State v. Barnes ( 2023 )

2023 UT App 148THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
LEON WILLIAM BARNES,
Appellant.
Opinion
No. 20210403-CA
Filed December 14, 2023
Third District Court, Salt Lake Department
The Honorable Adam T. Mow
No. 181910110
Andrea J. Garland, Attorney for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.
HARRIS, Judge:
¶1 Leon William Barnes was convicted of object rape and
forcible sexual abuse of his fourteen-year-old stepdaughter
(Stepdaughter). Barnes now appeals, arguing that Stepdaughter’s
testimony was inherently improbable and that there was
insufficient evidence supporting the penetration element of the
object rape charge. He also argues that his trial counsel provided
ineffective assistance of counsel. We reject Barnes’s arguments
and affirm his convictions.
State v. Barnes
BACKGROUND
¶2 In 2018, Barnes resided with his wife (Wife), daughter
(Daughter), niece (Niece), and Stepdaughter (Wife’s child from a
previous relationship) in Salt Lake County, Utah. That year,
Stepdaughter reported to Wife that Barnes had been sexually
abusing her. Upon receiving this report, Wife took Stepdaughter
to a hospital, but medical personnel were unable to perform a
useful examination because the alleged abuse had occurred weeks
or months earlier. Wife also contacted the police.
¶3 Law enforcement personnel arranged for Stepdaughter to
be interviewed at the Children’s Justice Center (CJC) by an
investigating officer (Officer). At this interview, Stepdaughter
offered her version of events. She alleged that Barnes frequented
her bedroom in the early hours of the morning to touch her
“private part.” When asked whether she used this “private part”
to “pee or poop,” Stepdaughter responded “[b]oth.”
Stepdaughter said that this abuse occurred on something close to
a daily basis, and that on one of these occasions, Barnes put his
mouth on Stepdaughter’s breast. And Stepdaughter reported that
during another incident, Barnes claimed that he would “kill her
or actually rape her” if she reported the touching to anyone. At no
point during the CJC interview, however, did Stepdaughter tell
Officer that Barnes had ever penetrated her vagina with his finger.
¶4 A few weeks later, the State charged Barnes with one count
each of forcible sodomy, object rape, forcible sexual abuse, and
tampering with a witness. A preliminary hearing was held at
which Stepdaughter testified. During her testimony,
Stepdaughter described three specific instances in which Barnes
had come into her bedroom and touched her inappropriately; she
stated that, on one occasion, Barnes had penetrated her “private
part” with his finger. At the conclusion of the hearing, the State
withdrew the forcible sodomy charge, and the court declined to
bind Barnes over for trial on the witness tampering charge. The
20210403-CA 2 2023 UT App 148State v. Barnes
court did, however, bind Barnes over for trial on the object rape
and forcible sexual abuse charges, and the State amended the
information to reflect the more limited charges.
¶5 The case then proceeded to a jury trial, which took place in
November 2019. During his opening statement, Barnes’s counsel
outlined the defense’s theory of the case. Essentially, he argued
that the events Stepdaughter described had never taken place,
and that Stepdaughter was not telling the truth about the abuse.
He posited that Stepdaughter was motivated to invent allegations
about Barnes for several reasons, including pressure from other
family members who did not like Barnes, and including
Stepdaughter’s dissatisfaction with Barnes’s apparently strict
parenting style. And counsel suggested that Stepdaughter’s
account of events had changed over time and was inconsistent.
¶6 The State called Stepdaughter as its first witness. During
her testimony, she described the same three specific events she
had discussed during her preliminary hearing testimony. In
particular, she testified that, a few weeks before she turned
fourteen, Barnes asked her if she wanted to “learn about boys,” to
which she replied that she did not. A few weeks later, after
Stepdaughter had turned fourteen, Barnes came into her bedroom
at “like 3 in the morning,” “put his hands in [her] pants,” and
touched her “private part” (Incident 1). She stated that she did not
have “another name” for this part of her body, but she stated that
it was “below [her] stomach” and that she used it “[t]o go to the
bathroom.” When asked to mark the relevant area of the body on
a diagram, Stepdaughter circled the entire front genital area, but
she made no mark on the back side of the body on the diagram.
She testified that, during this first incident, Barnes moved his
hand up and down on her private part for a few minutes, which
caused pain and a burning and pinching sensation. On cross-
examination, Stepdaughter acknowledged that, during this first
incident, Barnes “did not put his finger inside” her private part.
This incident ended when Barnes left to go to work.
20210403-CA 3 2023 UT App 148State v. Barnes
¶7 The prosecutor asked Stepdaughter if she remembered
“another time” when Barnes “came into [her] room and touched”
her, and Stepdaughter answered affirmatively. She testified that,
in this second incident (Incident 2), Barnes again entered her room
around 3:00 a.m., unclipped her bra, and “put his mouth on” her
breast. Stepdaughter marked the location of this touching—her
right breast—on the same diagram.
