State v. Dever , 2022 UT App 35 ( 2022 )

2022 UT App 35THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JOSHUA VANCE DEVER,
Appellant.
Opinion
No. 20200143-CA
Filed March 17, 2022
Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 171901823
Nathalie S. Skibine and Michael D. Misner, Attorneys
for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Following a jury trial, Joshua Vance Dever was convicted
of sodomy upon a child for sexually abusing his ex-girlfriend’s
daughter, Faith. 1 Dever now appeals, arguing, among other
things, that the district court erred in denying his motion for a
directed verdict and in instructing the jury. While we conclude
the court did not err in denying Dever’s motion for a directed
verdict, we agree with Dever that the court’s jury instruction
1. A pseudonym.
State v. Dever
was erroneous. Accordingly, we reverse and remand for a new
trial.
BACKGROUND 2
¶2 Dever began dating Faith’s mother (Mother) when Faith
was around eighteen months old. The couple dated for
approximately four years and had a child together (Sister).
During their relationship, the couple lived together along with
Faith, Sister, and Dever’s older daughter from a previous
relationship (Stepsister). Before the couple separated, Faith and
Dever had a “really good” relationship; Faith called Dever “dad”
and “[s]he loved him.”
¶3 The couple separated in the fall of 2014. However, Dever
continued to care for both Faith and Sister, and he “continued to
be a father figure” to Faith. Although there was no set visitation
schedule, it was typical for the girls to visit Dever “once or twice
a week, if not more,” and they would frequently stay with him
overnight on the weekends while Mother worked. At that time,
Dever lived in his mother’s two-bedroom apartment, which he
shared with her, his younger sister, and Stepsister. Dever did not
have his own bedroom and would sleep on the couch in the
living room. When Faith and Sister stayed overnight, they would
sleep together along with Stepsister on a mattress on the floor of
the living room next to the couch where Dever slept.
¶4 On May 29, 2015, when Faith was six years old, Dever
picked up Faith and Sister for a weekend visit. Dever returned
2. “On appeal from a jury verdict, we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly, presenting conflicting evidence only as necessary to
understand issues raised on appeal.” State v. Rogers, 2020 UT
App 78, n.2, 467 P.3d 880 (quotation simplified).
20200143-CA 2 2022 UT App 35State v. Dever
the girls to Mother’s house on May 31. Upon their arrival home,
Mother unpacked a suitcase containing the clothes Faith and
Sister had worn over the weekend at Dever’s house and placed
them in the washing machine, but she did not start it. Mother
then got the girls ready for bed. As Mother “tucked the girls into
bed,” Faith informed her that she had left her “special blanket”
at Dever’s house and that she did not “ever want to go to Dad’s
house again” because “Dad . . . woke [her] up, . . . took down
[her] underwear, and licked [her] butt.” At trial, Mother testified
that, at that time, Faith used the word “butt” to mean vagina. 3
¶5 Mother promptly contacted the police to report that Faith
had made allegations of sexual abuse. An officer responded and
directed Mother to remove the girls’ clothing from the washing
machine and put it in a paper bag, which she did.
¶6 On June 3, 2015, Faith went to the Children’s Justice
Center (CJC) for an interview. During the interview Faith told
the detective that while she was asleep, “Dad just picked me up,
and he told me just take my underwear off, and he licked my
butt.” Faith also told the detective that she and Sister talked
about “when dad licked our butt.” The detective then asked if
that happened to Sister as well, and Faith responded, “No.”
¶7 When asked about visiting her “dad’s house,” Faith stated
she did not “want to go to [her] dad’s house” anymore; she
explained that while she was at her dad’s house he had removed
her underwear. But when asked if she could remember where it
happened, Faith responded, “I went to mom’s house.” And
3. Mother testified Faith was born prematurely, which had
caused her learning difficulties and required that she repeat a
grade in school. In particular, Faith struggles “connecting words
in sentences,” and she “jump[s] the words” around when telling
a story. In addition, Faith creates “her own words” for things
when she does not know the actual words.
20200143-CA 3 2022 UT App 35State v. Dever
when asked in what room in Dever’s house it had occurred, she
responded, “[W]e’re going to a new place.”
¶8 Next, the detective asked Faith if Dever had “ever done
anything like that to [her] before.” Faith responded in the
affirmative, initially indicating that it “happened two times,”
before immediately changing her answer to “[o]ne time.”
¶9 At the close of the interview, Faith again repeated the
allegation against Dever and stated that it happened at “his
mom’s house.”
¶10 Shortly after the interview, Dever went to the local police
station to speak with the detective. The detective informed
Dever about Faith’s allegations and inquired about Dever’s
activities during the relevant timeframe. Dever denied the
allegations and told the detective he had worked that weekend
and had spent one night out of the house. He also noted that in
addition to Faith and Sister, his mother, his sister, and Stepsister
had all stayed at his house that weekend. A few days later, the
detective asked Dever to provide a DNA sample, which he did.
