs. According to Brother, as she left, Victim
fixed her bra strap, putting it back on her shoulder, and adjusted
her shirt. This episode “seemed very irregular” and “weird” to
Brother, and he testified that this was the first “red flag” that
“something 	was 	wrong.” 	Brother 	suspected 	sexual 	abuse,
estimating that his concerns arose around 2013. But because he
was afraid of losing his dad and “didn’t want to believe it,”
Brother did not tell anyone.
¶20 	Brother detailed other unusual behavior. For example, he
explained that Defendant gave people massages but the ones he
gave to Victim, unlike those he gave to Victim’s mother, were
more “in depth,” longer, and involved the use of oils. Brother
also described a time when he heard “hushed whispers and face
slaps” while in his bedroom. When he walked out of his room,
he saw Victim crying, and when he asked why, Victim said, “I
cannot 	live 	here 	anymore 	. 	. 	. 	I 	just 	want 	to 	move 	out.”
Defendant then came downstairs, and the conversation ended.
¶21 	Brother testified that, after Victim reported her allegations
against Defendant, Victim told Brother about where and how
often the abuse happened, but “[t]here wasn’t a lot said” and she
“never went into extreme detail.” And Brother did not know the
“basic outline” and time frame of what happened until Child
Protective 	Services 	interviewed 	him. 	On 	cross-examination,
Brother acknowledged he never saw Defendant actually touch
Victim in an inappropriate way.
¶22 	Detective testified for the State. During his testimony, he
stated that during the interview Defendant did not ask him for
the details of the abuse allegations. He explained that “[p]eople
that have not committed something are 	very adamant and
strong with their denials.” When the prosecution asked whether

State v. Klenz
20160742-CA 	10 	2018 UT App 201
anything 	about 	Defendant’s 	demeanor 	caught 	his 	attention,
Detective said, “Quite a few things.” When asked to specify,
Detective stated, “The lack of defiance, joviality when I would
ask a question and then the excited utterances of oh geez, wow.”
Regarding lack of defiance, Detective explained, “If somebody is
innocent, then they’re always in my face, they’re saying, there’s
no way this happened, you’re lying, I can’t believe you did this,
this isn’t true, this is false, things like that.” Regarding excited
utterances, Detective stated that “as [he] would explain the
charges, following that, it would be, a: oh geez, or wow, things
like 	that. 	Not 	common.” 	Defendant 	did 	not 	object 	to 	this
testimony bearing on his demeanor.
¶23 	The 	State 	played 	the 	video 	of 	Defendant’s 	interview
during its case-in-chief. When it was played, the court instructed
the jury, “The statements of Detective . . . on the video are not
evidence or an expert opinion concerning evidence. Instead, they
are and should be considered only as [Detective’s] investigative
technique.”7
¶24 	Testifying on his own behalf, Defendant denied touching
Victim in a sexual way. He stated he loved Victim and would
never hurt her.
¶25 	In closing argument, the State argued that the case turned
largely 	on 	corroboration 	and 	credibility. 	It 	referred 	to 	the
instances 	of 	Victim’s 	testimony 	that 	were 	corroborated 	by
Brother, 	and 	the 	instances 	of 	Victim’s 	testimony 	that 	were
corroborated by Defendant. The State also asserted that, during
his interview, Defendant did not comment or behave like “a
person who’s being wrongfully accused.” Defendant countered
in his closing argument that the video of the interview showed
that “he made no admissions despite . . . [Detective’s] efforts
over and over again to try and trick him into believing that
7. The final jury instructions included the same admonition.

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[Detective] 	had 	something 	to 	actually 	support 	[Victim’s]
allegations when in fact [he] didn’t.”
The Verdict
¶26 	The jury returned a mixed verdict. It acquitted Defendant
of all counts of rape of a child, rape, sodomy upon a child, and
sodomy. But it found him guilty on all five counts of aggravated
sexual abuse of a child and all five counts of forcible sexual
abuse.
The Motion to Arrest Judgment
¶27 	Defendant moved to arrest judgment on the basis of the
inherent 	improbability 	and 	apparent 	falsity 	of 	Victim’s
testimony. In particular, he asserted that Victim’s testimony was
inconsistent about the frequency and number of times she was
abused and that there were no specifics about the time or extent
of the abuse. Defendant further contended that the evidence was
insufficient to sustain the verdict given Victim’s testimony and
the lack of physical evidence.
¶28 	The trial court denied the motion to arrest judgment. It
concluded that Victim’s testimony was not the only evidence of
what occurred. For example, Brother testified that he suspected
sexual abuse, and Brother and Victim each testified about the
couch 	incident. 	The 	court 	also 	concluded 	that 	“Victim’s
testimony as to the frequency, location, and extent of the abuse
was not drastically changing, but was consistent in that the
abuse occurred.” Indeed, “Victim’s multiple disclosures were
not inconsistent, but merely cumulative, and simply added more
details in the later statements.” (Quotation simplified.) Further,
the 	court 	concluded 	that 	although 	there 	was 	no 	physical
evidence of abuse, “there [was] testimony that speaks to why
that is and additional corroborating evidence of [Defendant’s]
guilt.” Accordingly, the court determined it was precluded from
applying the “inherent[ly] improbable testimony theory as there
[was] additional evidence supporting the jury’s verdict” and

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could 	not 	grant 	Defendant 	his 	requested 	relief. 	Defendant
appeals.
ISSUES AND STANDARDS OF REVIEW
¶29 	Defendant raises three main issues on appeal. First, he
contends that the trial court committed reversible error when it
denied him a bill of particulars. We generally review a trial
court’s denial of a request for a bill of particulars for an abuse of
discretion. State v. Bernards, 2007 UT App 238, ¶ 13, 166 P.3d 626.
But 	we 	review 	the 	trial 	court’s 	decision 	regarding 	the
constitutional 	adequacy 	of 	the 	notice 	given 	to 	a 	criminal
defendant for correctness. See State v. Maese, 2010 UT App 106,
¶ 6, 236 P.3d 155; see also State v. Wilcox, 808 P.2d 1028, 1031
(Utah 1991) (explaining that the reviewing court “accord[s] a
trial 	court’s 	conclusions 	of 	law 	no 	particular 	deference,
reviewing them for correctness,” and that “the question of the
adequacy of the notice given [to a] defendant is one of law”).
¶30 	Second, Defendant contends that the trial court erred in
admitting 	(1) 	evidence 	of 	his 	alleged 	other 	bad 	acts 	and
(2) Detective’s statements “vouching for the alleged victim’s
credibility, 	opining 	about 	the 	weight 	of 	the 	evidence, 	and
assessing the innocence of the defendant.” “We afford district
courts a great deal of discretion in determining whether to admit
or exclude evidence and will not overturn an evidentiary ruling
absent an abuse of discretion.” State v. Cuttler, 2015 UT 95, ¶ 12,
367 P.3d 981 (quotation simplified). A trial court abuses its
discretion “if its decision to admit or exclude evidence is beyond
the limits of reasonability.” Id. (quotation simplified). Where
Defendant 	failed 	to 	preserve 	certain 	evidentiary 	issues 	for
appeal, however, see infra ¶ 60 n.12, he seeks our review under
the plain error exception to the preservation rule, see State v.
Bond, 2015 UT 88, ¶ 46, 361 P.3d 104 (listing the plain error
doctrine as an exception to the preservation rule). Under the
plain error standard, the appellant must show the existence of an