¶8 The prosecutor asked whether there was “another time
that [Barnes] did something slightly different than what
[Stepdaughter had] described before,” and Stepdaughter
answered in the affirmative. She testified that, in this third
incident (Incident 3), she was in her bedroom, sleeping on the
floor, and Daughter was in the room asleep on the bed. Barnes
entered the room around 5:00 or 6:00 a.m. before leaving for the
airport to catch a flight. He put his hand inside Stepdaughter’s
underwear and “put his finger inside of” Stepdaughter’s “private
part.” When asked to identify, on the diagram, the place “where
he put his finger inside” of her, Stepdaughter placed an “X” in the
center of the circle she had previously drawn in connection with
Incident 1, right at the location of the vagina. The prosecutor
asked her how she knew that Barnes’s finger was “inside of” her,
and Stepdaughter testified that “it felt different” than the
previous occasion and that she “could feel it” inside of her. She
added that Barnes “kind of like pushed it up” and that “[i]t hurt.”
On cross-examination, she continued to maintain that Barnes had
put his finger inside of her, although she acknowledged that she
had not mentioned this during the CJC interview.
¶9 These three incidents were the only ones for which
Stepdaughter offered a specific description, although she testified
that Barnes touched her on nearly a daily basis. When
Stepdaughter told Barnes that she wanted the activity to stop,
Barnes said that, if she told anyone, “he would hurt everybody in
[her] family or he would actually rape [her].” She claimed that she
20210403-CA 4 2023 UT App 148State v. Barnes
did not initially tell people about the abuse because she was
scared and she didn’t think people would believe her.
¶10 Stepdaughter also testified that she first disclosed the
abuse to her mother after an episode in which Barnes became
angry at Stepdaughter when he came to believe that she had
caused a power outage in the basement of the home by
intentionally damaging the fuse box. In her testimony,
Stepdaughter made several statements that were inconsistent
with later testimony provided by Wife and Barnes. She said that
she did not put a screw in one of the breakers or tell Wife that she
had done so, and that Barnes did not threaten to punish her after
this incident. She said that the lights had gone out because she
“flipped a switch” and it “kind of made everything shut down.”
Stepdaughter also claimed that she does not sleep well and that
she was awake when each of the three specific abuse incidents
occurred. And she testified that her natural father had never told
her to report that Barnes was sexually abusing her.
¶11 Next, the State called Wife as a witness, and she testified
that, on the day of the basement blackout, she arrived home and
saw that there was some sort of confrontation going on between
Stepdaughter and Barnes. Wife saw “urgency in [Stepdaughter’s]
face” and observed that Barnes was “standing in [a] door” and not
“letting [Wife] in the room.” Later, after Stepdaughter told her
about the abuse, Wife immediately called the police and took
Stepdaughter to a hospital. At the hospital, healthcare providers
did not complete a sexual abuse examination; they told Wife that
such an exam would not be helpful because the abuse had
happened some time ago. Wife also testified that Barnes would
regularly go to work around 4:00 a.m.
¶12 On cross-examination, Wife said that Stepdaughter
admitted to putting a screw in the fuse box and that Barnes had
threatened to spank Stepdaughter as a result. Wife also confirmed
that Stepdaughter does have trouble sleeping, but that she
20210403-CA 5 2023 UT App 148State v. Barnes
sometimes sleeps until noon when she is able to. In addition, Wife
testified that, some time ago, Stepdaughter’s natural father tried
to get Stepdaughter to allege that Barnes was sexually abusing
her, even though this was untrue at the time.
¶13 Finally, the state called Officer, who testified about
interviewing Stepdaughter at the CJC. Officer testified that she
frequently asks non-leading and non-direct questions, especially
at the beginning, “to allow the child to give as much narrative as
possible.” Officer also testified that it happens “quite frequently”
that a child will disclose something for the first time only after the
initial interview is over. On cross-examination, Officer
acknowledged that, during the interview, Stepdaughter had not
mentioned anything about Barnes putting his finger inside of her
even though Officer asked Stepdaughter to “[t]ell [her] everything
that happened.”
¶14 After the conclusion of the State’s case-in-chief, Barnes
testified in his own defense. He explained that he was a rather
strict parent and that there was tension among Wife’s family
members because of his role in parenting Stepdaughter. He
testified that Niece—who had moved into the house “shortly
before” the basement blackout—had been a bad influence on
Stepdaughter and that Stepdaughter’s respect for Barnes had
deteriorated since Niece moved in. With regard to the blackout
episode, Barnes testified that he told Stepdaughter and Niece—
who he believed were potentially responsible—that, if he ever
found out that they had been responsible, he was “going to beat
[their] ass real good.” Barnes offered his view that Stepdaughter
had reported sexual abuse in an effort to avoid punishment for
causing the basement blackout. Barnes denied ever sexually
abusing or inappropriately touching Stepdaughter.
¶15 After deliberation, the jury found Barnes guilty on both
charges. Barnes then filed a motion for a new trial and to arrest
judgment, arguing that Stepdaughter’s testimony was inherently
20210403-CA 6 2023 UT App 148State v. Barnes
improbable and there was insufficient evidence of penetration to
support the object rape conviction. The trial court disagreed and
denied the motion. Later, the court sentenced Barnes to prison on
both charges, with the sentences to run consecutively.
ISSUES AND STANDARDS OF REVIEW
¶16 Barnes now appeals, and he raises three issues for our
consideration. First, he claims that the State did not present
sufficient evidence to support his convictions. This argument has
two parts. Initially, he asserts that Stepdaughter’s trial testimony
was inherently improbable and therefore cannot be used to
support his conviction on either charge. In addition, he argues
that—either with or without Stepdaughter’s testimony—there
exists insufficient evidence to support the object rape conviction.