¶11 Following Faith’s interview, the detective went to
Mother’s house and collected the paper bag that held Faith’s and
Sister’s clothing. The bag’s contents were taken to the local lab
and sorted; six pairs of underwear were removed and packaged
individually. Based on Faith’s allegations in the interview, those
packages were then sent to the state crime lab to test for saliva.
¶12 The crime lab analyst tested each pair of underwear
separately for human alpha-amylase, which is found in saliva
and, although not as concentrated, can also be found in tears and
fecal material. Four of the six pairs of underwear had stains that
tested positive for human alpha-amylase. A small piece of each
positive stain was clipped from the underwear; three cuttings
were sent to an outside lab for further DNA testing.
20200143-CA 4 2022 UT App 35State v. Dever
¶13 DNA testing revealed that two of the samples were
“inconclusive for male DNA.” The third sample contained 0.08%
male DNA. 4 This sample, in turn, was compared against the
reference sample provided by Dever. Based on a comparison of
the two samples, the analyst concluded that Dever could not be
excluded from the DNA found on the underwear.
¶14 In February 2017, nearly two years after Faith’s initial
allegations, Dever was charged with one count of sodomy upon
a child. Shortly thereafter, Faith disclosed to Mother additional
details about Dever’s actions, explaining that during her last
visit to Dever’s house he “took off [her] underwear, licked [her]
butt, and poked [her] with his belly button.” Mother testified
that Faith used “belly button” to mean penis. Mother
immediately contacted the detective, and on April 6, 2017, Faith
went to the CJC for a second interview.
¶15 During the second interview Faith told the detective
Dever “did something to [her]”; he pushed “his belly button . . .
in [her] butt . . . and he licked it.” The detective asked when it
happened, and Faith responded, “Like maybe on a Wednesday,
Thursday, Friday. I don’t know.” She stated that it “made [her]
cry” and she “hated it.” She also indicated to the detective that it
happened “more than one time.”
¶16 Faith told the detective Dever touched her with his “belly
button” while she was at his house, but she did not identify a
4. This sample was from a pair of underwear in size 2T-3T. At
trial, Mother testified that Faith had always “been thin,” whereas
Sister is “short and stockier,” and that the girls “fit in the same
clothes basically all the time.” Although the girls “did not share
clothing” at her house, she testified that sometimes the girls
would return from Dever’s house wearing each other’s clothing
or underwear. Nevertheless, Mother guessed the size 2T-3T
underwear belonged to Sister.
20200143-CA 5 2022 UT App 35State v. Dever
specific room. She initially explained that it happened “[a]t
night” while she was “watching a movie” but later stated that it
happened “[i]n the morning.”
¶17 After Faith’s second interview, the State added a second
count against Dever for rape of a child. However, concerned
about potential delay, the State dismissed the rape charge and
proceeded to trial on the sodomy charge alone.
¶18 A trial on the sodomy charge was held in August 2018.
Although Dever was present in the courtroom, Faith was not
able to identify him. Faith testified the last time she was at
Dever’s house he “picked [her] up,” “pulled” off her clothes,
“licked near [her] vagina,” and “pushed [her] from his . . . big
belly button or something.” She further testified that she “didn’t
like it” and she “was crying.” Faith stated this happened in
Dever’s living room while she was trying to fall asleep. She was
sleeping on the floor in the middle of Sister and Stepsister.
Thereafter, Faith stated that only Dever and Sister were in the
room when it happened. And later, on cross-examination, she
explained that when Dever picked her up she was sleeping next
to Sister because Stepsister “was in her room and their doors
were shut.”
¶19 On cross-examination, Faith testified that the abuse
happened during the “[m]orning and nighttime” and
“[n]ighttime and day.” It happened when the sun was up and it
was “[b]right” outside and also “when it turned dark.”
¶20 Faith also told defense counsel that she was not sick
during her last visit to Dever’s house. And she stated that after
the abuse, Dever took her and Sister back to Mother’s house
where the girls had breakfast.
¶21 Mother testified that prior to the alleged abuse, Faith was
a “very happy,” “very social,” and “sweet little girl.” Faith
enjoyed spending time at Dever’s house and “always seemed to
20200143-CA 6 2022 UT App 35State v. Dever
have fun” during her visits. However, on the weekend of the
alleged abuse, Faith “hid” behind a recliner at Mother’s house
when Dever came to pick her up for the weekend visit. And after
the alleged abuse, Faith told Mother she did not “ever want to go
to [Dever’s] house again” and she no longer referred to Dever as
her father. Furthermore, Faith “couldn’t sleep” and would
“wake up crying,” claiming there were “big monsters over her
bed harming her”; she also became “more fearful of things,”
more “distant,” and no longer wanted anyone to touch her. In
addition, Mother stated that on the weekend of the alleged
abuse, Dever dropped the girls off at her house on Sunday
around 7:30 p.m.