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obvious and harmful error. State v. Cox, 2007 UT App 317, ¶ 10,
169 P.3d 806.
¶31 	Last, Defendant contends that the trial court erred in
denying his motion to arrest judgment. A trial court “may arrest
a jury verdict when the evidence, viewed in the light most
favorable to the verdict, is so inconclusive or so inherently
improbable as to an element of the crime that reasonable minds
must have entertained a reasonable doubt as to that element.”
State v. Black, 2015 UT App 30, ¶ 12, 344 P.3d 644 (quotation
simplified). We review the trial court’s ruling on a motion to
arrest judgment for correctness. Id.
ANALYSIS
I. Bill of Particulars
¶32 	Defendant first contends that the trial court “erred in
denying [his] motion for a bill of particulars.” He asserts that “in
light 	of 	the 	extreme 	breadth 	of 	the 	period 	charged 	in 	the
Amended Information at issue here and the fact that [Victim]
was not a young child at the time of trial,” the notice he received
of the time and place of the alleged offenses was deficient and
“violated his right to due process” under the Utah Constitution.
He further asserts that the trial court’s error prejudiced his
“ability to present any particularized defense.” He contends “it
was impossible for [him] to assert a defense as to any of the
charges that did not place him in the time and place of the
alleged 	offenses”—suggesting 	that 	he 	was 	prevented 	from
raising an alibi defense—and that, with one exception, “the best
that [he] was able to do was to assert a general defense that he
did not ever” abuse Victim.
¶33 	The 	State 	counters 	that 	Defendant 	“received
constitutionally adequate notice of the date and time of the
offenses” because it was “the best information the State had as to
when the crimes took place.” The State asserts that the Amended

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Information 	“reflected 	the 	preliminary 	hearing 	testimony 	of
[Victim], who could only say that the abuse occurred on almost a
weekly basis, often multiple times a week . . . until she was 15
years 	old.” 	It 	further 	argues 	that 	“because 	the 	abuse 	was
pervasive and extended over a long period of time, the State was
not constitutionally required to provide more precise times” and
“the lack of specific dates did not . . . impair [Defendant’s] ability
to prepare a defense.”
¶34 	The Utah Constitution guarantees that “[n]o person shall
be deprived of life, liberty or property, without due process of
law,” Utah Const. art. I, § 7, and that criminal defendants have
the right “to demand the nature and cause of the accusation
against [them]” and to be provided a “copy thereof,” id. art. I,
§ 12. 	These 	guarantees 	ensure 	that 	the 	accused 	is 	“given
sufficient information so that he or she can know the particulars
of the alleged wrongful conduct and can adequately prepare his
or her defense.”8 State v. Bell, 770 P.2d 100, 103 (Utah 1988)
(quotation 	simplified). 	Thus, 	“the 	constitutional 	question 	is
whether a criminal defendant is sufficiently apprised of the
particulars of the charge to be able to adequately prepare his
defense.” 	State 	v. 	Wilcox, 	808 	P.2d 	1028, 	1031 	(Utah 	1991)
(quotation simplified).9
8. The Utah Constitution also “requires the prosecution to state
the charge with sufficient specificity to protect the defendant
from multiple prosecutions for the same crime.” State v. Wilcox,
808 P.2d 1028, 1032 (Utah 1991). Defendant does not assert that
the lack of specificity in the Amended Information exposed him
to multiple prosecutions for the same crime.
9. “When an indictment or information . . . does not provide the
notice guaranteed by article I, section 12, the accused may
request a bill of particulars . . . .” State v. Bell, 770 P.2d 100, 104
(Utah 1988). See generally Utah Code Ann. § 77-14-1 (LexisNexis
2017) (“The prosecuting attorney, on timely written demand of
(continued…)

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¶35 	To resolve this question, courts weigh “the completeness
of the notice and its adequacy for the defendant’s purposes
against the background of the information legitimately available
to the prosecuting authority.” State v. Taylor, 2005 UT 40, ¶ 9, 116
P.3d 360 (quotation simplified). The State is required to “give the
defendant the best information it has as to when the alleged
crime[s] took place,” and “whatever information the prosecutor
has that may be useful in helping to fix the date, time, and place,
of the alleged offenses.” State v. Robbins, 709 P.2d 771, 773 (Utah
1985); see also State v. Gulbransen, 2005 UT 7, ¶ 27, 106 P.3d 734
(same), abrogated on other grounds by Met v. State, 2016 UT 51, 388
P.3d 447. Ultimately, “as long as a defendant is sufficiently
apprised of the State’s evidence upon which the charge is based
so 	that 	the 	defendant 	can 	prepare 	to 	meet 	that 	case, 	the
constitutional requirement is fulfilled.” Taylor, 2005 UT 40, ¶ 9
(quotation simplified); see also State v. Hattrich, 2013 UT App 177,
¶ 40, 317 P.3d 433 (“Due process requires that an accused be
given sufficiently precise notification of the date of the alleged
(…continued)
the defendant, shall within 10 days, or such other time as the
court may allow, specify in writing as particularly as is known to
him the place, date and time of the commission of the offense
charged.”); Utah R. Crim. P. 4(e) (“When facts not set out in an
information are required to inform a defendant of the nature and
cause of the offense charged, so as to enable the defendant to
prepare a defense, the defendant may file a written motion for a
bill of particulars. . . . The request for and contents of a bill of
particulars shall be limited to a statement of factual information
needed to set forth the essential elements of the particular
offense charged.”). “Entitlement to a bill of particulars as a
matter of right occurs only when the information or indictment
is constitutionally deficient by reason of its failure to inform of
the nature and cause of the offense charged.” State v. Allen, 839
P.2d 291, 298 (Utah 1992).