For “a sufficiency of the evidence challenge, we will only reverse
the fact finder’s verdict when the evidence is sufficiently
inconclusive or inherently improbable such that reasonable minds
must have entertained a reasonable doubt that the defendant
committed the crime for which he or she was convicted.” State v.
Jok, 2021 UT 35, ¶ 17, 493 P.3d 665 (quotation simplified).
¶17 Second, Barnes asserts that his trial counsel provided
constitutionally ineffective assistance by not requesting a lesser-
included-offense jury instruction on the object rape charge.
“When a claim of ineffective assistance of counsel is raised for the
first time on appeal, there is no lower court ruling to review and
we must decide whether the defendant was deprived of the
effective assistance of counsel as a matter of law.” State v. Guerro,
2021 UT App 136, ¶ 25, 502 P.3d 338 (quotation simplified), cert.
denied, 525 P.3d 1254 (Utah 2022).
¶18 Finally, Barnes has filed a motion, pursuant to rule 23B of
the Utah Rules of Appellate Procedure, asking this court to
remand the case to the trial court for supplementation of the
record regarding additional claims of ineffective assistance of
20210403-CA 7 2023 UT App 148State v. Barnes
counsel. “A remand under rule 23B is available only upon a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.” State v. Tuinman, 2023 UT App 83,
¶ 53, 535 P.3d 362 (quotation simplified).
ANALYSIS
I. Sufficiency of the Evidence
¶19 Barnes first asserts that the State presented insufficient
evidence to support convictions on either charge. Key to Barnes’s
claims in this regard is his assertion that Stepdaughter’s testimony
is inherently improbable and should be disregarded in any
sufficiency-of-the-evidence analysis. In situations like this one,
our analysis has two parts. See State v. Jok, 2021 UT 35, ¶ 30, 493
P.3d 665. First, we must analyze the evidence that Barnes claims
is inherently improbable and “determine[] whether the
challenged piece of evidence is of such a poor quality that it
should be disregarded.” Id. If we determine that the challenged
testimony is inherently improbable, we “then determine if
sufficient evidence remains under which a reasonable jury could
have convicted.” Id.; see also State v. Skinner, 2020 UT App 3, ¶ 26,
457 P.3d 421 (“[A] defendant who raises [an inherent-
improbability] claim . . . is asking the court, in conducting its
sufficiency-of-the-evidence review, to examine only a particular
subset of the admitted evidence, and to disregard certain witness
testimony before undertaking that review.”), cert. denied, 462 P.3d
805 (Utah 2020). At oral argument before this court, the State
conceded that, without Stepdaughter’s testimony, there is not
sufficient evidence to convict Barnes on either charge.
¶20 On the other hand, if we determine that the challenged
evidence is not inherently improbable, our sufficiency-of-the-
evidence analysis will include the challenged evidence. See
Skinner, 2020 UT App 3, ¶ 25. In that situation, we will consider
20210403-CA 8 2023 UT App 148State v. Barnes
“all admitted evidence to determine if some evidence exists that
could support the verdict,” since “it is ordinarily not the court’s
place to disregard any particular items of admitted evidence.” Id.(quotation simplified). Barnes, for his part, acknowledges that, if
Stepdaughter’s testimony is included in the calculus, there exists
sufficient evidence to support his conviction on the forcible sexual
abuse count. Thus, if we reject Barnes’s inherent-improbability
argument, then his sufficiency-of-the-evidence challenge is
limited to the object rape count.
¶21 Given the relationship between Barnes’s arguments, we
examine his inherent improbability claim first, then address his
sufficiency claim only after we know the dimensions of the
universe of evidence we are allowed to consider.
A
¶22 The first issue we must confront is whether Stepdaughter’s
testimony is so inherently improbable that it “should be
disregarded as evidence.” Jok, 2021 UT 35, ¶ 30. Barnes asserts that
Stepdaughter’s testimony satisfies this threshold because, he
argues, her testimony is laden with inconsistencies, lacks
corroboration, and has a “context and history” that includes
“domestic drama” that suggests “possible coaching.” After
examination of Stepdaughter’s testimony, we take Barnes’s point
that it contained certain inconsistencies and other characteristics
that may make good fodder for cross-examination. But we
ultimately reject Barnes’s arguments, because we cannot say that
Stepdaughter’s testimony is so inherently improbable as to
warrant exclusion from the sufficiency analysis.
¶23 In State v. Robbins, 2009 UT 23, 210 P.3d 288, our supreme
court held that “when [a] witness’s testimony is inherently
improbable, the court may choose to disregard it.” Id. ¶ 16. But
testimony is considered “inherently improbable” only if it “run[s]
so counter to human experience that it renders the testimony
inappropriate for consideration in sustaining a finding of guilt.”
