State v. Stricklan

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 65IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
MICHAEL STRICKLAN,
Appellant.
No. 20180944
Heard February 12, 2020
Filed: October 15, 2020
On Direct Appeal
Third District, Salt Lake
The Honorable Elizabeth A. Hruby-Mills
No. 171902781
Attorneys:
Sean D. Reyes, Att’y Gen., Jeffrey D. Mann, Asst. Solic. Gen.,
Kristin L. Zimmerman, Salt Lake City, for appellee
Troy L. Booher, J. Frederic Voros, Jr., Salt Lake City,
Freyja R. Johnson, North Salt Lake, for appellant
JUSTICE PEARCE authored the opinion of the Court in which
ASSOCIATE CHIEF JUSTICE LEE and JUSTICE PETERSEN joined.
CHIEF JUSTICE DURRANT authored a dissenting opinion in which
JUSTICE HIMONAS joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 A jury convicted Michael Stricklan of two counts of
aggravated sexual abuse of his ten-year-old stepdaughter (E.D.).
Stricklan appeals the district court’s denial of a motion for a directed
verdict and a motion to arrest judgment. In both motions, Stricklan
STATE v. STRICKLAN
Opinion of the Court
argued that the State had produced insufficient evidence to convict
him because, by trial, E.D. had recanted her story that Stricklan had
inappropriately touched her. Instead, E.D. testified before the jury
that she had lied on the two occasions she told a police detective that
Stricklan had touched her chest and backside while she was in her
bedroom.
¶2 The primary question we need to resolve is whether E.D.’s
recantation meant, as Stricklan argues, that our case law dictates that
there was insufficient evidence of guilt to dispel reasonable doubt.
We conclude that the jury was entitled to weigh the two versions of
E.D.’s story, consider the other evidence of Stricklan’s guilt, and
decide which version of E.D.’s story it found to be credible. The
district court did not err in concluding that there was sufficient
evidence to sustain Stricklan’s convictions. We affirm.
BACKGROUND 1
¶3 On the night of Stricklan’s birthday, Stricklan, E.D., and
E.D.’s mother (Mother) went to dinner to celebrate. Upon returning,
E.D. got ready for bed, told Mother and Stricklan goodnight, and
went to her room to sleep.
¶4 The events that followed form the basis of this appeal. E.D.
provided two different accounts of what happened after she went to
bed that evening, and below we explain what the jury heard about
each account. But common to both versions is that sometime in the
early morning, E.D. spoke to Mother, which led to Mother
questioning Stricklan, and Stricklan calling the police. 2
_____________________________________________________________
1 We limit our analysis to only those facts and testimony the jury
heard at trial. So “we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.” USA
Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 8 n.3, 372 P.3d 629 (citation
omitted) (internal quotation marks omitted). “And where the jury
returns a verdict that is reasonably sustained by circumstantial
evidence and the inferences drawn from it, we must uphold the
jury’s verdict.” State v. Nielsen, 2014 UT 10, ¶ 47, 326 P.3d 645.
2 The jury heard testimony from Officer Hulse, Officer Dallof, and
Detective Timpson. Stricklan’s father and E.D. also testified. E.D.’s
mother invoked spousal communications privilege and did not
testify at trial.
2
Cite as: 2020 UT 65Opinion of the Court
¶5 Officer Hulse testified that police dispatch sent her and
Detective Holdaway to investigate a possible sexual abuse case.3
When Hulse arrived at the home around 5:00 a.m., she observed that
Stricklan appeared intoxicated. Hulse spoke to Mother and E.D. in
Mother’s bedroom. Hulse spoke mainly to Mother. Both Mother and
E.D. appeared upset and looked as though they had been crying.
Hulse testified that Mother appeared “like she had been crying for a
while; she appeared very upset.” She also noted that E.D.’s face “was
kind of swollen like she had been crying and was kind of still crying
as she was sitting there.” Hulse did not interview Stricklan.
¶6 Officer Dallof replaced Hulse around 5:30 a.m. Dallof
testified that Detective Holdaway arrived at the residence around
6:40 or 7:00 a.m. and interviewed E.D. 4 E.D. told the detective that
Stricklan had touched her on the “boobs and the butt.”
¶7 Detective Holdaway also interviewed Stricklan. According
to Dallof, Stricklan told Holdaway he was watching television when
Mother came out and confronted him. Stricklan told Holdaway that
Mother said to him that E.D. had told her that he had touched E.D.
When Holdaway asked why E.D. would say Stricklan touched her,
Stricklan replied something to the effect of, “I don’t know why.”
Holdaway also asked Stricklan if he had gone into E.D.’s room.
Stricklan said he had entered to turn off the light and the television.
Stricklan not only denied touching E.D. inappropriately, but also
denied that he had touched her at all.
¶8 Holdaway explained the investigation process to Stricklan
and advised him to leave the home and stay elsewhere while the
investigation proceeded. Dallof testified he heard Stricklan then call
someone on the phone and say that he needed a ride because he
“acted inappropriately and I need you to come and pick me up,” or
_____________________________________________________________
3 The preliminary hearing transcript records the officer’s name as
Hulse, and when asked to spell her name, the officer spells Hulse.
But at trial, the officer’s name is listed as Holst. We opt to go with the
preliminary hearing’s orthography.
4 Detective Holdaway passed away shortly after the incident.
Portions of his reports and interviews were introduced at trial
through the testimony of other officers.
3
STATE v. STRICKLAN
Opinion of the Court
“I acted inappropriately, I can’t stay here, I need you to come and
pick me up.” 5
¶9 The jury also heard E.D. testify that she and Mother went to
the Children’s Justice Center (CJC). During the CJC interview, E.D.
told the detective that Stricklan had touched her “right at the
bottom” and on her “boobs.”
¶10 A few days after the incident, Stricklan voluntarily went to
the police station to talk to Holdaway. Stricklan told Holdaway that
E.D. had never lied to him. Stricklan said that he did not think E.D.
was making anything up. Stricklan also indicated he did not have
“any recollection” of what happened that night. He indicated he did
not remember turning off E.D.’s television or light or going into her
room at all.
¶11 Detective Timpson testified there was some concern that
Stricklan was either impaired or intoxicated during the initial
interview on the night of the incident. 6 But at the time of the follow
up interview, Stricklan indicated he was sober and had just come
back from an Alcoholics Anonymous meeting.
¶12 Stricklan then discussed the events of the night of the
incident and admitted that he had been drinking. Stricklan indicated
that he remembered watching television and then “his wife coming
out yelling at him and waking him up.”
¶13 At trial, E.D. testified that what she told Holdaway at the
CJC was a lie. E.D. testified that Stricklan did not touch her. E.D.
explained that she woke up during the night because her television
was off, and she was used to sleeping with the sound on. She
testified that when she woke up, she saw Stricklan on the floor and
went to tell Mother. E.D. testified Mother got up and asked Stricklan
what he was doing. According to E.D., Stricklan responded that he
did not know, “got scared and so that’s when he told, called the cops
on himself.”