State v. Klenz
20160742-CA 	16 	2018 UT App 201
crime 	so 	that 	he 	can 	prepare 	his 	defense.” 	(quotation
simplified)).
¶36 	Although a defendant is entitled to sufficient detail so that
he can mount a defense, Utah law “does not . . . expressly
mandate identification of the exact date when an alleged offense
occurred.” Taylor, 2005 UT 40, ¶ 9; see also Utah R. Crim. P.
4(c)(1) (“The information need not include facts such as time . . .
unless necessary to charge the offense.”). Moreover, “the mere
assertion of an alibi defense does not impose on the prosecution
the additional burden of proving the precise date of the act. The
burden on the prosecution remains the same, i.e., to establish all
elements of the crime beyond a reasonable doubt.” Gulbransen,
2005 UT 7, ¶ 31 (quotation simplified). Defendant acknowledges
that “[t]ime is not an express element of any of the offenses with
which [he] was charged, except to the extent that the [State] was
required to prove that [Victim] was a child at the time of
commission of certain of the offenses.” He thus concedes that the
State was not required to identify the exact dates when the
alleged offenses occurred.
¶37 	The Utah Supreme Court has recognized that “in child
sexual abuse prosecutions, identifying the specific date, time, or
place of the offense is often difficult owing to the inability of
young victims to provide this information.” Taylor, 2005 UT 40,
¶ 12. Additionally, “[t]he problem of young children who are
unable to specify a date on which abuse occurred or a location
where it occurred is exacerbated by situations in which the abuse
occurred on many occasions over a long period of time.” Wilcox,
808 P.2d at 1033. Hence, the supreme court has been “less
demanding of exact times and dates when young children are
involved.” Taylor, 2005 UT 40, ¶ 12; see also Wilcox, 808 P.2d at
1033 (acknowledging that Utah law is “less vigorous in requiring
specificity 	as 	to 	time 	and 	place 	when 	young 	children 	are
involved than would usually be the case where an adult is
involved”). Thus, “so long as the elements of the crimes are
covered by the factual allegations and the defendant is fully
apprised of the State’s information regarding the time, place, and

State v. Klenz
20160742-CA 	17 	2018 UT App 201
date of the crimes, any lack of factual specificity goes not to
the constitutional adequacy of the notice, but to the credibility of
the State’s case.” Wilcox, 808 P.2d at 1033. Otherwise, “[a]n
abuser could escape prosecution merely by claiming that the
child’s inability to remember the exact dates and places of the
abuse impaired the abuser’s ability to prepare an alibi defense.”
Id.
¶38 	Here, 	Defendant 	had 	sufficient 	notice 	of 	the 	alleged
crimes and dates to allow him to adequately prepare his defense.
The Amended Information notified Defendant that he was being
charged for five counts of aggravated sexual abuse of a child
committed against Victim over a seven-year period ranging from
“on or about November 03, 2006 through November 02, 2013,”
and for five counts of forcible sexual abuse that occurred over
the two-year period from “on or about November 03, 2013
through June 6, 2015.” The Amended Information thus informed
Defendant of the years, names, and elements of the offenses, and
we agree with the State that it reflected Victim’s preliminary
hearing testimony, in which she could not provide specific dates
but testified the abuse occurred almost weekly from the time she
was 	eight 	years 	old 	until 	she 	was 	fifteen. 	In 	this 	regard,
Defendant has not shown that the State failed to provide him
with the best information legitimately available to it.10 Cf. State v.
Otterson, 2010 UT App 388, ¶ 4, 246 P.3d 168 (noting that the
defendant failed to “provide any support for his claim that more
detailed information could have been ascertained”); State v.
Bernards, 2007 UT App 238, ¶ 18, 166 P.3d 626 (affirming the trial
court’s denial of a request for a bill of particulars in part because
the defendant had “not demonstrated that the State withheld or
attempted to withhold any information it had regarding the
dates of the charged offenses”).
10. 	Shortly 	after 	the 	State 	filed 	the 	Amended 	Information,
Defendant 	had 	access 	to 	the 	transcripts 	of 	interviews 	with
Victim, her mother, and her siblings.

State v. Klenz
20160742-CA 	18 	2018 UT App 201
¶39 	Defendant points to the fact that Victim was sixteen years
old and “not a young child” at the time of trial, and he suggests
that this case is distinguishable from those cases in which notice
of alleged periods of abuse has “been held to be sufficient in
light of the age of the child victim.” We are not persuaded.
Defendant’s abuse of Victim began when she was around seven
or eight years old, and it recurred regularly until she was fifteen.
Not only was Victim a young child for much of the abuse, but
we see no reason why it would be easier for an older child to
identify specific dates when the abuse is both pervasive and
prolonged. 	Under 	these 	circumstances, 	Victim’s 	imprecision
about the dates of abuse does not undermine the adequacy of the
State’s notice to Defendant. See State v. Wilcox, 808 P.2d 1028,
1033 (Utah 1991) (indicating that “situations in which the abuse
occurred 	on 	many 	occasions 	over 	a 	long 	period 	of 	time”
exacerbate the problem of young children who are unable to
specify a date on which abuse occurred); see also State v. Bradley,
2002 UT App 348, ¶ 49, 57 P.3d 1139 (stating that the defendant
was “adequately notified of the time frame in which the alleged
abuse occurred” even though the children, who were eight and
ten years old, were “not able to specify exact times and dates of
the alleged abuse”).
¶40 	Defendant further suggests that the lack of specificity in
the Amended Information frustrated his attempt to raise an alibi
defense. 	In 	Wilcox, 	the 	supreme 	court 	rejected 	a 	similar
argument for two reasons. 808 P.2d at 1033. First, it explained
that the defendant’s use of an alibi defense does not transmute
time into an element of an offense, nor does a defendant have a
“statutory or constitutional right to a charge framed so as to
facilitate an alibi defense.” Id. Second, the Wilcox court doubted
that 	“an 	alibi 	defense 	[was] 	a 	realistic 	possibility” 	for 	the
defendant 	in 	that 	case. 	Id. 	The 	court 	explained 	that 	if 	the
defendant “had had contact with the child only once or twice,”
specific dates and times would be “critical” and the lack of
specificity therefore would “compromise[] the defense.” Id. at
1034. But because the defendant instead had “continual contact

State v. Klenz
20160742-CA 	19 	2018 UT App 201
with the child half of the time” during the thirty-two-month
period alleged in the information, the supreme court concluded
that the defendant had not shown specific harm resulting from
the lack of exact dates and times in the information. Id. at 1033.
¶41 	The same two rationales apply here. Time is not an
element of the offenses, and Defendant does not have the “right
to a charge framed so as to facilitate an alibi defense.” See id.
Also, an alibi defense was not “a realistic possibility” where
Defendant 	had 	“continual 	contact” 	with 	Victim 	over 	the
seven-year period alleged in the Amended Information, and
thus Defendant has not shown specific harm to his defense
resulting from the lack of exact dates and times. See id.
¶42 	For the foregoing reasons, we conclude that the State
provided Defendant with constitutionally adequate notice of the
date and time of the charged offenses and that the trial court did
not err in denying Defendant’s motion for a bill of particulars.
II. Evidentiary Issues
¶43 	Defendant next contends that the trial court erred in
admitting two different types of evidence. First, he contends that
the court abused its discretion in admitting evidence of his
alleged other bad acts. Second, he contends that the court abused
its discretion in admitting Detective’s statements in the interview
video and at trial. We address each issue in turn.
A. 	Other Bad Acts Evidence
¶44 	Defendant 	contends 	that 	the 	trial 	court 	abused 	its
discretion in admitting evidence of his other bad acts, namely,
the funeral incident, the softball trip incidents, and the parking
lot incident. For other bad acts evidence to be admissible, it must
meet a three-part test that satisfies rules 404, 402, and 403 of the
Utah Rules of Evidence: the other bad acts evidence (1) “must be
offered for a genuine, noncharacter purpose,” (2) “must be
relevant to that noncharacter purpose,” and (3) “the probative