20210403-CA 9 2023 UT App 148State v. Barnes
See Jok, 2021 UT 35, ¶ 36 (quotation simplified). Indeed, Utah
appellate courts have noted that labeling a witness’s testimony as
“inherently improbable” should be reserved for “rare cases.” See
id. ¶ 31; see also State v. Rivera, 2019 UT App 188, ¶ 23 n.6, 455 P.3d
112 (“A case which actually falls within the Robbins . . . rubric is
exceedingly rare.”), cert. denied, 458 P.3d 749 (Utah 2020). This is
because “appellate courts typically do not make credibility
determinations,” and typically resolve any arguments about
“conflicts in the evidence in favor of the jury verdict.” Jok, 2021 UT
35, ¶ 28 (quotation simplified); see also State v. Prater, 2017 UT 13,
¶ 32, 392 P.3d 398 (stating that appellate courts “are not normally
in the business of reassessing or reweighing evidence”).
¶24 The test that we apply in considering whether testimony is
“inherently improbable” is “whether the testimony could support
a conviction or whether reasonable minds must have entertained
a reasonable doubt that the defendant committed the crime for
which he or she was convicted.” Jok, 2021 UT 35, ¶ 19 (quotation
simplified). In undertaking this inquiry, courts are to consider the
situation as a whole, including the context in which the testimony
was offered, and are not to consider themselves limited to any list
of factors. Id. ¶ 32 (stating that there is no “strictly factored test”).
There are three hallmarks of inherently improbable testimony that
courts have often considered in their analysis: “material
inconsistencies, patent falsehoods, and lack of corroborating
evidence.” Id.; see also Prater, 2017 UT 13, ¶ 38 (“It was the
inconsistencies in the child’s testimony plus the patently false
statements the child made plus the lack of any corroboration that
allowed this court to conclude that insufficient evidence
supported Robbins’s conviction.”). But our supreme court has
warned “against inflexible reliance on these [three] factors.” See
Jok, 2021 UT 35, ¶ 32. Courts are still allowed—and perhaps even
encouraged—to examine these three factors, but courts must
avoid robotic reliance on them, and must keep in mind that “the
proper test is, and always has been, whether reasonable minds
20210403-CA 10 2023 UT App 148State v. Barnes
must have entertained a reasonable doubt that the defendant
committed the crime.” Id. (quotation simplified).
¶25 With this standard in mind, we address Barnes’s specific
arguments regarding Stepdaughter’s testimony. In that regard, he
does not assert that Stepdaughter’s trial testimony contained any
patent falsehoods. 1 But he does assert that her testimony
contained material inconsistencies, was not corroborated by other
evidence, and was given in a “context” that suggested “possible
coaching.” We examine these arguments, in turn.
¶26 In his briefing, Barnes identifies about a dozen instances
where he believes Stepdaughter’s testimony was inconsistent
with either her previous testimony or with the testimony of Wife,
Barnes, or Officer. These instances include Stepdaughter
testifying that Barnes touched her where she urinates and
defecates though only marking the diagram on the front genital
area; not reporting penetration to Officer during the CJC
interview despite Officer asking Stepdaughter to tell her
everything; indicating that her natural father did not tell her to
report sexual abuse by Barnes, which was contrary to Wife’s
testimony; denying that she put a screw in the breaker box on the
day of the basement blackout and that Barnes had subsequently
threatened to “beat [her] ass,” all of which was contrary to
Barnes’s and Wife’s testimony; and testifying that she was awake
during all three specifically described incidents of abuse, despite
1. With regard to patent falsehoods, the only example to which
Barnes points is a statement Stepdaughter made during her
preliminary hearing testimony in which she testified that, after
one episode of abuse, Barnes left a “$25 bill” on her dresser. But
the jury did not hear this statement, because Stepdaughter did not
repeat it at trial. And in any event, she clarified during later
preliminary hearing testimony that Barnes actually left “[a] $20
and a $5” on her dresser.
20210403-CA 11 2023 UT App 148State v. Barnes
Wife’s testimony that Stepdaughter will sometimes sleep until
noon when she can.
¶27 We acknowledge that Stepdaughter’s testimony included
certain statements that were inconsistent with things she had said
before or with the testimony of other trial witnesses. But this is
true with regard to many complaining witnesses; indeed, it would
be a rare case in which defense counsel could identify no
inconsistencies in the account given by the State’s main witness.
In order to constitute the sort of discrepancies that would raise
inherent-improbability concerns, the inconsistencies in question
need to be “[s]ubstantial.” See Robbins, 2009 UT 23, ¶ 17 (stating
that “[s]ubstantial inconsistencies in a sole witness’s testimony . . .
can create a situation where the prosecution cannot be said to
have proven the defendant’s guilt beyond a reasonable doubt”
(emphasis added)); see also Prater, 2017 UT 13, ¶ 39 (“The question
of which version of [the witnesses’] stories was more credible is
the type of question we routinely require juries to answer.”); In re
J.R.H., 2020 UT App 155, ¶ 11, 478 P.3d 56 (stating that we do not
“apply Robbins to garden-variety credibility questions, such as
which witness to believe, or which version of a witness’s
conflicting account to believe”).
¶28 In our view, the inconsistencies Barnes identifies in
Stepdaughter’s testimony do not rise to a level at which
reasonable minds could not have believed Stepdaughter’s
account. Like our supreme court did in Prater and Jok, we
conclude that the inconsistencies in Stepdaughter’s testimony
were not so pervasive and material as to render her testimony
inherently improbable. See Jok, 2021 UT 35, ¶ 40 (stating that the
witness’s statements “do not approach the level of inconsistency
that may cause us to disregard a testimony”); Prater, 2017 UT 13,
¶ 39 (stating that “the inconsistencies in [the witnesses’] accounts
by themselves are insufficient to invoke the inherent
improbability exception” (quotation simplified)).