¶22 Dever testified in his own defense. He denied the
allegations and called them “sick.” He also explained that about
one month before Faith made the allegations, Mother started
dating someone new and Faith stopped referring to Dever as her
father.
¶23 Dever testified about his schedule on the weekend of the
alleged abuse. On Friday night, he picked Faith and Sister up
from Mother’s house and took them to his apartment. That night
he cooked them dinner and they “[h]ung out for a little while”
before he bathed them, changed their clothes, and put them to
bed. On Saturday, Dever worked a ten-hour day shift. When he
returned home, he cooked the girls dinner, got them ready for
bed, and then left them at the apartment with his mother while
he went to a bar with his brother. After the bar, he slept at his
brother’s house until about 6:00 a.m. on Sunday, at which point
he returned home and slept until his next ten-hour work shift
that started at 9:00 a.m. On Sunday night after work, he fed the
girls before returning them to Mother’s house.
¶24 Dever’s mother and sister also testified for the defense.
Dever’s mother said that on the weekend of the alleged abuse
Faith, Sister, Stepsister, Dever’s sister, Dever, and she were all in
the apartment. Dever’s mother testified that she always slept
20200143-CA 7 2022 UT App 35State v. Dever
with her bedroom door open and when she dressed the girls she
always made sure they were wearing the correct clothing. She
testified that on Saturday night Faith had “stomach issues.” The
issues caused Faith to be “fussy”; they lasted “off and on
throughout the night” and into Sunday morning. She explained
that both Dever’s sister and Stepsister helped her take care of
Faith that night. Lastly, Dever’s mother testified that on Sunday
morning, Faith had breakfast at her apartment, not at Mother’s
house.
¶25 Dever’s sister testified that on the weekend of the alleged
abuse she was at home. On Saturday night she helped Dever’s
mother take care of Faith, who “had been up most of the night
with an upset stomach.”
¶26 After the close of the State’s evidence, Dever moved for a
directed verdict, arguing (1) the DNA evidence was not enough
to establish identity, (2) Faith was unable to identify Dever as the
perpetrator of the alleged crimes while she was on the stand,
and (3) the State did not meet its burden of proof. The court
denied the motion, ruling that Faith “testified about specific
information including that a person she identified as dad licked
her” and that Dever himself had acknowledged that Faith had
spent time with him during a sleepover and had called him
“dad” at the time of the alleged events. Based on this, the court
determined the State had presented evidence sufficient to “meet
the elements of the . . . crime alleged” and therefore denied the
motion.
¶27 Following closing arguments, the district court instructed
the jury. Included in the instructions was one proposed by the
State titled “Testimony of One Witness” (Instruction 19), which
stated, “The testimony of a witness to a crime standing alone, if
believed beyond a reasonable doubt, is sufficient to convict if the
testimony establishes all of the elements of the offense.” Dever
objected to the instruction as “unnecessary,” arguing that it
“overemphasize[d]” the testimony of one person. The court
20200143-CA 8 2022 UT App 35State v. Dever
disagreed, finding it “reasonable” in light of another instruction
(Instruction 18) addressing witness credibility. Instruction 18
stated, “In deciding whether or not to believe a witness, you may
. . . consider anything . . . you think is important. . . . [Y]ou may
believe all, part, or none of the witness’ testimony. You may
believe many witnesses against one or one witness against
many.”
¶28 The jury convicted Dever of sodomy upon a child.
Defense counsel timely moved to arrest judgment or in the
alternative for a new trial. The district court denied the motion.
ISSUES AND STANDARDS OF REVIEW
¶29 Dever now appeals, raising several issues for our review.
We focus on two of Dever’s claims of error. First, Dever argues
the district court erred by denying his motion for a directed
verdict, claiming the evidence presented at trial was insufficient
to support a conviction because Faith’s testimony was inherently
improbable. “We review the district court’s denial of a motion
for directed verdict for correctness.” State v. Washington, 2021 UT
App 114, ¶ 8, 501 P.3d 1160 (quotation simplified). However,
“where a defendant challenges the denial of a motion for a
directed verdict based on the sufficiency of the evidence, the
applicable standard of review is highly deferential.” Id.(quotation simplified). “We will uphold the district court’s
denial if, when viewed in the light most favorable to the State,
some evidence exists from which the elements of the crime could
be proven beyond a reasonable doubt.” Id. (quotation
simplified).