_____________________________________________________________
5 At trial, Stricklan’s father testified he received a call from
Stricklan the morning of the incident. He indicated his son sounded
impaired or like he “had been drinking a lot” and that Stricklan told
him he had been “accused of improper behavior.”
6 Timpson reviewed Holdaway’s recordings of the interviews
with E.D. and Stricklan and testified about those interviews based on
his review.
4
Cite as: 2020 UT 65Opinion of the Court
¶14 The State reminded E.D. that she had previously given
another reason why she woke up that night. When asked about her
prior statements to Holdaway, E.D. did not want to testify and tried
to invoke her Fifth Amendment right. The court recessed so E.D.
could watch a portion of the video of her CJC interview outside the
presence of the jury.
¶15 After watching the video, E.D. was again asked about her
prior statements to Holdaway during the CJC interview.
Q: Did that refresh your recollection of what you told
the detective?
A: Yes.
Q: Can you tell me what you told the detective?
A: That he touched me and stuff and that is a lie
because I was so scared because I thought I was going
to get in trouble and then my mom was going to get in
trouble. So yeah.
Q: Tell me what you told the detective.
A: That he touched me right at the bottom.
....
Q: Okay. And did you tell the detective that it was over
the clothes, under the clothes, or something else?
A: That part I don’t remember.
Q: Okay. So touched your bottom and what else did
you tell the detective about where [Stricklan] touched
you?
A: On the back and the chest area.
Q: Okay. Do you have another word for chest area so I
understand what you mean?
....
A: My boobs? I don’t know.
Q: Okay. Is that the right word, boobs? Is that what
you told the detective indicating where he touched
you?
A: Yes, uh-huh (affirmative).
¶16 E.D. also testified that she could not remember what she
told Holdaway about how she had awakened that night. When
responding to defense counsel’s questioning, E.D. indicated she
could not remember what she told Holdaway the day of the incident
or at the CJC because she “couldn’t remember what [she] made up.”
E.D. confirmed that she had twice told the police that she was
“touched on the boobs and the butt”—once when Holdaway came
the night of the incident and once at the CJC interview.
5
STATE v. STRICKLAN
Opinion of the Court
¶17 E.D. said that she told Holdaway a lie because she was
scared. E.D. offered that “nothing happened” that night. And when
questioned by defense counsel, E.D. testified she was “100 percent
sure” that Stricklan did not touch her and that there was “no doubt
in her mind.” E.D. also testified that nobody had pressured,
threatened, or promised her anything to say Stricklan did not touch
her. When asked, “Are you saying that [Stricklan] didn’t touch your
boobs or your butt because that is 100 percent the truth?” E.D.
responded, “Yes.”
¶18 E.D. also confirmed testimony she had given at Stricklan’s
preliminary hearing in which she indicated she has had an
“experience when [she wakes] up and being half awake that [she]
sometime[s] say[s] crazy and untrue stuff.” When asked by defense
counsel, E.D. confirmed that “when [she] woke up [she] had one of
those crazy and untrue moments in which [she] believe[d] that
[Stricklan] had touched” her. E.D. further testified she was afraid
when she “told the police the lie” at the CJC and was “afraid that
[she] and [her] mother were going to get in trouble.”
¶19 E.D. testified that when she finally “spoke[] out the truth,
now I don’t feel like I’m going to get in trouble anymore.” And she
later testified, “No, I said it didn’t happen, so . . . that’s the truth, it
didn’t happen.”
¶20 The State asked E.D. about the change in her story. The State
focused on what life had been like after Stricklan left. E.D. testified
that the house was quiet. She said that she, Mother, and her
grandparents all missed Stricklan. E.D. also testified that Mother
cried “a whole bunch of times” after Stricklan’s departure. E.D.
stated she sees Stricklan “as [her] own father, [she] treats him as
[her] own father.”
¶21 Stricklan did not testify at trial. But the jury heard testimony
regarding Stricklan’s interview with Holdaway a few days after the
incident. Two portions of the recorded interview between Holdaway
and Stricklan were played for the jury.
Q: Well, has, has she ever lied to you, your daughter?
A: E.D.?
Q: E.D.
A: Never.
Q: Okay. So do you think she’s making this up?
A: No.
Q: You just don’t remember how that happened?
6
Cite as: 2020 UT 65Opinion of the Court
A: I don’t have any recollection of it, sir. I’m telling you the
truth. I have no idea.
Q: Okay.
¶22 The jury also watched the following exchange between
Holdaway and Stricklan:
Q: Do you remember turning off or turning on E.D.’s tv?
A: No, (inaudible).
Q: Or light or anything? So you don’t? You don’t remember
going into her room at all?
A: No, I do not.
¶23 Timpson also testified concerning some inconsistencies in
Stricklan’s accounts. At various times, Stricklan told Holdaway:
(1) that he did not remember going into E.D.’s room or turning off
her light; (2) that he did not go into her room; and (3) that he did not
remember whether or not he went into her room. Timpson further
testified that Stricklan indicated E.D. was asleep in her room and
that around eleven p.m. or midnight Mother also went to bed.
Stricklan indicated he was watching television and “the next thing
he remembered was his wife coming out yelling at him and waking
him up” about “the allegations.”
¶24 At the close of the State’s case, Stricklan moved for a
directed verdict. Stricklan relied on cases holding that a single,
out-of-court and uncorroborated statement cannot sustain a
conviction as a matter of law.
¶25 The district court denied Stricklan’s motion. The court
distinguished the cases Stricklan cited because E.D. “does not deny
having made” the out-of-court statements. The district court
observed that the evidence the State presented was “not real strong
corroboration, but we’re looking at circumstantial, other evidence
and what law enforcement found when they went to the house with
the emotions that were going on, overhearing the statement by
defendant on the phone . . . .” The district court found that this
circumstantial evidence was enough to permit the case to go to the
jury.
¶26 The jury convicted Stricklan of two counts of aggravated
sexual abuse of a child. Stricklan moved to arrest judgment. Stricklan
again argued the State had not presented evidence to corroborate
E.D.’s recanted, out-of-court statement.
¶27 The district court denied this motion. The court noted that it
assessed “the evidence viewed in the light most favorable to the
7
STATE v. STRICKLAN
Opinion of the Court
jury’s verdict [to] determine if it is sufficiently inconclusive or so
inherently improbable that reasonable minds must have entertained
a reasonable doubt as to an element.” Based on that standard, the
district court found there was “corroborating evidence . . . in the
totality of what was presented to the jury, in light of that and the
witnesses who were here and how the entire trial did turn out” and
there was no cause to reverse the jury verdict.
¶28 The district court sentenced Stricklan to fifteen years to life
for each count, with the sentences to run concurrently. Stricklan
appeals the district court’s denial of his motions.