20210403-CA 12 2023 UT App 148State v. Barnes
¶29 Next, Barnes asserts that there is little, if any, evidence
corroborating Stepdaughter’s account that Barnes sexually
abused her. Where significant corroborating evidence exists, that
alone can defeat a claim that the complaining witness’s testimony
is inherently improbable. See Skinner, 2020 UT App 3, ¶¶ 31, 34;
Rivera, 2019 UT App 188, ¶¶ 24–25. Indeed, “[c]orroborating
evidence sufficient to defeat a Robbins claim does not have to
corroborate the witness’s account across the board.” Skinner, 2020
UT App 3, ¶ 34. “It just has to provide a second source of evidence
for at least some of the details of the witness’s story.” Id.¶30 In this case, the State asserts that Barnes’s own testimony—
that he would often pass by Stepdaughter’s bedroom door in the
wee hours of the morning on the way to his early-morning job—
provides sufficient corroboration for Stepdaughter’s account. But
this corroborates only a very minor point of Stepdaughter’s
testimony, and provides an independent source of evidence only
for the fact that Barnes had the opportunity to commit the crimes
with which he was charged; it does not provide an independent
source of evidence showing that Barnes actually did commit the
crimes with which he was charged. As Barnes points out, similar
corroborative evidence was available in Robbins itself—it was
uncontested that the defendant shared a house with the
complaining witness (his stepdaughter) and therefore had the
opportunity to commit abuse—yet the Robbins court stated that,
aside from the complaining witness’s testimony, “no other
evidence points to Robbins’ guilt.” See 2009 UT 23, ¶¶ 3, 23. We
therefore agree with Barnes that the mere fact that he shared a
house with Stepdaughter and sometimes passed her bedroom
door at around 3:00 a.m. is not the sort of corroborative evidence
sufficient to, by itself, defeat a Robbins claim.
¶31 But by the same token, the relative lack of corroborating
evidence also does not automatically substantiate a Robbins claim.
Indeed, “a jury can convict on the basis of the uncorroborated
testimony of” the complaining witness. Id. ¶ 14 (quotation
20210403-CA 13 2023 UT App 148State v. Barnes
simplified). The relative lack of corroboration is therefore just one
factor to consider in our ultimate assessment as to whether
“reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime.” See Jok, 2021 UT 35, ¶ 32
(quotation simplified).
¶32 Finally, Barnes asks us to consider “the context and
history” underlying Stepdaughter’s account of events, which
Barnes asserts “indicate[] a reasonable probability that [the
allegations] were prompted by domestic drama [and] possible
coaching.” Even though “context” is not specifically listed among
the “factors” that courts evaluating Robbins claims ought to
consider, we see no reason why courts should not consider
contextual matters in evaluating whether a witness’s testimony is
inherently improbable. After all, the inquiry is a holistic one that
excludes testimony only when it is “so counter to human
experience that it renders the testimony inappropriate for
consideration in sustaining a finding of guilt.” See id. ¶ 36
(quotation simplified). In undertaking this inquiry, consideration
of the context in which the allegations were made could certainly
be relevant.
¶33 Barnes’s specific arguments related to “context and
history” are that Stepdaughter made her allegations in general
protest to Barnes’s apparently strict style of parenting, and in
specific protest to being blamed for causing the basement
blackout. Barnes also notes Wife’s testimony—denied by
Stepdaughter—that Stepdaughter had been under some pressure
from her natural father to accuse Barnes of sexual abuse. But like
the inconsistencies Barnes identifies (discussed above), these
contextual arguments—while perhaps providing material for
cross-examination—do not render Stepdaughter’s testimony
inherently improbable. These kinds of issues are—to one degree
or another—often present in all types of family-based cases,
including not only criminal cases but also divorce, paternity, and
child welfare cases. We recognize that, in some instances,
20210403-CA 14 2023 UT App 148State v. Barnes
especially where other problems with the testimony are
established, see, e.g., Robbins, 2009 UT 23, ¶¶ 4, 22–24, contextual
clues like these might contribute to a determination that a
witness’s testimony is inherently improbable. But in this case,
these issues presented a basis for cross-examination and
argument and may have provided a ground upon which a
factfinder could decide not to believe the complaining witness,
but they are not enough to cause us to consider Stepdaughter’s
version of events inherently improbable.
¶34 In sum, Barnes has not carried his burden of demonstrating
that Stepdaughter’s testimony was inherently improbable. To be
sure, there were inconsistencies in her testimony, and no evidence
was presented directly corroborating her allegations that Barnes
had sexually abused her in her bedroom. But even considered in
context, the questions Barnes raises about Stepdaughter’s
testimony are the kinds of questions that “we routinely require
juries to answer,” after fulsome cross-examination and argument.
See Prater, 2017 UT 13, ¶ 39. As we see it, Stepdaughter’s version
of events was not “so counter to human experience” that it could
not have been credited by a reasonable jury. See Jok, 2021 UT 35,
¶ 36 (quotation simplified). We cannot say that, after reviewing
Stepdaughter’s testimony, “reasonable minds must have
entertained a reasonable doubt that [Barnes] committed the
crime.” See id. ¶ 32 (quotation simplified).