¶30 Second, Dever argues the district court erred when it
provided an instruction to the jury “that emphasized that a
single witness’s account could support a conviction.” “Claims of
erroneous jury instructions present questions of law that we
review for correctness.” State v. Jeffs, 2010 UT 49, ¶ 16, 243 P.3d
20200143-CA 9 2022 UT App 35State v. Dever
1250. “If a jury instruction is erroneous, we will reverse only if
the defendant shows a reasonable probability the error affected
the outcome of [the] case.” State v. O'Bannon, 2012 UT App 71,
¶ 15, 274 P.3d 992 (quotation simplified). 5
ANALYSIS
I. Inherent Improbability
¶31 Dever first challenges the district court’s denial of his
motion for a directed verdict, arguing the evidence was
insufficient to prove his guilt beyond a reasonable doubt. In
particular, he asserts that Faith’s testimony was “inherently
improbable” and was therefore insufficient to support his
conviction. 6 He argues her testimony contained
5. Dever also argues we should reverse and remand for a new
trial because (1) the district court erred when it dismissed a juror
and replaced the juror with an alternate over defense counsel’s
objection and (2) defense counsel was constitutionally ineffective
in two ways. Because we reverse the jury’s verdict and remand
for a new trial on the ground that the court’s jury instruction was
erroneous, we need not address these additional arguments
because any error in either regard will be remedied by a new
trial.
6. The State argues this claim of error was not preserved. At trial,
Dever moved for a directed verdict on the grounds that (1) the
DNA evidence was not enough to establish identity, (2) Faith
was unable to identify Dever in court, and (3) the State had not
generally met its burden of proof. Citing State v. Doyle, 2018 UT
App 239, ¶¶ 12–19, 437 P.3d 1266, the State argues that
“[i]nsufficient evidence due to inherent improbability in the
crime victim’s testimony is an issue that is discrete enough from
those Dever raised that the [district] court had no notice that it
(continued…)
20200143-CA 10 2022 UT App 35State v. Dever
“inconsistencies” and “patently false statements” and that it
lacked any corroboration.
¶32 Appellate courts “are not normally in the business of
reassessing or reweighing evidence,” and conflicts in the
evidence are typically resolved “in favor of the jury verdict.”
State v. Prater, 2017 UT 13, ¶ 32, 392 P.3d 398 (quotation
simplified); see also State v. Robbins, 2009 UT 23, ¶ 16, 210 P.3d
288. However, because “a conviction not based on substantial
reliable evidence cannot stand,” Robbins, 2009 UT 23, ¶ 14
(quotation simplified), our supreme court has carved out a
narrow exception to this general rule, under which a court may
disregard witness testimony as “inherently improbable” when
“determining if sufficient evidence exists to sustain a
conviction,” id. ¶ 13.
¶33 In determining whether a witness’s testimony may be
disregarded as “inherently improbable,” our supreme court has
identified three factors that merit consideration: “material
inconsistencies, patent falsehoods, and lack of corroborating
evidence.” State v. Jok, 2021 UT 35, ¶ 32, 493 P.3d 665; see also
Prater, 2017 UT 13, ¶ 38; Robbins, 2009 UT 23, ¶ 19. However,
“inflexible reliance on these factors” is improper. Jok, 2021 UT 35,
¶ 32. “The proper test is, and always has been, whether
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime.” Id. (quotation simplified).
(…continued)
needed to address it.” Although the State’s preservation
argument may be well taken, we elect to resolve the claim on the
merits because we can easily do so in the State’s favor. See State
v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (“If the merits of a
claim can easily be resolved in favor of the party asserting that
the claim was not preserved, we readily may opt to do so
without addressing preservation.” (quotation simplified)).
20200143-CA 11 2022 UT App 35State v. Dever
¶34 Thus, where a defendant raises an inherent improbability
claim in the context of a directed verdict motion for
insufficiency, the court must first evaluate the complained of
witness testimony and determine if it is inherently improbable.
This determination cannot be based on “a strictly factored test.”
Id. “Rather, when weighing the testimony in light of the other
evidence, the testimony of the witness must run so counter to
human experience that it renders the testimony inappropriate for
consideration in sustaining a finding of guilt.” Id. ¶ 36 (quotation
simplified). If, after engaging in this analysis, the court
determines the complained of testimony was indeed inherently
improbable, it must disregard that testimony before conducting
its sufficiency-of-the-evidence review.
¶35 Dever first claims Faith’s testimony was inherently
improbable because it “contained internal inconsistencies.”
Specifically, he contends Faith’s testimony was inconsistent
regarding the number of times Dever touched her sexually and
what time of day the touching occurred. Dever notes that during
both CJC interviews, Faith indicated to the detective that Dever
touched her both “one time” and “more than one time.” And
during the second CJC interview, Faith initially claimed the
touching occurred at night but later said it happened in the
morning.
¶36 Although Faith’s accounts were sometimes inconsistent in
these regards, we cannot conclude the inconsistencies render her
testimony inherently improbable. See State v. Ruiz, 2012 UT App
42, ¶ 3, 272 P.3d 185 (“We stress that the court may choose to
exercise its discretion to disregard inconsistent witness
testimony only when the court is convinced that the credibility
of the witness is so weak that no reasonable jury could find the
defendant guilty beyond a reasonable doubt.” (quotation
simplified)). As an initial matter, Utah courts have recognized “it
is not unusual that a child’s testimony be somewhat inconsistent,
especially in sexual abuse cases.” State v. Virgin, 2006 UT 29,
¶ 38, 137 P.3d 787. And mere “inconsistency alone does not
20200143-CA 12 2022 UT App 35State v. Dever
necessarily make a child’s testimony inherently improbable.”