ISSUES AND STANDARDS OF REVIEW
¶29 The issue before us is whether the district court erred by
denying Stricklan’s motions for directed verdict and to arrest
judgment. Stricklan raises three arguments: (1) there was insufficient
evidence to convict because, at trial, E.D. denied the truthfulness of
her out-of-court statement and the State failed to produce any
evidence to corroborate E.D.’s original account; (2) the State did not
produce evidence of Stricklan’s intent; and (3) E.D.’s testimony was
inherently improbable.
¶30 We review a district court’s grant or denial of a motion for
directed verdict and to arrest judgment for correctness. Ferguson v.
Williams & Hunt, Inc., 2009 UT 49, ¶ 19, 221 P.3d 205; see also State v.
Workman, 852 P.2d 981, 984 (Utah 1993). A defendant has a
“substantial burden on appeal to show that the trial court erred in
denying a motion for directed verdict.” State v. Gonzalez, 2015 UT 10,
¶ 27, 345 P.3d 1168. We will uphold a denial of the motion for
directed verdict based on an insufficiency of the evidence claim, “if,
when viewed in the light most favorable to the State, ‘some evidence
exists from which a reasonable jury could find that the elements of
the crime had been proven beyond a reasonable doubt.’” Id. (quoting
State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183). Thus, a defendant
seeking a directed verdict must show that, “when viewed in the light
most favorable to the State, no evidence existed from which a
reasonable jury could find beyond a reasonable doubt” that the
defendant committed the crime. Id. (emphasis added).
¶31 Similarly, we reverse the denial of a motion to arrest
judgment only if “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. Workman, 852 P.2d 981,
984 (Utah 1993).
8
Cite as: 2020 UT 65Opinion of the Court
¶32 As to the third issue, under State v. Robbins, a judge ruling
on a motion to arrest judgment has “leeway to determine whether a
witness’s testimony is so incredible that it could not have supported
an essential element of the charge.” 2009 UT 23, ¶ 21, 210 P.3d 288.
The test is whether the testimony is “inherently improbable.”
Id. ¶ 18. We review an interpretation of the “inherent improbability
criteria for correctness.” Id. ¶ 13.
ANALYSIS
¶33 Stricklan first asserts that the district court erred when it
denied his motions because the State presented insufficient evidence
of his guilt. To prove sexual abuse of a child, the State needed to
show that Stricklan “touche[d] the anus, buttocks, pubic area or
genitalia of any child, [or] the breast of a female child, . . . with intent
to cause substantial emotional or bodily pain to any individual or
with the intent to arouse or gratify the sexual desire of any
individual.” UTAH CODE § 76-5-404.1(2). 7 To prove aggravated sexual
abuse, the State had to demonstrate that “the offense was committed
by an individual who occupied a position of special trust in relation
to the victim.” Id. § 76-5-404.1(4)(h). A position of special trust is
defined to include a stepparent, like Stricklan. See id.
§ 76-5-404.1(1)(c)(xviii).
¶34 Thus, to convict Stricklan of aggravated sexual abuse of a
child, the State was required to produce sufficient evidence that
Stricklan: (1) touched E.D., a child, on her breast, anus, buttocks,
pubic area, or genitalia; with (2) an intent to cause substantial
emotional or bodily pain or arouse or gratify sexual desire; and
(3) that Stricklan occupied a position of special trust. See id.
§ 76-5-404.1. Stricklan argues the State failed to introduce sufficient
evidence that he touched E.D. and that any such touching was
performed to cause pain or arouse sexual desire.
¶35 Stricklan’s first argument focuses on the effect of E.D.’s
recantation of her statements to police that Stricklan had touched
her. Stricklan contends that this court has held that a conviction
based solely on an uncorroborated out-of-court statement is
insufficient evidence to sustain a conviction. See State v. Webb, 779
P.2d 1108, 1115 (Utah 1989); State v. Ramsey, 782 P.2d 480, 484 (Utah
1989). He posits that the State failed to introduce any corroborating
_____________________________________________________________
7 The code defines a child as an individual under the age of
fourteen. UTAH CODE § 76-5-404.1(1)(b).
9
STATE v. STRICKLAN
Opinion of the Court
evidence, and any evidence the State did present at trial might
corroborate the fact that E.D. made an allegation but fails to
corroborate the truth of that allegation.
¶36 Stricklan argues that in two cases, Webb and Ramsey, we
demarcated a bright line rule that a single uncorroborated hearsay
statement is insufficient to support a verdict. Stricklan avers the
Webb/Ramsey rule resolves this appeal.
¶37 The State contends that Webb and Ramsey are legally and
factually distinguishable. The district court agreed with the State and
distinguished Stricklan’s case from Ramsey, reasoning that “in this
case the alleged victim does not deny having made those
statements.” And again in ruling on Stricklan’s motion to arrest
judgment, the district court proclaimed that “this is not the Ramsey
case” and found corroborating evidence “in the totality of what was
presented to the jury, in light of that and the witnesses who were
here and how the entire trial did turn out.” Based on this evidence,
the district court found no cause to reverse the jury verdict.
¶38 We take a different lesson from the holdings of those
opinions. Rather than concentrate on whether this case most
resembles Webb, Ramsey, or one of the cases in which we applied
them, we believe it more helpful to explore the development of that
case law to understand what considerations inspired us to rule the
way we did and how those considerations might apply to the facts of
Stricklan’s case.
I. The Webb/Ramsey Rule
¶39 The rule Stricklan relies upon emerged from two cases
decided within three months of each other. See State v. Webb, 779
P.2d 1108 (Utah 1989); State v. Ramsey, 782 P.2d 480 (Utah 1989).
¶40 In Webb, a jury convicted the defendant of aggravated sexual
abuse of his 18-month-old daughter. Webb, 779 P.2d at 1108
(Zimmerman, J., writing separately). Webb visited his daughter at
his ex-wife’s apartment and was alone with the girl while her mother
was at work. Id. at 1109. That evening, as the mother was lowering
the girl into the bath, the child said, “Ow bum.” Id. The mother then
examined the girl’s bottom, during which the child said, “Ow bum
daddy.” Id. The mother noticed some redness and swelling. Id. The
mother took the child to a doctor who observed an anal tear. Id. At
the doctor’s direction, a photograph was taken of the child’s bottom.
Id. The State charged Webb with aggravated sexual abuse. Id.
10
Cite as: 2020 UT 65Opinion of the Court
¶41 At trial, the evidence against Webb consisted of the mother’s
recitation of the child’s statements, the photograph, and the opinion
of the examining physician that the child had been abused. Id.¶42 Webb introduced the testimony of a pediatric resident who
reported that her examination of the girl did not reveal any tears,
fissures, or bruising of the anal area. Id. The resident opined the girl
had not been abused. Id. Another pediatrician, who specialized in
child sexual abuse, reviewed the girl’s medical records, the
photograph of the girl’s injury, and the treating physician’s report.