¶35 Accordingly, we reject Barnes’s assertion that
Stepdaughter’s testimony was inherently improbable.
B
¶36 Now that we have determined that Stepdaughter’s
testimony was not inherently improbable, we may consider
Stepdaughter’s testimony in evaluating Barnes’s claim that the
State failed to present sufficient evidence to support his
convictions. As already noted, Barnes concedes that, if
Stepdaughter’s testimony is included in the analysis, there exists
20210403-CA 15 2023 UT App 148State v. Barnes
sufficient evidence to support his conviction for forcible sexual
abuse. He maintains, however, that even considering
Stepdaughter’s testimony, there was not sufficient evidence to
support his conviction for object rape. We disagree.
¶37 Under Utah law, “[a]n actor commits object rape if” the
actor “causes the penetration, however slight, of the genital or
anal opening of [an] individual by . . . a part of the human body
other than the mouth or genitals.” Utah Code § 76-5-402.2(2).
Barnes’s challenge is specific to one statutory element of this
crime: penetration. “‘Penetration’ in this context means entry
between the outer folds of the labia.” State v. Patterson, 2017 UT
App 194, ¶ 3, 407 P.3d 1002 (quotation simplified), cert. denied, 417
P.3d 580 (Utah 2018). In particular, Barnes asserts that
Stepdaughter’s testimony on this point “was too imprecise for the
jury and trial court to infer that she described penetration of the
outer labial folds.”
¶38 As set forth above, Stepdaughter described three specific
incidents of abuse, two of which involved allegations that Barnes
touched her genitals. With regard to Incident 1, Barnes asserts—
in an argument not without force—that any inference that
penetration was achieved would be unduly speculative. After all,
Stepdaughter expressly denied that any penetration occurred
during that incident. We therefore assume, for purposes of our
analysis, that no penetration occurred during Incident 1.
¶39 But Incident 3 presents a different story. Specific to that
incident, Stepdaughter testified that Barnes put his finger “inside”
of her “private part.” On the diagram, she marked the location of
the body part into which Barnes inserted his finger, and she did
so by placing an “X” in the center of the figure’s front genital area,
in the location of the vagina. When she was asked how she knew
that Barnes’s finger was inside of her, Stepdaughter replied that
“it felt different” than the previous occasion on which Barnes
merely touched the outside of her genitals; she testified that, this
20210403-CA 16 2023 UT App 148State v. Barnes
time, she “could feel it” inside of her, that Barnes “kind of like
pushed it up,” and that “[i]t hurt.”
¶40 Despite the apparent clarity of this testimony, Barnes
asserts that Stepdaughter’s testimony can lead only to
“speculation” that Barnes penetrated her genital opening with his
finger. Barnes argues that “there were insufficient facts for a
reasonable inference that Stepdaughter intended ‘inside’ to mean
inside the labial folds.” Barnes contends that Stepdaughter—a
sixteen-year-old witness—needed to have used more precise
language to “explain where she meant the finger went inside,”
especially given her testimony that her “private part” is one she
uses to “both” “pee” and “poop.”
¶41 We simply disagree. In our view, Stepdaughter’s
testimony regarding Incident 3 was sufficiently clear to support a
determination that Barnes inserted his finger far enough into her
genital opening to constitute penetration. She testified clearly that
Barnes put his finger “inside” her private part, one she identified
on the diagram as located where the vagina is located. She
contrasted this incident with Incident 1, in which Barnes had not
penetrated her vagina, and indicated that this incident felt
different because she “could feel” Barnes’s finger inside of her.
This evidence was more than sufficient to support a
determination that Barnes had penetrated her with his finger.
¶42 Accordingly, the State presented sufficient evidence to
support Barnes’s conviction for object rape, and we reject Barnes’s
arguments to the contrary. Thus, sufficient evidence supported
both of Barnes’s convictions.
II. Ineffective Assistance of Counsel
¶43 Next, Barnes claims that his attorney rendered
constitutionally ineffective assistance by forgoing any request for
a lesser-included-offense jury instruction on the object rape
charge. In particular, Barnes asserts that his attorney should have
20210403-CA 17 2023 UT App 148State v. Barnes
asked that the jury be allowed to consider forcible sexual abuse as
a possible lesser-included offense on that count, one that the jury
could avail itself of if it believed that Barnes had touched
Stepdaughter’s genitals during Incident 3 but had not actually
achieved penetration. While we agree with Barnes that his
attorney could reasonably have elected to seek such an
instruction, we reject Barnes’s assertion that his attorney
performed deficiently by electing not to.
¶44 To prevail on an ineffective assistance of counsel claim,
Barnes “must demonstrate that (1) his counsel’s performance was
deficient in that it fell below an objective standard of
reasonableness and (2) the deficient performance prejudiced the
defense.” State v. Ray, 2020 UT 12, ¶ 24, 469 P.3d 871 (quotation
simplified). In assessing the first element—deficient
performance—courts often consider whether counsel’s “action
might be considered sound trial strategy.” See State v. Scott, 2020
UT 13, ¶ 35, 462 P.3d 350 (quotation simplified). Attorneys who
have a sound strategic basis for their actions have “not
perform[ed] deficiently.” Id.¶45 We have previously noted that attorneys often have a
sound strategic basis for deciding not to ask for a lesser-included-
offense instruction. See State v. Powell, 2020 UT App 63, ¶ 42, 463
P.3d 705 (“Even when there is a basis for a lesser-included-offense
instruction, counsel can reasonably decide not to request one.”