State v. Klenz
20160742-CA 	20 	2018 UT App 201
value of the evidence must not be substantially outweighed by
the danger of unfair prejudice.” State v. Reece, 2015 UT 45, ¶ 57,
349 P.3d 712 (quotation simplified).
1. 	Noncharacter Purpose Under Rule 404
¶45 	Rule 	404(b) 	of 	the 	Utah 	Rules 	of 	Evidence 	provides
that “[e]vidence of a crime, wrong, or other act is not admissible
to 	prove 	a 	person’s character 	in 	order 	to 	show 	that 	on 	a
particular 	occasion 	the 	person 	acted 	in 	conformity 	with
the 	character.” 	Utah 	R. 	Evid. 	404(b)(1). 	Yet 	such 	evidence
“may 	be 	admissible 	for 	another 	purpose, 	such 	as 	proving
motive, 	opportunity, 	intent, 	preparation, 	plan, 	knowledge,
identity, 	absence 	of 	mistake, 	or 	lack 	of 	accident.” 	Id. 	R.
404(b)(2).11 	Thus, 	to 	be 	admissible 	under 	rule 	404(b),
the 	evidence 	must 	be 	“offered 	for 	a 	genuine, 	noncharacter
purpose.” 	Reece, 	2015 	UT 	45, 	¶ 	57 	(quotation 	simplified).
Utah case law recognizes that one such proper noncharacter
purpose is demonstrating “an ongoing behavior pattern which
include[s] [the defendant’s] abuse of the victim.” State v. Reed,
11. Rule 404(c) “explicitly allows” evidence of other acts of child
molestation to be introduced “for the purpose of proving a
defendant’s propensity to commit the child molestation with
which he is charged.” State v. Cuttler, 2015 UT 95, ¶ 26, 367 P.3d
981 (quotation simplified); see also Utah R. Evid. 404(c)(1). As
used in rule 404(c), the term “child molestation” means “an act
committed in relation to a child under the age of 14 which would,
if committed in this state, be a sexual offense or an attempt to
commit a sexual offense.” Utah R. Evid. 404(c)(3) (emphasis
added). Victim testified that the funeral incident occurred when
she 	was fourteen 	years old, 	that the 	softball 	trip 	incidents
occurred 	when 	she 	was 	thirteen 	or 	fourteen, 	and 	that 	the
parking lot incident occurred when she was “like 13 through
15.” Because rule 404(c) may not have applied to all incidents,
we will address the evidence of the other bad acts under rule
404(b).

State v. Klenz
20160742-CA 	21 	2018 UT App 201
2000 UT 68, ¶ 26, 8 P.3d 1025; see also, e.g., id. (“The evidence of
multiple instances of sexual contact with the victim in this
case 	does 	not 	merely 	demonstrate 	[the 	defendant’s]
general character or disposition, but instead demonstrates an
ongoing 	behavior 	pattern 	which 	included 	[the 	defendant’s]
abuse of the victim.”); State v. Cox, 2007 UT App 317, ¶ 31, 169
P.3d 806 (same); State v. Devey, 2006 UT App 219, ¶ 14, 138 P.3d
90 (same).
¶46 	Like Reed, Cox, and Devey, the other bad acts evidence
against Defendant—that he abused Victim outside of Box Elder
County around the same time he was abusing her at home—was
admitted for the proper noncharacter purpose of showing his
ongoing pattern of abusing Victim. On appeal, Defendant has
not distinguished the Reed line of cases or otherwise shown why
the evidence was not properly admitted for this purpose. We
therefore conclude that the trial court acted within its discretion
by 	admitting 	the 	other 	bad 	acts 	evidence 	for 	a 	proper
noncharacter purpose.
2. 	Relevance
¶47 	To 	be 	admissible, 	other 	bad 	acts 	evidence 	must
be relevant to the noncharacter purpose for which it is offered.
Reece, 2015 UT 45, ¶ 57. Under rule 401, “[e]vidence is relevant if:
(a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Utah R. Evid. 401; see
also id. R. 402 (stating that relevant evidence “is admissible”
unless otherwise provided by law). The trial court concluded
that 	the 	other 	bad 	acts 	evidence 	here 	was 	relevant 	to
the noncharacter purpose of establishing the context of Victim’s
allegations and her credibility. Because 	Defendant does not
take 	issue 	with 	that 	conclusion, 	and 	because 	the 	evidence
concerned Defendant’s conduct with Victim and the charges in
this case, see Devey, 2006 UT App 219, ¶ 14, we see no reason to
disagree.

State v. Klenz
20160742-CA 	22 	2018 UT App 201
3. 	Weighing Probative Value and Unfair Prejudice Under
Rule 403
¶48 	Defendant 	argues 	that 	the 	trial 	court 	should 	have
excluded the other bad acts evidence under rule 403, asserting
that its probative value was substantially outweighed by the
dangers of unfair prejudice, confusion, and misleading the jury.
In support, he asserts the other bad acts “suffer[] from the same
lapses in memory, lack of specificity and lack of corroborative
evidence of any type as does the charged conduct”; the other
incidents “differed in significant ways,” as they “all occurred
away 	from 	home”; 	“there 	was 	no 	demonstrable 	temporal
proximity”; the State had no need for the evidence given that
“the jury gained nothing by hearing that the same witness was
also making other allegations against [him]” and that the State
had no need to establish motive and intent; “the alleged other
bad acts had no tendency to help establish disputed elements as
to charged conduct”; and the evidence had a “highly prejudicial”
effect.
¶49 	Rule 403 gives the court discretion to “exclude relevant
evidence if its probative value is substantially outweighed by a
danger 	of 	one 	or 	more 	of 	the 	following: 	unfair 	prejudice,
confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Utah R.
Evid. 403. Under this standard, “a court must determine whether
the probative value of the evidence is substantially outweighed
by its prejudicial effect.” State v. Ring, 2018 UT 19, ¶ 23, 424 P.3d
845.
¶50 	The trial court determined that the probative value of the
other bad acts evidence was not substantially outweighed by the
danger of unfair prejudice. On the one hand, it determined that
the evidence was highly probative for explaining “the scope and
context of the abuse.” We agree. Victim’s testimony about all of
Defendant’s actions, including the other bad acts for which he
was 	not 	charged, 	had 	probative 	value 	because 	it 	“allowed
[Victim] the opportunity to ‘describe the full scope of the context