Id. He opined that the photograph did not show a fissure or injury.
Id. The jury convicted Webb, and Webb appealed. Id. at 1109–10.
¶43 One justice would have found that the district court erred in
admitting the child’s statement without finding that the child was
“unavailable” for cross-examination and would have remanded to
permit the district court to rule on that question. Id. at 1114. The
Webb majority reacted vehemently to that proposed resolution,
stating
[I]t is the view of the Court that there is no point in
remanding this case to the trial court to determine
whether the child declarant is unavailable, since a
remand assumes that defendant can be convicted of the
crime charged on the basis of a one-and-a-half-year-
old’s exclamations, “Ow bum,” or “Ow bum daddy.”
That evidence is not sufficient as a matter of law to
support a conviction.
Id. at 1115 (majority opinion).
¶44 The majority concluded that it was “beyond credulity” that
a person could be convicted based on the out-of-court statement of
an 18-month-old. Id. The court noted that the child could not speak
in sentences nor engage in a coherent conversation. Id. According to
the court, “[t]he statement ‘Ow bum’ while being lowered into bath
water and her later statement, ‘Ow bum daddy,’ do not constitute an
accusation against defendant of the elements of the crime of child
abuse.” Id. Indeed, the court reasoned that “[t]he child’s outcry could
have been to elicit help from her daddy, or it could have had several
other meanings.” Id. The court also reasoned that even if this
evidence could allow a jury to conclude that Webb had touched the
child, it did not speak to any intent to arouse or gratify Webb’s
sexual desire. Id.
¶45 After reciting those evidentiary problems, the court dropped
a single sentence for legal support: “The law is that a single
11
STATE v. STRICKLAN
Opinion of the Court
uncorroborated hearsay statement is not substantial evidence and
not sufficient to support a verdict.” Id. And it cited United States v.
Orrico, 599 F.2d 113, 118 (6th Cir. 1979), for that proposition. Webb,
779 P.2d. at 1115. The one-line exposition of the law on this subject
conveyed a certainty that may have been undeserved.
¶46 In Orrico, the defendant was convicted of fraudulently
cashing checks. 599 F.2d at 114. The government alleged that
incoming checks were improperly diverted into a separate account
used to support a struggling business. Id. at 115. And the
government alleged that Orrico had authorized a bookkeeper to
endorse and deposit checks into that account. Id.¶47 At trial, the bookkeeper did not remember depositing the
checks. Id. at 115–16. But during the investigation, the bookkeeper
had signed a prepared statement, which was introduced at trial as
her “past recollection recorded” pursuant to the Federal Rules of
Evidence. Id. at 115. A single sentence in that statement recited that
Orrico had told the bookkeeper to endorse the checks. Id. at 115–16.
¶48 Another witness testified that he had deposited a check into
the account, and that Orrico was at the bank at the time the witness
deposited the check, but he could not remember if Orrico had
accompanied him there. Id. at 116. He testified he did not remember
who told him to deposit the check. Id. The government tried to
impeach his lack of memory with his prior testimony before a grand
jury that Orrico had told him to endorse the check. Id.¶49 In other words, by the time the case reached the jury, the
only evidence “of the defendant’s involvement, in any way, in the
deposit of the two checks, [was] contained in one sentence of [the
bookkeeper’s] statement.” Id. at 115–16.
¶50 The Sixth Circuit addressed the sufficiency of the
evidence—specifically, the admissibility of the bookkeeper’s signed
statement and the witness’s prior testimony. Id. at 116. The court
noted that “the statements were offered as substitutes for the
testimony which presumably would have been provided if the
witness had been able to remember the events.” Id. at 117. In the end,
the court noted that the defendant “was faced with a Government
witness who had given wavering, somewhat inconsistent versions of
his story in the past and who now professed to remember nothing,
so the truth of the matter could be pursued no further.” Id. The court
was concerned that the case focused “on the fact that the central
element of the crime with which the defendant was charged was
established entirely through the use of out-of-court statements, made
12
Cite as: 2020 UT 65Opinion of the Court
at a time when the defendant had no opportunity to cross-examine
the witnesses as to the accuracy of their accusations.” Id.¶51 In the course of reversing the conviction, the Sixth Circuit
observed, “It is doubtful, however, that in any but the most unusual
case, a prior inconsistent statement alone will suffice to support a
conviction since it is unlikely that a reasonable juror could be
convinced beyond a reasonable doubt by such evidence alone.” Id. at
118 (emphases added). 8
¶52 The Webb court took that dicta from Orrico and converted it
into the statement that “[t]he law is that a single uncorroborated
hearsay statement is not substantial evidence and not sufficient to
support a verdict.” Webb, 779 P.2d at 1115. Needless to say, we
overstated Orrico a bit. We took an observation about the difficulty
of proving a case solely with a prior out-of-court statement and
declared it to be “the law.” 9
_____________________________________________________________
8 It appears the Orrico court may have been sensitive to the fact
that when Federal Rule of Evidence 801(d)(1)(A) was amended in the
1970s, some were “quick to observe that [use of a prior inconsistent
statement as substantive] evidence would likely be insufficient to
support a conviction alone.” United States v. Bahe, 40 F. Supp. 2d
1302, 1309 (D.N.M. 1998).
9 It is worth noting that the child’s statement at issue in Webb was
admitted under a now-repealed section of the Utah Criminal Code
and that it would not be admissible under our current Utah Rule of
Evidence 801(d). See Webb, 779 P.2d at 1108–09 (Zimmerman, J.,
writing separately). Admission under the current rule is premised on
the declarant’s availability for cross-examination. See UTAH R. EVID.
801(d)(1)(A) (providing that a statement is not hearsay if “the
declarant testifies and is subject to cross-examination about a prior
statement, and the statement[] . . . is inconsistent with the declarant’s
testimony”). The Webb majority noted that because of the child’s age,
“the child cannot be cross-examined on that statement or anything
else related to the alleged crime.” Webb, 779 P.2d at 1115.
Nor would the statement be admissible under Utah Rule of
Criminal Procedure 15.5 because that provision requires, among
other things, that the statement be recorded. See UTAH R. CRIM. P.
15.5(a) (outlining the requirements to admit the previously recorded
statement of a child under the age of fourteen concerning sexual or
physical abuse).
13
STATE v. STRICKLAN
Opinion of the Court
¶53 Shortly after issuing Webb, we were presented with another
sexual abuse case where a conviction hung on an out-of-court
statement. See Ramsey, 782 P.2d at 484. A jury convicted Ramsey of
two counts of sexual abuse of a child. Id. at 482. For the first count,
the State accused Ramsey of causing his son to lie on top of his
daughter and put his penis in the girl’s vagina as Ramsey watched.