State v. Wells, 2014 UT App 13, ¶ 10, 318 P.3d 1251; see also id.(concluding the child witness’s testimony was not materially
inconsistent where she “describ[ed] fewer incidents [of abuse]
when first examined and then describe[ed] slightly more
incidents on cross-examination”); State v. Kamrowski, 2015 UT
App 75, ¶ 18, 347 P.3d 861 (concluding the victim’s pre-trial
statements and trial testimony were consistent where “she
initially told her stepmother about a single instance of abuse but
was more forthcoming to investigators or prosecutors” after her
initial disclosure); Robbins, 2009 UT 23, ¶ 22 (concluding the
child witness’s “inconsistent accounts regarding the extent of the
physical abuse she suffered, her age when the abuse occurred,
and what she was wearing at the time of the abuse may alone be
insufficient to invoke the inherent improbability exception”).
Indeed, inconsistencies in a child’s testimony could be
“explained by her age and lack of sophistication,” Prater, 2017
UT 13, ¶ 38, and, in some cases, by the child’s “language
limitations and cognitive impairment,” Ruiz, 2012 UT App 42,
¶ 4.
¶37 Dever also claims Faith’s accounts were “inconsistent
with each other” because the rape allegation was not made
during the initial CJC interview and because Faith’s emotional
reaction to the alleged abuse did not occur until two years after
the initial report.
¶38 We disagree with Dever’s characterizations on both
points. Although Faith disclosed an additional allegation of
abuse in the second CJC interview as compared to her initial CJC
interview, it does not appear the separate disclosures were
actually inconsistent. “Delayed discovery and reporting are
common in child sexual abuse cases.” State v. Bair, 2012 UT App
106, ¶ 47, 275 P.3d 1050 (quotation simplified). The “simple fact”
that a child sexual abuse victim “allege[s] additional abuse” after
an initial report “does not make [the child’s] testimony
inherently improbable.” Wells, 2014 UT App 13, ¶ 9; see also id.20200143-CA 13 2022 UT App 35State v. Dever
(concluding that despite the differences between the child
witness’s trial testimony and her original reports regarding the
number of times she was allegedly abused, the “multiple
disclosures were not inconsistent, but merely cumulative, and
simply added more details in the later statements”); State v.
Klenz, 2018 UT App 201, ¶¶ 14, 78, 437 P.3d 504 (concluding the
child witness’s testimony was not materially inconsistent even
though she did not initially disclose all the details of abuse but
did so gradually over time).
¶39 So too with Faith’s emotional reaction. That Faith’s
reaction to the abuse was delayed does not render it inconsistent.
As this court has recognized, sexual assault victims “display a
diverse range of reactions to the harm they suffered.” See State v.
Jok, 2019 UT App 138, ¶ 24, 449 P.3d 610. And in cases where the
victim is a child, the “possible psychological effects of sexual
abuse” “can occur down the road from the abuse.” State v. Boyer,
2020 UT App 23, ¶ 46, 460 P.3d 569 (quotation simplified).
Moreover, in this case, Faith’s emotional reaction began at
approximately the same time she made the second disclosure,
which included the rape allegation. Thus, her reaction was
entirely consistent with the second disclosure.
¶40 Second, Dever claims Faith’s testimony was inherently
improbable because it contained several “patent falsehoods,”
including that Sister was also abused by Dever, that Faith “had
never been sick” during her last visit to Dever’s house, that
Stepsister “was in her room and their doors were shut” when the
abuse occurred, and that Faith went back to Mother’s house
before breakfast after the alleged abuse. We are not persuaded
these statements are patently false.
¶41 Testimony is “patently false” “only when it is physically
impossible or self-evidently false.” State v. Lyden, 2020 UT App
66, ¶ 19, 464 P.3d 1155. But the alleged falsehoods Dever
identifies do not rise to this level. Rather, “[t]he question of
which version of [the witnesses’] stories [is] more credible is the
20200143-CA 14 2022 UT App 35State v. Dever
type of question we routinely require juries to answer.” Prater,
2017 UT 13, ¶ 39.
¶42 Last, Dever claims Faith’s testimony was inherently
improbable because her “allegations were uncorroborated.” In
particular, he argues the forensic evidence did not corroborate
Faith’s allegations.
¶43 But Dever’s argument misses the point. “Corroborating
evidence sufficient to defeat a Robbins claim does not have to
corroborate the witness’s account across the board, in every
particular. It only has to provide a second source of evidence for
at least some of the details of the witness’s story.” State v.