State v. Klenz
20160742-CA 	23 	2018 UT App 201
of [Defendant’s] conduct over the relevant time period.’” See
State v. Cox, 2007 UT App 317, ¶ 33, 169 P.3d 806 (second
alteration in original) (quoting State v. Devey, 2006 UT App 219,
¶ 15, 138 P.3d 90).
¶51 	On the other hand, the trial court determined that the risk
of unfair prejudice was limited. Again, we agree. Its rationale
was that the other bad acts evidence involved other instances of
abuse and “were essentially interchangeable, were of the same
nature and character, and were carried out on the same victim
during the same uninterrupted course of conduct.” See Devey,
2006 UT App 219, ¶ 15 (quotation simplified); see also State v.
Reed, 2000 UT 68, ¶¶ 26, 31, 8 P.3d 1025 (stating that “evidence of
multiple acts of similar or identical abuse is unlikely to prejudice
a jury” but instead “demonstrates an ongoing behavior pattern
which include[s] [the defendant’s] abuse of the victim”). Under
such circumstances, “jurors will either believe or disbelieve the
testimony based on [Victim’s] credibility, not whether [Victim]
asserts an act occurred three times or six,” and the other bad acts
evidence “does not have the prejudicial effect that may result
from introduction of prior criminal acts committed against a
number of unrelated victims.” See Reed, 2000 UT 68, ¶ 31; see also
Cox, 2007 UT App 317, ¶ 34.
¶52 	We therefore agree with the trial court that the potential
for unfair prejudice did not substantially outweigh the probative
value of Defendant’s other bad acts, and we conclude that the
trial court did not exceed its discretion in admitting evidence of
Defendant’s other bad acts, including the funeral incident, the
softball trip incidents, and the parking lot incident.
B. 	Detective’s Statements
¶53 	Defendant 	contends 	that 	the 	trial 	court 	should 	have
excluded several of Detective’s statements that vouched for
Victim’s credibility, opined on the weight of the evidence, and
assessed Defendant’s innocence. We begin by setting forth the
specific challenged statements, both in the interview video and

State v. Klenz
20160742-CA 	24 	2018 UT App 201
Detective’s trial testimony. We then analyze the substance of
Defendant’s 	arguments 	on 	appeal 	and 	conclude 	that, 	even
assuming the trial court erred in admitting the statements at
issue, Defendant has not shown that he was prejudiced as a
result.
1. 	Statements Made During the Interview Video
¶54 	On 	appeal, 	Defendant’s 	challenge 	to 	Detective’s
statements in the interview video focuses on four segments, with
the 	emphasized 	portions 	representing 	those 	statements 	that
Defendant contends should have been redacted. The following
exchange occurred between Detective and Defendant in the first
segment:
Detective: So, tell me when this has been going on?
Defendant: 	I 	don’t 	know 	what 	you’re 	talking
about. What, . . . I mean, I give my kids hugs and
kisses just like every father. I don’t, I mean, we
have three other kids too. I mean . . . .
. . . .
Detective: She’s alleging that it was just touching
up until she was 12 years old and then from there it
turned into sex.
Defendant: Oh wow.
Detective: So I have some very, very specific, based on
my training and experience, not-made-up, events, where
she’s alleging things have happened between you.
Defendant: Wow.
Detective: There’s too much detail, and too much of
everything else to show, there’s too much trauma—

State v. Klenz
20160742-CA 	25 	2018 UT App 201
Defendant: Oh, wow.
Detective:—of 	what’s 	happened. 	And, 	you 	know,
now’s your time. Have you had sex with [Victim]?
Defendant: No!
Detective: Ever?
Defendant: No!
Detective: Have you ever touched her breasts?
Defendant: I may have, when we have little spats
or something like that. What do you mean . . . ? I
mean, are you talking like with my wife?
Detective: Yeah.
Defendant: No.
Detective: Have you ever touched her vagina?
Defendant: No.
¶55 	The second segment included the following exchange:
Detective: She’s got specific allegations. And very, very
detailed. And, kids aren’t that way unless . . . trauma
occurs. I’ve been a police officer for fifteen years. And
I’ve been a sex crimes detective for three. And to get the
detail that she’s come up with and to be able to be
consistent, to be able to ask her a question this hour, and
come back this hour, and have every detail right on.
Never happens.
Defendant: That or a great imagination, one of the
two.

State v. Klenz
20160742-CA 	26 	2018 UT App 201
Detective: I’ve seen great imaginations and they always
get out of control. . . . I’ve seen a thirteen-year-old create
the novel 100 shades of gray . . . which was unfounded.
Fifty shades of gray is pretty bad. But . . . you could tell
he had never been sexually involved at all in his life
because he had no idea how people’s physical bodies
worked in his disclosure. And I walked away and went,
“Well, that one didn’t happen,” but this one [while
nodding his head].
¶56 	The third segment included this exchange:
Detective: At this point in time I’m going to be
booking you into jail for ten counts of rape of a
child—
Defendant: Geez.
Detective:—and ten counts of aggravated sexual
assault of a child.
Defendant: Oh my God.
Detective: There is a chance that it will go up from
there, because there is a lot of disclosure going on
here—
Defendant: Wow [while shaking his head]. Geez!
Detective:—and it’s very specific.
¶57 	The 	final 	segment, 	which 	occurred 	immediately 	after
Detective notified Defendant of the charges for which he was
being arrested, proceeded as follows:
Defendant: You’ve got to be joking, right?
Detective: No, . . . don’t kid about this. This is—

State v. Klenz
20160742-CA 	27 	2018 UT App 201
Defendant: I’m not!
Detective:—the evidence is staggering. I’ll just say
that.
¶58 	The trial court allowed the jury to hear all of these
statements but gave the jury a limiting instruction directing that
Detective’s 	statements 	should 	be 	considered 	only 	as 	an
“investigative technique.”
2. 	Detective’s 	Trial 	Testimony 	Assessing 	Defendant’s
Credibility
¶59 	Defendant’s 	challenge 	to 	Detective’s 	trial 	testimony
focuses on Detective’s “opinion that [Defendant’s] demeanor
[during the interview] was inconsistent with that of an innocent
man.” Detective testified that “[q]uite a few things” stuck out
about Defendant’s demeanor. When asked to specify, Detective
stated 	that 	Defendant 	showed 	a 	“joviality” 	and 	“lack 	of
defiance” and Defendant made “excited utterances of oh geez,
wow.” 	Regarding 	lack 	of 	defiance, 	Detective 	explained, 	“If
somebody is innocent, . . . they’re saying, there’s no way this
happened, you’re lying, . . . this isn’t true, this is false, things like
that.” Regarding excited utterances, Detective explained that
Defendant’s answers like “oh geez, or wow, things like that”
were “not directed” by Detective and that those kind of answers
are “[n]ot common.”
3. 	Analysis of the Challenged Statements
¶60 	Defendant contends that the trial court erred in admitting
Detective’s 	statements. 	He 	asserts 	that 	those 	statements
improperly intruded upon the “exclusive province” of the jury
because they vouched for Victim’s credibility, compared the
weight 	of 	the 	evidence 	to 	other 	cases, 	and 	opined 	that
Defendant’s 	demeanor 	was 	inconsistent 	with 	innocence. 	He
further argues that “the admission of those statements was
prejudicial,” given that the State’s case “hinged entirely on” the