Id. The State introduced evidence from a social worker who testified
that Ramsey’s son told him that Ramsey caused the son to get on top
of Ramsey’s daughter and engage in intercourse. Id. at 482–83.
¶54 At trial, the son testified that he had never said that to the
social worker. Id. The son also denied that he had ever had sexual
contact with the girl. Id.
¶55 The plurality opinion noted that “the boy’s alleged
out-of-court statement to [the social worker] is the only evidence that
supports the conviction” on the charge that the defendant had
caused the boy to sexually abuse the girl. Id. at 483 (emphasis
added). The plurality addressed the question of whether Ramsey’s
conviction on that charge could be supported solely on the boy’s
unsworn out-of-court statement:
[W]hen [out-of-court statements are] the only source of
support for the central allegations of the charge,
especially when the statements barely, if at all, meet the
minimal requirements of admissibility, we do not
believe that a substantial factual basis as to each
element of the crime providing support for a
conclusion of guilt beyond reasonable doubt has been
offered by the Government.
Id. at 484 (alterations in original) (quoting Orrico, 599 F.2d at 118).
The plurality then stated that “the single out-of-court statement
attributed to the boy by [the social worker] was insufficient to
support [Ramsey’s] conviction” on the charge that Ramsey had
caused his son to sexually abuse his daughter. Id. at 484. And we
reversed. Id. at 486.
¶56 We applied the Webb/Ramsey language in State v. Span, 819
P.2d 329 (Utah 1991). In Span, the defendant appealed his conviction
for aggravated arson arising out of a suspicious fire that consumed
his former girlfriend’s house. Id. at 330. The State filed charges based
upon a witness who told a fire investigator that Span had said “I
flamed Barbara’s apartment.” Id. at 333 n.2. At trial, however, that
witness testified “that to the best of her recollection [the defendant’s]
statement was in fact, ‘Barbara’s apartment is in flames.’” Id. The
14
Cite as: 2020 UT 65Opinion of the Court
witness further denied the accuracy of the statement made to the fire
investigators about Span admitting to “flaming” the apartment. Id.¶57 In the course of our analysis, we characterized Ramsey as
standing for the proposition that “an out-of-court statement which is
denied at trial by the declarant is insufficient by itself to sustain a
conviction.” Id. (quoting Ramsey, 782 P.2d at 484) (emphasis added).
But we held Ramsey did not apply because the State had introduced
other evidence of Span’s guilt. Id. at 332–33. For example, Span was
in the vicinity of the fire when it started and had vandalized his ex’s
car in the aftermath of their breakup. Id.
¶58 A couple of years later, we again applied Ramsey. See State v.
Seale, 853 P.2d 862 (Utah 1993). In Seale, the defendant appealed his
convictions for rape and aggravated sexual abuse of a child. Id. at
865. At trial, one of his victims answered “I don’t know” or “I don’t
remember” to every question about whether Seale had touched her
or if she had told anyone that he had touched her. Id. at 866. After
her testimony, the State played the victim’s videotaped interview in
which she detailed four instances when Seale had abused her. Id. at
867.
¶59 We concluded that the videotaped interview was sufficient
evidence to sustain Seale’s conviction. Id. at 876. We distinguished
Seale from Ramsey by reasoning that the victim did not deny she
made the statement nor that the sexual abuse occurred. Id. We
ultimately concluded that the “jury was fully entitled to weigh the
credibility” of the videotaped interview, the victim’s testimony on
the stand, and the defendant’s contradictory testimony, and decide
which version of the victim’s story to believe. Id. We noted that the
jury heard testimony that the victim’s mother had pressured the
victim to change her story and that the jurors could infer that her
lack of memory stemmed from that maternal coaxing. Id.
¶60 Upon review of our case law, a pattern emerges. Although
we speak of Webb and Ramsey establishing a “rule” that a single
uncorroborated, out-of-court statement cannot sustain a conviction,
it is a rule that does very little analytical work. In all of the cases
Stricklan cites, we do what we always do when a defendant seeks to
set aside her conviction arguing insufficient evidence: we review all
of the evidence before the jury to see if it dispels reasonable doubt of
the defendant’s guilt. In other words, the Webb/Ramsey rule is more
of a Webb/Ramsey truism; if the evidence before a jury centers on the
out-of-court statement of an 18-month-old child, that will very likely
be insufficient to eliminate reasonable doubt of the defendant’s guilt.
But, where the out-of-court statement is accompanied by additional
15
STATE v. STRICKLAN
Opinion of the Court
persuasive evidence, like the defendant’s motive and presence near
the scene of the crime in Span or the victim’s motive to change her
testimony in Seale, sufficient evidence may exist to uphold the
conviction. See Span, 819 P.2d at 333; Seale 853 P.2d at 876.
¶61 We can take some comfort in the fact that we did not march
down this road unaccompanied. Other states adopted a similar per se
rule that out-of-court statements, on their own, are insufficient to
support a conviction. See, e.g., Baugh v. State, 961 So. 2d 198, 204 (Fla.
2007) (“As we held in Green and reaffirmed in Beber, ‘a prior
inconsistent statement standing alone is insufficient as a matter of
law to prove guilt beyond a reasonable doubt.’” (citations omitted));
State v. Giant, 37 P.3d 49, 58 (Mont. 2001) (“Rather, in order to create
a clear, bright-line rule for trial courts and practitioners, we reaffirm
our holdings in White Water and in Gommenginger that require prior
inconsistent statements admitted as substantive evidence of guilt be
corroborated in order to sustain a conviction.”), overruled in part on
other grounds by State v. Swann, 160 P.3d 511 (Mont. 2007); see also
Brower v. State, 728 P.2d 645, 648 (Alaska Ct. App. 1986) (finding the
reasoning of Orrico persuasive and reversing a conviction because
inadequately corroborated retracted grand jury testimony was
insufficient to sustain the conviction).
¶62 But that is not a consensus position. A number of courts
have been hesitant to adopt such a broad rule and have found prior
out-of-court-statements to be sufficient evidence to support a
conviction without requiring corroborating evidence, “so long as a
witness who makes a prior statement testifies at trial and is subject to
cross examination, thereby enabling the finder-of-fact to both hear
the witness’s explanation for making the prior statement” and weigh
the credibility of the “in-court recantation.” Commonwealth v. Brown,
52 A.3d 1139, 1167 (Pa. 2012). When the recanting witness is
available to testify, and the prior statement is otherwise admissible
as substantive evidence, these courts appear to see the question as
one of witness credibility and permit the trier of fact to decide which
version of the story is most credible.
¶63 For example, the California Supreme Court affirmed a
conviction for assault with a firearm based in part on out-of-court
identifications of two witnesses. People v. Cuevas, 906 P.2d 1290, 1304
(Cal. 1995). It overruled prior case law holding that an out-of-court
identification is “in all cases insufficient by itself to sustain a
conviction and must be corroborated by other evidence linking the
defendant to the crime” and concluded that “individually assessing
the circumstances of the out-of-court identification to determine
16
Cite as: 2020 UT 65Opinion of the Court
whether it is sufficient to support a criminal conviction . . . should be
applied to all out-of-court identifications.” Id. at 1302.