(quotation simplified)). “When an appellant challenges trial
counsel’s failure to request a lesser-included-offense instruction
as constitutionally ineffective, the appellant runs headlong into
the strong presumption that, under the circumstances, the failure
to request the lesser-included-offense instruction might be
considered sound trial strategy.” Id. (quotation simplified).
“Depending on the facts of a particular case, counsel may have
perfectly valid tactical reasons to forgo the instruction and to
instead present an ‘all or nothing’ defense that entails avoiding a
lesser-included-offense instruction in the hopes the jury will find
20210403-CA 18 2023 UT App 148State v. Barnes
the defendant totally innocent of any wrongdoing.” Id. (quotation
simplified). For example, counsel does not perform deficiently
when “it would be reasonable for counsel to conclude that
submitting a lesser-included-offense instruction would obviate a
defendant’s reasonable chances of a full acquittal.” Id. ¶ 43
(quotation simplified).
¶46 A reasonable attorney could have decided, in keeping with
a sound trial strategy on the facts of this case, to forgo asking for
a lesser-included-offense instruction on the object rape count.
Here, Stepdaughter did not tell Officer about penetration during
the CJC interview, a fact counsel brought to the attention of the
jury several times during trial. If the jury believed Stepdaughter’s
account that Barnes had touched her genitals during Incident 3
but had not achieved penetration, the jury would have convicted
Barnes of forcible sexual abuse if that had been an option on the
verdict form. But if that option was not available, and the only
option on that charge was object rape, a jury who believed that no
penetration had occurred would have had to acquit Barnes
entirely. On the record before us, this strategy appears eminently
reasonable. While a different attorney might have selected a
different strategy, we cannot say that Barnes’s counsel’s choice of
strategy was constitutionally deficient. Since his attorney had a
“perfectly valid tactical reason[]” for pursuing this strategy,
Barnes has not shown constitutionally deficient performance. See
id. ¶ 42 (quotation simplified). And we need not consider
prejudice, because Barnes’s ineffective assistance claim fails on
the first element. See State v. Navarro, 2019 UT App 2, ¶ 16, 438
P.3d 878 (“Because both deficient performance and resulting
prejudice are requisite elements for a claim of ineffective
assistance of counsel, failure to prove either element necessarily
defeats the claim.”), cert. denied, 455 P.3d 1053 (Utah 2019).
20210403-CA 19 2023 UT App 148State v. Barnes
III. Rule 23B Motion
¶47 Finally, Barnes asks us to remand the case to the trial court
for supplementation of the record so that he can obtain support
for additional claims of ineffective assistance of counsel. In
particular, Barnes asserts that his attorney should have
“investigate[d] and contact[ed]” two of Barnes’s friends (Friends)
who Barnes claims could have testified about “Stepdaughter’s
character for truthfulness.” In addition, he asserts that his
attorney should have allowed him to offer additional testimony
while he was on the witness stand, including details about his
relationship with Stepdaughter and her propensity to lie about
issues large and small.
¶48 Rule 23B of the Utah Rules of Appellate Procedure
“provides a mechanism for criminal defendants to supplement
the record with facts that are necessary for a finding of ineffective
assistance of counsel but which do not appear in the record.” State
v. Griffin, 2015 UT 18, ¶ 17, 441 P.3d 1166. “[A] defendant’s motion
seeking rule 23B remand must meet several requirements: (1) it
must be supported by affidavits alleging facts outside the existing
record, (2) the alleged facts must be non-speculative, and (3) the
alleged facts, if true, must establish both elements of a traditional
ineffective-assistance claim, i.e., counsel’s deficient performance
and resulting prejudice.” State v. Tirado, 2017 UT App 31, ¶ 14, 392
P.3d 926; see also Utah R. App. P. 23B(b).
¶49 Barnes submitted two affidavits with his motion. The first
one is his own, and therein he asserts that he asked his attorney to
contact Friends—individuals he knew from church—who he
believed could have offered helpful testimony. Barnes avers that
Friends told him that Stepdaughter, on one occasion, admitted to
lying about her whereabouts. In particular, Stepdaughter
apparently had told Barnes that she was “going to the mall,” but
told Friends that she had instead “met up with friends.” Barnes
recounts that Friends told him that Stepdaughter then told them
20210403-CA 20 2023 UT App 148State v. Barnes
that she was “a really good liar.” Barnes also claims that his
attorney told him that, despite Barnes’s request that he contact
Friends, he “was not going to look for [Friends] or ask them their
opinion of [Stepdaughter’s] character for truthfulness.”
¶50 Also in his affidavit, Barnes alleges that there was “a lot
more that [he] would have liked to have told the jury” during his
trial testimony. In particular, he would have liked to explain the
basis for a statement he made to the jury that Stepdaughter was
“a good girl.” And he would have liked to say more about the
“challenges” of raising his children, including Stepdaughter. He
also wanted to explain how Stepdaughter was “quite rebellious
for many different reasons,” and that she sometimes “lie[d]”
about various things “to get people to like her.”