State v. Klenz
20160742-CA 	28 	2018 UT App 201
jury’s assessment of Victim’s credibility against Defendant’s,
there was “no physical evidence,” “no one . . . corroborated
[Victim’s] story as a witness to any of the alleged crimes,” and
Detective “held himself out as an expert” in child sexual abuse
cases.12
¶61 	The 	State 	responds 	that 	neither 	the 	admission 	of
Detective’s interview statements nor his trial testimony warrants
reversal. 	As 	to 	the 	interview 	statements, 	the 	State 	asserts
that they “were not offered to bolster [Victim’s] credibility” and
instead “provided necessary context for the jury to understand”
Detective’s questions and Defendant’s answers, “enabling the
jury to assess the credibility of Defendant’s answers.” The State
further asserts that the “jury understood those statements to be
investigative techniques only” and that their admission was
harmless. With respect to the admissibility of Detective’s trial
testimony that Defendant’s interview responses were “unlike
those from someone who is innocent,” the State concedes that
Defendant “has a point,” but it asserts that “that testimony . . . is
harmless.” In support, the State refers primarily to Victim’s
12. Defendant did not preserve his objection to Detective’s trial
testimony. He therefore seeks our review of this issue under the
rubric of plain error. To succeed on such a claim, Defendant
must 	demonstrate 	(1) 	an 	error 	that 	is 	(2) 	obvious 	and
(3) harmful. State v. Cox, 2007 UT App 317, ¶ 10, 169 P.3d 806.
Like Defendant and the State, we address together whether any
prejudice resulted from Detective’s statements in the video and
his trial testimony. We ultimately resolve these claims of error
on the basis of lack of prejudice. See infra ¶¶ 63, 65, 74. We also
note that, while Defendant does not seek review of the issue
regarding 	Detective’s 	trial 	testimony 	under 	the 	rubric 	of
ineffective assistance of counsel, “the prejudice test is the same
whether under the claim of ineffective assistance or plain error.”
State v. McNeil, 2016 UT 3, ¶ 29, 365 P.3d 699.

State v. Klenz
20160742-CA 	29 	2018 UT App 201
testimony, Brother’s testimony that “substantially corroborated”
Victim’s testimony, and the mixed verdict.
¶62 	Rule 608(a) of the Utah Rules of Evidence “bars direct
testimony regarding the truthfulness of a witness on a particular
occasion.”13 State 	v. 	Adams, 	2000 	UT 	42, 	¶ 	14, 	5 	P.3d 	642
(quotation simplified); see also State v. Rammel, 721 P.2d 498, 500
(Utah 1986) (explaining that any evidence that calls into question
a witness’s truthfulness “must go to that individual’s character
for veracity” and holding that a detective’s testimony that “most
suspects lie when initially questioned by police” “did not relate
to [the accomplice’s] character for veracity, but instead invited
the jury to draw inferences about [the accomplice’s] character
based 	upon 	[the 	detective’s] 	past 	experience 	with 	other
suspects”); State v. Bragg, 2013 UT App 282, ¶ 31, 317 P.3d 452
(concluding 	that 	a 	“detective’s 	testimony 	that 	[the 	victim]
appeared ‘to be genuine’ during his interview was a direct
comment on [the victim’s] truthfulness and, as such, clearly
violated rule 608”). The danger of such testimony is that it
impermissibly invades the province of the jury, which has the
duty to serve as “the exclusive judge of both the credibility of the
witness and the weight to be given particular evidence.” Adams,
2000 UT 42, ¶ 14 (quotation simplified).
¶63 	While we are troubled by the admission of Detective’s
statements in the video and his trial testimony that suggest that
Victim was credible and Defendant was not, we ultimately do
not 	reach 	the 	question 	of 	whether 	the 	trial 	court 	properly
admitted 	them. 	Rather, 	we 	accept 	the 	State’s 	apparent
13. The rule states, “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. But
evidence 	of 	truthful 	character 	is 	admissible 	only 	after 	the
witness’s character for truthfulness has been attacked.” Utah R.
Evid. 608(a).

State v. Klenz
20160742-CA 	30 	2018 UT App 201
concession 	that 	Detective’s 	challenged 	trial 	testimony 	was
erroneously admitted. And for purposes of our analysis, we
assume without deciding that the trial court erred in admitting
Detective’s statements in the interview video. We resolve both
claims of error based on our prejudice analysis, concluding that
Defendant has not shown that he was harmed by the admission
of the statements.
¶64 	“[N]ot every trial error requires reversal.” State v. Cruz,
2016 UT App 234, ¶ 41, 387 P.3d 618. “Any error, defect,
irregularity or variance which does not affect the substantial
rights of a party shall be disregarded.” Utah R. Crim. P. 30(a).
“Thus, 	errors 	that 	are 	sufficiently 	inconsequential 	that 	we
conclude there is no reasonable likelihood that the error affected
the outcome of the proceedings are harmless and do not require
reversal.” Cruz, 2016 UT App 234, ¶ 42 (quotation simplified).
“A reasonable likelihood requires a probability sufficient to
undermine 	confidence 	in 	the 	outcome.” 	Id. 	(quotation
simplified).
¶65 	For three reasons, we see no reasonable likelihood that
Detective’s interview statements and trial testimony bearing on
credibility 	affected 	the 	outcome 	of 	Defendant’s 	trial. 	First,
Brother’s 	testimony 	provided 	compelling 	circumstantial
evidence that corroborated Victim’s testimony that Defendant
touched her inappropriately. See Bragg, 2013 UT App 282, ¶ 32
(considering the strength of the evidence of the defendant’s guilt
in concluding that this court’s “confidence in the jury’s verdict
[was] not undermined by the detective’s testimony improperly
bolstering 	[the 	victim’s] 	credibility”). 	Victim 	testified 	that
multiple times Defendant touched her breasts, buttocks, and
vagina, both over and under her clothes, while they were on the
downstairs couch. She also testified that Brother “sometimes”
walked in on the abuse, and she described the couch incident,
where Defendant rolled off the couch and threw a blanket over
her, 	leaving 	her 	to 	pretend 	she 	was 	asleep 	before 	Brother
“darted into the bathroom.”

State v. Klenz
20160742-CA 	31 	2018 UT App 201
¶66 	Brother corroborated this version of events by testifying
similarly about the couch incident. According to Brother, when
he 	opened 	the 	door 	of 	his 	bedroom 	one 	night, 	Defendant
immediately rolled off the couch and a blanket was thrown over
Victim. But before Victim was covered up and before he ducked
into the bathroom, Brother saw that her underwear was down to
her knees and her shirt was up around her shoulder. When
Brother left the bathroom, he saw Victim dressed and appearing
to sleep. Brother also testified about other similar scenarios. On
multiple occasions he walked downstairs to see Victim and
Defendant “both pop up” from lying on the couch, followed by
Victim adjusting her bra strap and Defendant asking Brother
questions 	in 	a 	“very 	quick 	and 	panicked 	tone.” 	Although
Brother never inquired about what he saw, Brother testified that
“something was wrong” and he suspected sexual abuse.
¶67 	Because of the similarities between Victim’s and Brother’s
testimonies about the couch incident and about how Brother
walked in other times when Defendant was abusing Victim,
Brother’s 	testimony 	provided 	circumstantial 	evidence
corroborating Victim’s testimony that Defendant touched her
inappropriately. 	Defendant 	rejects 	the 	characterization 	of
Brother’s 	testimony 	as 	corroborative 	of 	Defendant’s 	guilt,
contending that Brother did not “actually observe[] any sexual
activity involving [Defendant] and [Victim],” and that Brother
“flatly contradicted” Victim’s testimony regarding the events
outside his room. We disagree.
¶68 	Brother 	did 	not 	have 	to 	directly 	observe 	the 	sexual
touching for his testimony to corroborate Defendant’s guilt. See
State 	v. 	Stettina, 	635 	P.2d 	75, 	77 	(Utah 	1981) 	(stating 	that
corroboration of a crime “may consist of circumstantial rather
than direct evidence”); see also State v. MacNeill, 2017 UT App 48,
¶ 57, 397 P.3d 626 (“The idea that circumstantial evidence is
necessarily less convincing and of less value than direct evidence
is a misstatement of the law. On the contrary, circumstantial
evidence may even be more convincing than direct testimony.”
(quotation simplified)). His description of the couch incident