¶64 In Cuevas, two witnesses described and identified the
gunman the night of the shooting. Id. at 1293. Yet, at trial, one
witness denied having seen the shooter or describing the gunman to
the police. Id. at 1294. And the other witness recanted his
identification of the shooter and claimed he had falsely identified the
defendant as the shooter as payback for gang related incidents. Id.
Both witnesses testified they believed it was “wrong to ‘rat off’ a
member of a rival gang.” Id.
¶65 Police officers testified that the witnesses had given physical
descriptions of the shooter and/or had previous contacts with the
defendant. Id. Another witness testified that as the shooter
approached, one of the recanting witnesses exclaimed, “I know that
guy. He’s from [a rival gang].” Id. Evidence was presented that the
defendant was a member of the rival gang and that the defendant
met the physical descriptions provided by the recanting witnesses.
Id.
¶66 Cuevas moved for a judgment of acquittal, arguing there
was insufficient evidence to convict him, but the trial court denied
the motion. Id. The California Supreme Court affirmed the
conviction and concluded “that the availability of the identifying
witness for cross-examination, the opportunity of the defense to
present other evidence questioning the reliability of the out-of-court
identification and to request appropriate jury instructions, and the
requirement that substantial evidence support the conviction” were
adequate protections against “the unjust conviction of a defendant
solely on the basis of an unreliable out-of-court identification.” Id. at
1304; cf. Watkins v. State, 446 N.E.2d 949, 961 (Ind. 1983) (rejecting the
argument that there was insufficient evidence to convict where the
witness gave conflicting accounts of defendant’s involvement in a
shooting and the witness was available for cross-examination);
Brown, 52 A.3d at 1171 (holding that “criminal convictions which rest
only on prior inconsistent statements of witnesses who testify at trial
do not constitute a deprivation of a defendant’s right to due process
of law, as long as the prior inconsistent statements, taken as a whole,
establish every element of the offense charged beyond a reasonable
doubt, and the finder-of-fact could reasonably have relied upon
them in arriving at its decision”).
¶67 The common theme among these cases is that an
out-of-court statement can be sufficient evidence to dispel reasonable
doubt if the witness can be questioned at trial regarding the change
17
STATE v. STRICKLAN
Opinion of the Court
in the witness’s story, and the prior statement, if believed, establishes
the elements of the charged crime. These courts concluded that when
presented with a witness (or witnesses) who gives conflicting
versions of events in question, a jury is well-positioned to decide
which version best recounts what happened. Indeed, “it is the
rightful role of the finder-of-fact to resolve the discrepancy between
the out-of-court statement and the recantation.” Brown, 52 A.3d at
1167; see also Di Carlo v. United States, 6 F.2d 364, 368 (2d Cir. 1925)
(“The possibility that the jury may accept as the truth the earlier
statements in preference to those made upon the stand is indeed real,
but we find no difficulty in it. If, from all that the jury see of the
witness, they conclude that what he says now is not the truth, but
what he said before, they are none the less deciding from what they
see and hear of that person and in court.”).
¶68 We have not been asked to overrule Webb and Ramsey and
do not reconsider them here. But we note that this case offers a solid
example of why we might be tempted to scrub the rule from our
jurisprudence. The parties spent a lot of time arguing about whether
Stricklan’s case resembled Webb and Ramsey, and that could have
pulled our focus from the question we ultimately need to answer:
did the State introduce sufficient evidence of Stricklan’s guilt? That
having been said, even assuming a vibrant Webb/Ramsey rule, it
would only come into play if E.D.’s out-of-court statement was the
only evidence of Stricklan’s guilt. As we discuss below, it was not.
II. We Are Not Required to Independently
Reweigh the Reliability of Prior Inconsistent
Statements When We Assess the
Sufficiency of the Evidence
¶69 The dissent reads Webb and Ramsey to stand for the
proposition that “in reviewing the sufficiency of the evidence, an
appellate court should assess the reliability of hearsay, even where
the hearsay has been admitted into evidence through a judicially or
legislatively created exception.” 10 Infra ¶ 139. It reasons that Webb,
_____________________________________________________________
10 Utah Rule of Evidence 801(d)(1) states that a declarant’s prior
statement is deemed to not be hearsay if “[t]he declarant testifies and
is subject to cross-examination about a prior statement” and, among
other things, the statement “is inconsistent with the declarant’s
testimony.” E.D.’s prior inconsistent statement is not a hearsay
statement within the meaning of our rules. See UTAH R. EVID.
801(d)(1).
18
Cite as: 2020 UT 65Opinion of the Court
Ramsey, and Orrico say that “we may weigh the reliability and
probative value of hearsay in assessing the sufficiency of the
evidence supporting a guilty verdict.” Infra ¶ 150.
¶70 The dissent claims we “ignore” this principle and are
“unwilling[] to second-guess what [we] deem[] was a ‘credibility’
determination the jury made . . . .” Infra ¶ 151. The dissent claims
that we suggest we are “unable to weigh the reliability and the
probative value of hearsay evidence on appeal,” and therefore our
reading is “inconsistent with the reasoning in Webb and Ramsey (and
Orrico).” Infra ¶ 151.
¶71 We do not read the cases this way nor do we suggest that
we can never assess the credibility of evidence before the jury. 11 But
_____________________________________________________________
11 We recognize that, ordinarily, we “may not reassess credibility
or reweigh the evidence, but must resolve conflicts in the evidence in
favor of the jury verdict.” State v. Workman, 852 P.2d 981, 984 (Utah
1993). But we have noted that in some circumstances, when
testimony is “inherently improbable,” the “reviewing court may
evaluate whether the evidence is so inconclusive or inherently
improbable that it could not support a finding of guilt beyond a
reasonable doubt.” Id.; see also State v. Robbins, 2009 UT 23, ¶¶ 16–19,
210 P.3d 288 (discussing that courts may reconsider witness
testimony that is “inherently improbable”).
If we decided to carve out an exception to the general rule along
the lines that the dissent does here—that is, an exception that would
require us to conduct our own independent assessment of the
reliability of properly admitted prior inconsistent statements as part
of a sufficiency-of-the-evidence review—this would be a departure
from our normal practice of affording deference to the trier of fact’s
credibility determinations.
We should also recognize that this would appear to be an
exception that we have not previously recognized. The dissent has
not offered anything to support a conclusion that we have actually
ever considered and adopted a rule allowing us to replace the jury’s
view of the reliability of a prior inconsistent statement with our own
when evaluating the sufficiency of the evidence. The dissent cites a
single justice’s concurrence from a 1916 Utah case for the proposition
that “appellate courts have nevertheless considered hearsay’s
‘unreliable character . . . in determining the weight that should be
given it.’” Infra ¶ 140 (alteration in original) (quoting Johnson v.