Skinner, 2020 UT App 3, ¶ 34, 457 P.3d 421; see also In re J.R.H.,
2020 UT App 155, ¶ 13, 478 P.3d 56 (concluding that although
“the most contested piece of evidence at trial” was
uncorroborated, Robbins did not apply because “at least
portions” of the victim’s account were corroborated). Here, there
was some evidence to support Faith’s allegations. Faith told the
detective during the first CJC interview that Dever had “licked
[her] butt.” Based on this statement, Faith’s underwear was
analyzed for DNA evidence and it tested positive for male DNA
that did not exclude Dever. Although the testing did not
conclusively prove that Dever was the source of the male DNA,
it was sufficient to corroborate at least some of Faith’s account.
¶44 Moreover, Mother’s testimony regarding Faith’s changed
demeanor after the alleged abuse is sufficient to corroborate
Faith’s account. “Corroboration in a [sexual assault] case may
consist of circumstantial rather than direct evidence.” State v.
Stettina, 635 P.2d 75, 77 (Utah 1981). “Changes in a victim’s
behavior, emotional health, and lifestyle can be circumstantial
evidence that the alleged act occurred.” State v. Anderson, 2020
UT App 135, ¶ 26, 475 P.3d 967; see also State v. Escobar-Florez,
2019 UT App 135, ¶ 65, 450 P.3d 98 (concluding “significant”
changes in the victim’s behavior constituted sufficient evidence
to “prove that [the defendant] had sexual intercourse with [the
20200143-CA 15 2022 UT App 35State v. Dever
victim]”); State v. Cosey, 873 P.2d 1177, 1182 (Utah Ct. App. 1994)
(same). Prior to the alleged abuse, Faith and Dever had a good
relationship; Faith called Dever “dad,” and she frequently spent
time at his house, which she enjoyed. However, after the alleged
abuse Faith no longer referred to Dever as her father and she
told Mother she did not “ever want to go to [Dever’s] house
again.” In addition, Mother testified that after the alleged abuse,
Faith “couldn’t sleep” and would “wake up crying” because
there were “big monsters over her bed harming her.” Faith also
became “more fearful of things,” more “distant,” and no longer
wanted anyone to touch her. These changes in Faith’s behavior
are sufficient to corroborate her account.
¶45 In sum, Faith’s testimony was not inherently improbable
and was therefore sufficient to support a conviction. Although
not perfect in every regard, when weighed “in light of the other
evidence,” the testimony does not “run so counter to human
experience” as to render it “inappropriate for consideration in
sustaining a finding of guilt.” See Jok, 2021 UT 35, ¶ 36 (quotation
simplified). Thus, Dever cannot show that “reasonable minds
must have entertained a reasonable doubt that [he] committed
the crime” for which he was convicted. See id. ¶ 32 (quotation
simplified). And, the district court did not err when it denied
Dever’s motion for a directed verdict. Accordingly, we now
address whether the court erred in instructing the jury.
II. Jury Instruction
¶46 Dever next argues the district court prejudicially erred
when it overruled an objection to Instruction 19, which stated,
“The testimony of a witness to a crime standing alone, if
believed beyond a reasonable doubt, is sufficient to convict if the
testimony establishes all of the elements of the offense.” Dever
contends this instruction was improper because it “unfairly
singled out [Faith’s] testimony and commented on the evidence”
by suggesting the jury could (1) discount inconsistencies in
Faith’s accounts and focus on her trial testimony, “standing
20200143-CA 16 2022 UT App 35State v. Dever
alone,” and (2) disregard other evidence—including Dever’s
own testimony—if, “standing alone,” Faith’s testimony was
credible.
¶47 “It is the sole and exclusive province of the jury to
determine the facts in all criminal cases.” State v. Salgado, 2018
UT App 139, ¶ 38, 427 P.3d 1228 (quotation simplified). Thus, a
district court “may not comment on the evidence or the
credibility of a witness’s testimony.” State v. Taylor, 2005 UT 40,
¶ 22, 116 P.3d 360; see also Utah R. Crim. P. 19(f). “Language
used in jury instructions should not overemphasize an aspect of
the evidence or amount to a comment on the evidence.” Salgado,
2018 UT App 139, ¶ 38 (quotation simplified). Accordingly, a
“jury instruction may amount to an improper comment on the
evidence where the court singles out or gives undue emphasis to
particular evidence while disregarding other evidence.” Id.¶48 Utah appellate courts have yet to address whether a “no
corroboration” instruction like Instruction 19 violates the basic
rule that jury instructions may not amount to a comment on the
evidence. However, courts in other jurisdictions have denounced
such instructions, and we find those decisions persuasive.
¶49 For example, in Gutierrez v. State, 177 So. 3d 226 (Fla.