State v. Klenz
20160742-CA 	32 	2018 UT App 201
independently 	confirmed 	Victim’s 	description 	of 	the 	event,
including that Victim was undressed when Defendant quickly
rolled off the couch.
¶69 	Further, Defendant’s contention that Brother’s testimony
conflicted with Victim’s is not supported in his brief or by the
evidence. Their testimonies regarding the couch incident were
consistent on the material facts, and when counsel tried to
discredit Brother’s testimony 	by challenging his recollection
about who threw the blanket over whom when he walked out of
his room, Brother explained, “I wasn’t paying attention to who
was throwing the blanket over who. I was paying attention to
the fact that my sister is naked and there’s a blanket going over
her and that is my dad rolling off the couch.”
¶70 	Thus, 	contrary 	to 	Defendant’s 	contention, 	other
corroborative evidence supported Defendant’s guilt on those
charges for which he was convicted, and this is not a case that
hinged entirely on Victim’s credibility.14
¶71 	Second, the jury appears not to have overemphasized
Detective’s 	statements 	related 	to 	Victim’s 	and 	Defendant’s
credibility. This case is similar to State v. Cruz, 2016 UT App 234,
387 	P.3d 	618. 	In 	that 	child 	sexual 	abuse 	case, 	which 	also
involved 	a 	mixed 	verdict, 	this 	court 	concluded 	that 	no
14. See, e.g., State v. Stefaniak, 900 P.2d 1094, 1096 (Utah Ct. App.
1995) (reversing a conviction because the case “hinged entirely on
the credibility of the victim” and there was “not other evidence
to support the defendant’s conviction beyond that which is
tainted by improper testimony” (emphasis added) (quotation
simplified)); State v. Iorg, 801 P.2d 938, 942 (Utah Ct. App. 1990)
(reversing a conviction in a case that hinged on credibility
because the victim’s “version of the events occurring the night of
the alleged abuse was aided only by the challenged testimony of [the
deputy], which was clearly calculated to bolster [the victim’s]
believability” (emphasis added)).

State v. Klenz
20160742-CA 	33 	2018 UT App 201
prejudice 	resulted 	from 	the 	trial 	court’s 	error 	in 	allowing
video recordings of the victim’s interview into jury deliberations
because, 	in 	part, 	the 	convicted 	conduct 	was 	“partially
corroborated by [the mother’s] account of walking in” on the
defendant, “with his pants unzipped and ‘wide open,’ and
[the victim] lying next to him near his hips.” Id. ¶¶ 45, 48.
Because the jury convicted on only the charges corroborated by
the mother and either acquitted or deadlocked on the remaining
charges, 	this 	court 	concluded 	that 	the 	“mixed 	verdict
suggest[ed] 	that 	the 	jury 	scrupulously 	sifted 	the
evidence 	without 	undue 	emphasis 	on 	the 	. 	. 	. 	video
recordings.”15 Id. ¶ 45.
¶72 	We 	reach 	the 	same 	conclusion 	here. 	Defendant
was 	charged 	with 	ten 	counts 	based 	on 	inappropriate
touching, 	as 	well 	as 	twenty 	counts 	based 	on 	both 	rape
and sodomy. As discussed, and like the mother’s account in
15. We recognize that under some circumstances a mixed verdict
can indicate that “‘the jury was conflicted about the evidence
and the competing versions of events offered by the victim and’
the defendant, and that therefore the elimination of certain
evidence may very well have mattered.” State v. Burnett, 2018 UT
App 80, ¶ 39 (quoting State v. Richardson, 2013 UT 50, ¶ 44, 308
P.3d 526), petition for cert. filed, July 5, 2018 (No. 20180520). For
example, in Richardson, the Utah Supreme Court concluded that
the erroneous exclusion of sexual history evidence constituted
harmful error where the case “turned on whether the jury
believed [the defendant’s] version of events or the victim’s.”
2013 UT 50, ¶¶ 41–45 & n.9. In so concluding, the supreme court
explained that, under the circumstances of that case, it could not
“reject the idea that the excluded sexual history evidence could
have tipped the scales wholly in [the defendant’s] favor.” Id.
¶ 44. Given Brother’s corroborating testimony, however, the
circumstances of the case before us are much more like Cruz than
Richardson.

State v. Klenz
20160742-CA 	34 	2018 UT App 201
Cruz, 	Brother’s 	testimony 	corroborated 	Victim’s 	testimony
about 	the 	touching. 	Supra 	¶¶ 65–70. 	Victim 	also 	testified
that 	Defendant 	had 	raped 	and 	sodomized 	her. 	But
where Brother did not testify that he witnessed what appeared
to 	be 	sexual 	intercourse, 	his 	testimony 	was 	less 	probative
regarding those specific acts, and the jury acquitted Defendant of
the 	rape 	and 	sodomy 	charges. 	The 	jury 	therefore 	did 	not
credit 	Victim’s 	testimony 	in 	its 	entirety, 	despite 	hearing
Detective’s 	various 	statements 	about 	her 	credibility 	that
had equal bearing on the touching, rape, and sodomy charges.
The mixed verdict in this case thus strongly suggests it was
the result of a reasoned application of the law to the facts rather
than prejudice engendered by improper bolstering testimony.
See State v. Speer, 750 P.2d 186, 189–90 (Utah 1988) (“[T]he fact
that the jury acquitted defendant of two of the four charges
indicates that the verdict was a result of a reasoned application
of the law, rather than prejudice engendered by the improper
evidence.”).
¶73 	Finally, we observe that the trial court twice instructed
the 	jury 	that 	Detective’s 	statements 	“on 	the 	video 	are 	not
evidence or an expert opinion concerning evidence. Instead, they
are and should be considered only as [Detective’s] investigative
technique.” “In the absence of any circumstances suggesting
otherwise, courts presume that the jury follows instructions.”
State v. Reid, 2018 UT App 146, ¶ 53 (quotation simplified),
petition for cert. filed, Sept. 24, 2018 (No. 20180784). The limiting
instruction in this case thus further mitigated the risk that the
jury 	would 	convict 	based 	on 	Detective’s 	statements 	in 	the
interview video.
¶74 	In light of these circumstances, Defendant has not shown
a reasonable likelihood that any error in admitting Detective’s
challenged statements affected the outcome of the proceedings,
and our confidence in the verdict is not undermined. See Cruz,
2016 UT App 234, ¶ 42. Accordingly, we decline to reverse on
this basis.