Geddes, 161 P. 910, 917–18 (Utah 1916) (McCarty, J., concurring)). This
(continued ...)
19
STATE v. STRICKLAN
Opinion of the Court
we, unlike the dissent, fall back on the unremarkable proposition
that the trier of fact is in a superior position to assess credibility. See
infra ¶ 113. Despite the dissent’s protests, we continue to push back
against the suggestion that the rule Webb announced is very helpful
to an appellate court. And, frankly, the dissent must have some of
the same concerns with Webb because it reworks Webb’s holding.
¶72 The dissent reads Webb to make “clear that even where a
hearsay statement is deemed admissible through a
legally-recognized hearsay exception, we may nevertheless assess
the reliability and evidentiary weight of the statement as part of our
sufficiency analysis.” Infra ¶ 148. Even if that were what Webb does,
that is not what Webb says. Webb unequivocally states that the “law is
that a single uncorroborated hearsay statement is not substantial
evidence and not sufficient to support a verdict.” State v. Webb, 779
P.2d 1108, 1115 (Utah 1989).
¶73 The dissent also disagrees with our statement that any
“rule” Webb and Ramsey may have established only comes into play
when there is no other evidence beyond the hearsay statement
introduced at trial. Infra ¶¶ 152, 158. We say that because that is
what Webb and Ramsey say. Webb, 779 P.2d at 1115 (discussing that
Webb’s “conviction stands almost entirely on one out-of-court
declaration” and that “a single uncorroborated hearsay statement is
not substantial evidence and not sufficient to support a verdict”
(emphases added)); State v. Ramsey, 782 P.2d 480, 483–84 (Utah 1989)
(stating that Ramsey’s conviction was supported “solely by the boy’s
unsworn out-of-court statement” and “a conviction that is based
entirely on a single, uncorroborated hearsay out-of-court statement
that is denied by the declarant in court under oath cannot stand”
(emphases added)). We also say that because that is what this court
has said Webb and Ramsey say. See, e.g., State v. Span, 819 P.2d 329,
333 n.2 (Utah 1991) (reasoning that Ramsey’s holding “that ‘an
out-of-court statement which is denied at trial by the declarant is
insufficient by itself to sustain a conviction’” was not at play because
of additional evidence that placed the defendant near the crime
(emphasis added)).
¶74 The dissent argues that the Webb/Ramsey rule must be
broader because those cases examined more evidence than just a
_____________________________________________________________
is not controlling, and we are not persuaded that we have ever
articulated the rule the dissent wants us to apply.
20
Cite as: 2020 UT 65Opinion of the Court
single out-of-court uncorroborated statement. Infra ¶ 152. It also
contends that a better reading of Webb, Ramsey, and Orrico is that
“where a conviction is based entirely or ‘almost entirely’ on hearsay
evidence, we should determine whether other evidence, which
‘differs from’ the hearsay, ‘strengthens or confirms’ what the hearsay
evidence shows.” Infra ¶ 164.
¶75 If that is what Webb and Ramsey actually said, we might
agree with the dissent about their application to the evidence the
jury heard. But that is not what those cases say. After reviewing the
dissent, our problem with Webb and Ramsey remains the same: those
cases pronounced a rule and created a dynamic where parties, like
those here, are incentivized to focus their fight on whether the
Webb/Ramsey rule applies. And that fight can occur to the detriment
of reasoned analysis of all of the evidence in front of the jury.
¶76 To further support its determination that we should review
the reliability of the out-of-court statement, the dissent points to two
cases from other jurisdictions. First, it cites an opinion of the
Massachusetts Supreme Court, Care & Protection of Rebecca, 643
N.E.2d 26 (Mass. 1994). Infra ¶ 140 n.32. The dissent says this case
“explain[s] that under ‘traditional principles governing the use of
hearsay evidence’ courts should ‘assess the reliability of such
evidence in connection with deciding how much weight to accord
it.’” Infra ¶ 140 n.32. But the Massachusetts Supreme Court was
interpreting a specific Massachusetts statute regarding the
admissibility of hearsay statements made by young victims of sexual
abuse. See Care & Prot. of Rebecca, 643 N.E.2d at 33 (citing MASS. GEN.
LAWS ch. 233, § 83). 12
¶77 The Massachusetts court held that a person seeking to admit
a statement under the statute “may offer the evidence, but implied in
the statute is a requirement that a judge assess the reliability of such
evidence in connection with deciding how much weight to accord to
it.” Id. In other words, the Massachusetts court inferred a reliability
requirement into the statute. And it justified this extra-textual
exercise because the requirement would strike “a permissible
balance between the competing interests involved in a care and
protection case.” Id. This case does not establish the proposition, as
the dissent suggests, that appellate courts are required to review the
_____________________________________________________________
12 Stricklan has not appealed the admission of E.D.’s prior
inconsistent statements.
21
STATE v. STRICKLAN
Opinion of the Court
reliability of prior inconsistent statements when reviewing the
sufficiency of the evidence. See infra ¶ 139; cf. infra ¶ 140, n.32.
¶78 The dissent also cites to the Montana Supreme Court’s
decision in State v. Giant, 37 P.3d 49 (Mont. 2001), overruled in part on
other grounds by State v. Swann, 160 P.3d 511 (Mont. 2007), to support
the assertion that “sufficiency of [the] evidence is completely
dependent on its reliability.” Infra ¶ 145 (quoting Giant, 37 P.3d at
56). This overstates Giant’s holding. The Giant court reasoned that
the “issue of sufficiency of the evidence when a conviction is based
on a prior inconsistent statement alone demonstrates that sufficiency
is dependent on the reliability of that statement.” Giant, 37 P.3d at 58(emphasis added). The Giant court did opine, as the dissent observes,
that it must gauge the reliability of prior inconsistent statements by
assessing whether the prosecution had introduced evidence that
corroborated the prior inconsistent statement. See id. at 58–59. And it
noted that other courts, and other courts’ rules of evidence, dealt
with the reliability concerns in other ways. See id. at 53–58. For
example, New Jersey has developed a fifteen-factor test to assess
whether a court should admit a prior inconsistent statement as
substantive evidence. 13 See id. at 57 (citing State v. Mancine, 590 A.2d
1107, 1115 (N.J. 1991)).