2015), the Florida Supreme Court held that the use of a “no
corroboration” instruction in a prosecution for sexual battery
was improper. In that case, the defendant was charged with
sexual battery after the victim reported to police that the
defendant had vaginally raped her in the front seat of her car. Id.at 227–28. Following the report, a sexual assault nurse conducted
a physical exam of the victim that revealed bruises and scratches
on her body, including in her vaginal area. Id. at 228. At trial,
evidence of the exam was admitted along with the testimony of
the sexual assault nurse, who opined that the victim’s injuries
could have occurred during both consensual and nonconsensual
sex. Id. at 228, 232. Both parties also stipulated that DNA
collected from the victim during the exam matched the
20200143-CA 17 2022 UT App 35State v. Dever
defendant’s DNA profile. Id. at 228. At the close of trial, the
prosecutor requested a special instruction “advising the jury that
the testimony of the victim need not be corroborated in a
prosecution for sexual battery.” Id. The defendant objected to the
instruction, arguing it “singled out the testimony of the victim
and could mislead the jury into believing it did not need to
weigh or evaluate the credibility of the victim’s testimony.” Id.
The district court provided the instruction, and the jury found
the defendant guilty. Id.
¶50 On appeal, the Florida Supreme Court reversed the
conviction, finding the giving of the “no corroboration”
instruction was reversible error. Id. at 234. The court reasoned
that although the instruction was a correct statement of law, it
was nevertheless improper because it “constitute[d] a comment
on the testimony presented by the alleged victim and present[ed]
an impermissible risk that the jury [would] conclude it need not
subject the victim’s testimony to the same tests for credibility
and weight applicable to other witnesses.” Id. at 229–30. As such,
the instruction violated the long-standing prohibition that “a
judge may not sum up the evidence or comment to the jury upon
the weight of the evidence, the credibility of the witnesses, or the
guilt of the accused.” Id. at 231 (quotation simplified). By
providing the “no corroboration” instruction, the judge
suggested that “one witness’s testimony need not be subjected to
the same tests for weight or credibility as the testimony of
others,” which effectively “bolster[ed] that witness’s testimony
by according it special status.” Id. at 231–32. And because the
evidence was not a “slam dunk” for either side, a reasonable
possibility existed that the erroneous instruction contributed to
the defendant’s conviction. Id. at 233–34 (quotation simplified).
¶51 In addition to improperly commenting on the evidence,
the Florida court noted the “no corroboration” instruction was
improper because the standard instruction on weighing the
evidence was not erroneous and it adequately informed the jury
how to evaluate the weight and credibility of each witness’s
20200143-CA 18 2022 UT App 35State v. Dever
testimony. Id. at 230. Further, the “no corroboration” instruction
was likely to confuse and mislead the jury regarding its duty to
consider the weight of the testimony and credibility of the
victim. Id.
¶52 Other jurisdictions have also disapproved of giving no
corroboration instructions for similar reasons, namely because
such instructions amount to a comment on the evidence and
emphasize the victim’s testimony over other evidence. See Burke
v. State, 624 P.2d 1240, 1257 (Alaska 1980) (concluding
instruction was improper because it “unduly emphasize[d]” that
the victim’s testimony need not be corroborated “without
similarly indicating that other witnesses’ testimony need not be
corroborated” and recognizing that in cases “where the
defendant has given a statement or taken the stand,” such an
instruction would be particularly prejudicial “without similarly
indicating that the defendant’s testimony need not be
corroborated”); Ludy v. State, 784 N.E.2d 459, 461 (Ind. 2003)
(“An instruction directed to the testimony of one witness
erroneously invades the province of the jury when the
instruction intimates an opinion on the credibility of a witness or
the weight to be given to his testimony.” (quotation simplified));
State v. Kraai, No. 19-1878, 2022 WL 258199, at *2–4 (Iowa Jan. 28,
2022) (finding that a no corroboration instruction was improper
because it highlighted the victim’s testimony over other
testimony, including the defendant’s); In re D.D.R., 713 N.W.2d
891, 905 (Minn. Ct. App. 2006) (finding prejudicial error where
the district court instructed the jury that the testimony of the
victim “need not be corroborated”); State v. Stukes, 787 S.E.2d
480, 483 (S.C. 2016) (rejecting a no corroboration instruction and
reasoning that such instructions “invite[] the jury to believe the
victim, explaining that to confirm the authenticity of her
statement, the jury need only hear her speak”); Veteto v. State, 8
S.W.3d 805, 816 (Tex. App. 2000) (finding the “effect of an
instruction that a conviction could be had only on [the victim’s]
testimony” singled out her testimony and amounted to “an
improper comment on the weight of the evidence”), abrogated on
20200143-CA 19 2022 UT App 35State v. Dever
other grounds by State v. Crook, 248 S.W.3d 172 (Tex. Crim. App.
2008); Garza v. State, 2010 WY 64, ¶ 21, 231 P.3d 884 (holding that
a no corroboration instruction was improper because of its
“potential to mislead the jury”).