¶51 The second affidavit Barnes submitted is from an
investigator who avers that, in 2021 and again in 2022, he
attempted to find Friends but was unsuccessful.
¶52 Barnes’s first argument, in connection with his rule 23B
motion, is that his attorney rendered ineffective assistance by
failing to follow up with Friends. But Barnes has not met his
burden of demonstrating entitlement to remand, because Barnes
has not shown that Friends would have had anything admissible
and material to say at trial. Barnes has not submitted an affidavit
from Friends, presumably because he cannot locate them. We
recognize that Barnes was not necessarily required to submit an
affidavit from Friends. See Griffin, 2015 UT 18, ¶ 27 (rejecting a
requirement, in connection with rule 23B motions, that a
defendant must submit an affidavit from the witness in question).
But he was required to set forth—in an affidavit from someone—
that Friends would have had some admissible and helpful
testimony to offer. And he has not done so.
¶53 In his motion, Barnes claims that Friends’ testimony would
have been important because they could have testified “about
Stepdaughter’s character for truthfulness.” But the State correctly
20210403-CA 21 2023 UT App 148State v. Barnes
points out that “Barnes’s affidavit does not allege that [Friends]
had an admissible opinion on Stepdaughter’s credibility
generally, or what that opinion was, or that Barnes told counsel
that they had such an opinion.” It would be speculative to assume,
based on the affidavit provided, that Friends even have an
opinion about Stepdaughter’s general reputation for truthfulness,
let alone what that opinion might be. Stated another way, Barnes
cannot prevail in a rule 23B motion regarding Friends’ capacity to
testify to Stepdaughter’s general reputation for truthfulness
without submitting an affidavit, from someone, attesting that
Friends had testimony to offer on the topic.
¶54 Rather than offering information about what Friends
would have had to say about Stepdaughter’s general reputation
for truthfulness, Barnes’s affidavit offers two specific anecdotes:
(1) that Stepdaughter had once told Friends that she had lied to
Barnes about her whereabouts and (2) that Stepdaughter told
Friends that she considered herself a “really good liar.” Evidence
that Stepdaughter had apparently once lied to Barnes about going
to the mall would not have been admissible. See State v. Carrera,
2022 UT App 100, ¶ 68, 517 P.3d 440 (“Rule 608(a) of the Utah
Rules of Evidence prohibits any testimony as to a witness’s
truthfulness on a particular occasion.” (quotation simplified)),
cert. denied, 525 P.3d 1264 (Utah 2023). And there is no need for a
rule 23B remand regarding Stepdaughter’s statement about being
a “really good liar,” because Stepdaughter took the stand at trial
and could have been asked about that statement. Barnes does not
allege, in his affidavit, that he asked counsel to cross-examine
Stepdaughter about that statement, and he does not assert, in his
motion, that counsel was ineffective for not doing so. And we are
unpersuaded, in any event, that there is a reasonable likelihood
that the trial would have come out differently had counsel asked
Stepdaughter about that statement.
¶55 For these reasons, Barnes’s first rule 23B argument fails. He
has not provided any nonspeculative extra-record facts about
20210403-CA 22 2023 UT App 148State v. Barnes
whether Friends held an opinion about Stepdaughter’s general
reputation for truthfulness. And the remainder of his allegations
in this regard either could have been raised during trial or concern
evidence that would have been inadmissible in any event.
¶56 Barnes’s second allegation, in connection with his rule 23B
motion, is that his attorney should have asked him additional
questions and allowed him to provide additional information
about his relationship with Stepdaughter and that she sometimes
lied to people about various things. But in his affidavit, Barnes
does not assert that he ever told his attorney about this
information or that he wanted to present it. And we note that
Barnes was asked a number of open-ended questions at trial, and
could have availed himself of the opportunity to add at least some
of this information during his trial testimony. Under such
circumstances, Barnes has not borne his burden of demonstrating
that his attorney performed deficiently, even if we assume that the
allegations in Barnes’s affidavit are true.
¶57 For all of these reasons, the facts in the affidavits attached
to Barnes’s rule 23B motion do not establish deficient performance
or prejudice. We therefore deny Barnes’s motion. 2
CONCLUSION
¶58 Stepdaughter’s testimony was not inherently improbable,
and can therefore be considered in our sufficiency-of-the-
evidence analysis. With Stepdaughter’s testimony included, we
conclude that the State presented sufficient evidence to support
2. Barnes also brings a cumulative error challenge on appeal.
Because we do not see any single error, Barnes cannot succeed in
a cumulative error challenge. See State v. Modes, 2020 UT App 136,
¶ 12 n.5, 475 P.3d 153 (“Because we conclude that there are no
errors to accumulate here, the cumulative error doctrine is
inapplicable in this case.” (quotation simplified)).
20210403-CA 23 2023 UT App 148State v. Barnes
both of Barnes’s convictions. Additionally, Barnes’s trial attorney
did not render ineffective assistance by electing to forgo a request
for a lesser-included-offense instruction. And we deny Barnes’s
motion for a rule 23B remand.
¶59 Affirmed.
20210403-CA 24 2023 UT App 148