State v. Klenz
20160742-CA 	35 	2018 UT App 201
III. Motion to Arrest Judgment
¶75 	Finally, Defendant contends that we should reverse his
convictions because the trial court erred when it denied his
motion to arrest judgment “in light of the inherent improbability
of [Victim’s] testimony.” In support, Defendant asserts that
Victim’s allegations had “troubling and glaring inconsistencies,”
including the “addition of new locations of the alleged abuse,”
an increase in the number of alleged incidents, and the kind of
vocabulary she used to describe the abuse. He asserts that
Victim’s 	testimony 	was 	“unbelievably 	fanciful,” 	citing 	her
testimony that the abuse happened frequently, that it occurred
when family members were in close proximity, and that she still
went to softball tournaments with Defendant even when he was
abusing her. Additionally, he asserts that Victim made “patently
false” 	and 	“rehearsed” 	statements 	to 	“explain 	away 	[her]
inconsistencies.” He also asserts that because Brother “testified
that he never actually observed any sexual activity” between
Defendant 	and 	Victim, 	there 	was 	“no 	actual 	corroborative
testimony” of Victim’s allegations.
¶76 	In evaluating whether to overturn a jury verdict on the
ground 	that 	the 	evidence 	was 	insufficient 	to 	support 	a
conviction, 	“we 	consider 	the 	evidence 	and 	all 	reasonable
inferences therefrom in the light most favorable to the jury’s
verdict 	and 	uphold 	the 	verdict 	if 	we 	conclude 	that 	some
evidence exists from which a reasonable jury could find that the
elements of the crime have been proven beyond a reasonable
doubt.” State v. Carrell, 2018 UT App 21, ¶ 49, 414 P.3d 1030
(quotation simplified). Our role is not to reassess or reweigh the
evidence; instead, we generally “resolve conflicts in the evidence
in favor of the jury verdict.” State v. Prater, 2017 UT 13, ¶ 32, 392
P.3d 398 (quotation simplified). But the Utah Supreme Court has
carved out a narrow exception, under which “a court may
choose to disregard certain testimony on a sufficiency of the
evidence review if that testimony is ‘inherently improbable.’”
Carrell, 2018 UT App 21, ¶ 50 (quoting State v. Robbins, 2009 UT
23, ¶ 16, 210 P.3d 288). This exception applies “only in instances

State v. Klenz
20160742-CA 	36 	2018 UT App 201
‘where (1) there are material inconsistencies in the testimony and
(2) there is no other circumstantial or direct evidence of the
defendant’s guilt.’” Prater, 2017 UT 13, ¶ 33 (quoting Robbins,
2009 UT 23, ¶ 19).
¶77 	On appeal, Defendant relies heavily on Robbins. In that
case, a child accused her stepfather of sexual abuse, but her
testimony “suffered from multiple inconsistencies” that she tried
to cover up with “patently false statements.” 2009 UT 23, ¶¶ 8,
22. 	The 	child’s 	“inconsistent 	accounts” 	included 	statements
about “the extent of the physical abuse she suffered, her age
when the abuse occurred, and what she was wearing at the time
of abuse.” Id. ¶ 22. Though “a reasonable jury could have
attributed those inconsistencies to the child’s age and inability to
accurately identify when an event took place,” Prater, 2017 UT
13, ¶ 38 (citing Robbins, 2009 UT 23, ¶ 22), the supreme court
held that “the patently false statements that [the child] made to
cover up” the inconsistencies in her testimony were “sufficient to
allow the court to reassess her credibility on a motion to arrest
judgment,” Robbins, 2009 UT 23, ¶ 22. In other words, the
inconsistencies in the child’s testimony, standing alone, were not
sufficient to invoke the inherent improbability exception. See id.
Rather, “[i]t was the inconsistencies in the child’s testimony plus
the patently false statements the child made plus the lack of any
corroboration that allowed [the supreme court] to conclude that
insufficient evidence supported [the defendant’s] conviction.”16
Prater, 2017 UT 13, ¶ 38.
¶78 	Defendant has not shown sufficient similarities between
his case and Robbins. First, Defendant has not established that
Victim’s testimony was materially inconsistent. Given that it is
not unusual for a child to testify “somewhat inconsistent[ly],
16. Significantly, in Robbins, “‘no other circumstantial or direct
evidence’ supported the defendant’s guilt.” State v. Prater, 2017
UT 13, ¶ 42, 392 P.3d 398 (quoting State v. Robbins, 2009 UT 62,
¶ 19, 210 P.3d 288).

State v. Klenz
20160742-CA 	37 	2018 UT App 201
especially in sexual abuse cases,” State v. Wells, 2014 UT App 13,
¶ 10, 318 P.3d 1251 (quotation simplified), the inconsistencies in
Victim’s testimony could be “explained by her age and lack of
sophistication,” see Prater, 2017 UT 13, ¶ 38 (citing Robbins, 2009
UT 23, ¶ 22); see also id. ¶ 39 (explaining that mere inconsistency
with prior testimony does not render subsequent testimony
“apparently false” because “the question of which version of [the
witnesses’] stories was more credible is the type of question we
routinely require juries to answer” (quotation simplified)). We
also 	agree 	with 	the 	trial 	court’s 	assessment 	that 	“Victim’s
testimony as to the frequency, location, and extent of the abuse
was not drastically changing, but was consistent in that the
abuse 	occurred.” 	And, 	unlike 	Robbins, 	Defendant 	has 	not
identified any patently false statements. Finally, there was other
evidence of Defendant’s guilt apart from Victim’s testimony. In
particular, Brother testified that he suspected sexual abuse was
happening, and Brother and Victim each testified to a specific
instance in which abuse occurred downstairs outside Brother’s
room.
¶79 	In sum, we conclude that Victim’s testimony was not
inherently 	improbable. 	We 	further 	conclude 	that 	Victim’s
testimony, along with the corroborating evidence, was sufficient
to support the jury’s verdict. See State v. Garcia-Mejia, 2017 UT
App 	129, 	¶ 	27, 	402 	P.3d 	82 	(refusing 	to 	reevaluate 	the
fact-finder’s 	credibility 	determinations 	where 	corroborating
evidence distinguished the case from Robbins and where “any
inconsistencies in the boys’ testimonies can be explained by their
age and lack of sophistication, and there were no patently false
statements 	made” 	(quotation 	simplified)). 	The 	trial 	court
therefore did not err in denying Defendant’s motion to arrest
judgment.
CONCLUSION
¶80 	We 	conclude 	that 	Defendant 	has 	not 	shown 	that 	he
received constitutionally deficient notice of the charges against

State v. Klenz
20160742-CA 	38 	2018 UT App 201
him. Defendant failed to show that the trial court exceeded its
discretion in admitting evidence of other bad acts and that he
was 	prejudiced 	by 	the 	admission 	of 	Detective’s 	statements
bearing on credibility. He also failed to show that the trial court
erred in denying his motion to arrest judgment. Accordingly, we
affirm Defendant’s convictions.