¶53 Like the “no corroboration” instructions in these cases,
Instruction 19 was improper, and the district court erred in
giving it to the jury. Instruction 19 unduly favored the testimony
of a single witness—in this case Faith—by suggesting that if
believed to be credible, the jury need not consider other
evidence. As a result, the jury could have understood the
instruction as an indication that Faith’s testimony carried more
weight than the testimony of other witnesses or evidence or that
it should not be held to the same level of scrutiny as other
witnesses or evidence. Furthermore, by mentioning only the
“testimony of a witness to a crime,” the jurors could have
believed that the testimony of other witnesses, particularly
Dever, did require corroborating evidence to be believed.
¶54 Having concluded Instruction 19 was erroneous, we must
consider whether it prejudiced Dever. 7 “To reverse a trial
verdict, we must find not a mere possibility, but a reasonable
likelihood that the error affected the result.” State v. Jeffs, 2010
UT 49, ¶ 37, 243 P.3d 1250 (quotation simplified). “When
7. The parties disagree as to which side bears the burden of
proving prejudice. Dever argues the State “should bear the
burden to prove that a preserved error was not prejudicial,”
whereas the State argues Dever bears the burden. Our supreme
court has instructed that “the defendant generally bears the
burden to demonstrate that the error he complains of affected
the outcome of his case.” State v. Reece, 2015 UT 45, ¶ 33, 349 P.3d
712; see also State v. Leech, 2020 UT App 116, ¶ 43 n.7, 473 P.3d
218 (“Except in cases of constitutional error, Utah law places the
burden on the defendant to prove that a preserved error is
harmful.”). Thus, Dever bears the burden here.
20200143-CA 20 2022 UT App 35State v. Dever
reviewing jury instructions, we look at the jury instructions in
their entirety and will affirm when the instructions taken as a
whole fairly instruct the jury on the law applicable to the case.”
State v. Lambdin, 2017 UT 46, ¶ 41, 424 P.3d 117 (quotation
simplified).
¶55 Dever argues he was prejudiced by Instruction 19 because
the evidence presented at trial “was not overwhelming” as to his
guilt and the case “was ultimately a credibility contest—the kind
of case where a ‘judge’s thumb on the scale to lend an extra
element of weight to the victim’s testimony’ could make all the
difference.” (Quoting Gutierrez, 177 So. 3d at 232.) We agree. The
forensic evidence admitted by the State did not conclusively
identify Dever as the source of the DNA on the underwear.
Indeed, during closing argument, the State acknowledged that
“this is not the type of DNA evidence that says ‘Oh, absolutely,
it’s him. It’s the defendant.’” Furthermore, it is unknown
whether the underwear stained with the DNA belonged to Faith
or Sister; and in any event, underwear belonging to both girls
was placed together in a suitcase, then a washing machine, and
then a paper bag before being taken for testing. Likewise, Faith’s
accounts were, at times, inconsistent, and some details cast
doubt on her credibility.
¶56 Moreover, we are not persuaded by the State’s argument
that other jury instructions “directed the jury to consider all the
evidence” thereby rendering any defect in Instruction 19
harmless. To the contrary, when read along with the other jury
instructions about assessing witness credibility, Instruction 19
may have actually confused or misled the jury. For example,
Instruction 18—the court’s model jury instruction regarding
witness credibility—correctly informed the jurors how to assess
witness credibility and weigh witness testimony. See, e.g., State v.
Schmidt, 757 N.W.2d 291, 297 (Neb. 2008) (concluding that a no
corroboration instruction was “redundant and unnecessary”
when considered together with the general witness credibility
instructions). But by giving Instruction 19, the court confused
20200143-CA 21 2022 UT App 35State v. Dever
matters by overemphasizing the testimony of “a witness to a
crime.”
¶57 In sum, we agree with the district court that the State and
Dever both raised “some good points,” “[i]t was a triable case on
each side, and the verdict was not clear until the outcome of the
trial.” There was not a “mountain of evidence” against Dever;
rather, the case ultimately hinged on witness credibility. By
giving Instruction 19, however, the court impermissibly
highlighted Faith’s testimony and suggested that if believed to
be credible, the jury need not consider other evidence. This was
especially problematic here because Dever’s main trial strategy
“was to focus on inconsistencies between [Faith’s] account at
trial and her accounts in the CJC [interviews]” rather than to
present evidence corroborating his account. Given the conflicting
evidence before the jury, particularly Dever’s own testimony, we
cannot say that absent Instruction 19 the jury would have
accorded Faith’s testimony the same weight. Accordingly, we
conclude that without Instruction 19 there is a reasonable
likelihood a jury would have returned a verdict more favorable
to Dever.
CONCLUSION
¶58 The district court correctly denied Dever’s motion for a
directed verdict because Faith’s testimony was not inherently
improbable and was sufficient to support Dever’s conviction.
However, the district court erred in instructing the jury, and
because the evidence that Dever committed the crime for which
he was charged was not overwhelming, our confidence in the
jury’s verdict is undermined. Therefore, we reverse Dever’s
conviction and remand for a new trial.
20200143-CA 22 2022 UT App 35