_____________________________________________________________
13 Those 15 factors are:
(1) the declarant’s connection to and interest in the
matter reported in the out-of-court statement, (2) the
person or persons to whom the statement was given,
(3) the place and occasion for giving the statement,
(4) whether the declarant was then in custody or
otherwise the target of investigation, (5) the physical
and mental condition of the declarant at the time,
(6) the presence or absence of other persons,
(7) whether the declarant incriminated himself or
sought to exculpate himself by his statement, (8) the
extent to which the writing is in the declarant’s hand,
(9) the presence or absence, and the nature of, any
interrogation, (10) whether the offered sound recording
or writing contains the entirety, or only a portion of the
summary, of the communication, (11) the presence or
absence of any motive to fabricate, (12) the presence or
absence of any express or implicit pressures[,]
inducement[,] or coercion for making the statement,
(continued ...)
22
Cite as: 2020 UT 65Opinion of the Court
¶79 The Giant court ultimately concluded that the only
corroborating evidence the prosecution had presented was evidence
that the defendant had fled the crime scene. Id. at 60. Because
Montana considers evidence of flight insufficient to support a
conviction by itself, the court concluded that evidence of flight was
also insufficient evidence to corroborate the prior inconsistent
statement. See id.
¶80 The Giant court reached that conclusion over a dissent that
posited that the majority’s beef was really with the Montana Rule of
Evidence that characterizes prior inconsistent statements as
non-hearsay and permits them to be admitted as direct, substantive
evidence. See id. at 60–62 (Gray, C.J., dissenting). And the two
dissenting justices would have sustained the conviction because of
the “extent and timing” of the victim’s prior statements. Id. at 62. The
dissenting justices observed that “almost immediately after” the
assault, the victim told the physician examining her that the
defendant had assaulted her. Id. The next day, the victim told other
doctors that the defendant assaulted her and she repeated that
assertion to police. Id. The dissent reasoned that “statements made
nearer in time to the incident could be considered by the jury to be
more accurate and free from outside influences than those made
later.” Id.
¶81 The Giant dissent also examined the quality of the flight
evidence, noting that the defendant had cleaned out all of his bank
accounts and moved his minor children into a hotel before he
allegedly assaulted the victim. Id. at 61. The defendant also
abandoned the truck he had used to flee. Id. The dissent concluded
this was sufficient evidence to uphold the conviction, even after the
victim recanted at trial her statements that the defendant had
assaulted her. See id. at 62 (“It is my view that, because they were
corroborated by substantial flight evidence, the jury was entitled to
weigh [the victim’s] prior statements, together with her trial
testimony and credibility, and find beyond a reasonable doubt that
Giant was the assailant.”). In instances where the declarant is
_____________________________________________________________
(13) whether the anticipated use of the statement was
apparent or made known to the declarant, (14) the
inherent believability or lack of believability of the
statement, and (15) the presence or absence of
corroborating evidence.
State v. Gross, 577 A.2d 806, 810 (N.J. 1990) (citation omitted).
23
STATE v. STRICKLAN
Opinion of the Court
available for cross-examination about the change in the statements,
the Giant dissent’s approach resonates with us more than the lead
opinion.
¶82 All that having been said, neither Giant nor its dissent, nor
Care & Protection of Rebecca, bind our decision here. Nor are they
particularly helpful in illuminating the question at hand: what do
Webb and Ramsey require of a court performing a sufficiency of the
evidence review? Even taking the cases the dissent here cites into
consideration, we return to our view that Webb and Ramsey do not
materially alter the task we perform when a party challenges the
sufficiency of the evidence underlying a conviction. We look at all
the evidence before the jury to determine “if, when viewed in the
light most favorable to the State, ‘some evidence exists from which a
reasonable jury could find that the elements of the crime had been
proven beyond a reasonable doubt.’” State v. Gonzalez, 2015 UT 10,
¶ 27, 345 P.3d 1168 (citation omitted). And while we may, in this
case, weigh the evidence differently than the dissent, we still look to
determine if “evidence existed from which a reasonable jury could
find beyond a reasonable doubt” that the defendant committed the
crime. Id.III. The State Placed Sufficient Evidence
Before the Jury that Stricklan Touched E.D.
¶83 Because Webb and Ramsey purport to apply when the only
evidence of guilt consists solely of an uncorroborated out-of-court
statement, Stricklan argues the State did not present evidence to
corroborate E.D.’s out-of-court statement that he inappropriately
touched her. Stricklan’s framing of the question has the potential to
distract from the relevant inquiry. As we have just discussed, when
reviewing a challenge to the sufficiency of the evidence, we look at
all of the properly admitted evidence before the jury to ensure that
the State introduced enough evidence to permit the jury to find guilt
beyond a reasonable doubt. E.D.’s prior inconsistent statement was
not the only evidence of Stricklan’s guilt before the jury.
¶84 Stricklan argues the “totality of the evidence” against him
consists of: “(i) the timing of Child’s reports; (ii) Child’s mother
confronting Mr. Stricklan; (iii) an officer testifying that he heard Mr.
Stricklan tell his parents on the phone that he needed a ride because
he acted inappropriately; (iv) Mr. Stricklan acknowledging that
Child had never lied and he did not think Child was making it up;
(v) Child’s ‘vague and nonsensical testimony’ at trial; and
(vi) Child’s testimony that she and her mother were sad and missed
Mr. Stricklan.” He argues none of this evidence corroborates E.D.’s
24
Cite as: 2020 UT 65Opinion of the Court
initial story and only shows that E.D. made an out-of-court
statement and people reacted to it. 14 We disagree with the assertion
that this constitutes insufficient evidence to support a conviction.
¶85 The State introduced evidence which, if believed, could
permit the jury to conclude beyond a reasonable doubt that Stricklan
touched E.D. First, in response to questioning from the State, the jury
heard E.D. confirm that when the police arrived on the morning
following the incident, she told Detective Holdaway that Stricklan
had touched her on the “boobs and the bottom.” It also heard E.D.
testify that she went to the CJC with Mother and again told
Holdaway that Stricklan had touched her “right at the bottom” and
on her “back and chest area.” E.D. clarified that by “chest area” she
meant her “boobs.” 15 It also heard Officer Dallof confirm that he
overheard Holdaway interviewing Stricklan and that Stricklan “said
that he was watching TV when his wife had come out and told him
that her daughter said that he touched her.”
¶86 E.D. testified that Mother asked Stricklan about what he was
doing in E.D.’s room. Officer Hulse testified that when she arrived at
_____________________________________________________________
14 The dissent echoes this, saying that “the evidence supporting
Mr. Stricklan’s conviction amounts to nothing more than an
out-of-court statement, . . . and witness testimony regarding how
people reacted to this out-of-court statement before it was recanted.”
Infra ¶ 171. Even if this were true, it is not immediately apparent
why we would discount Stricklan’s statement to the police crediting
the allegations E.D. made against him just because that statement
was a “reaction” to those allegations. Indeed, an unqualified
confession could also be characterized as a reaction to an allegation.
15 While E.D.’s inability (or perhaps unwillingness) to recall
whether she had reported that the touching occurred over or under
her clothes may be something to consider when assessing the
sufficiency of the evidence, it does not have conclusive legal
significance. “[A]ny touching, even if accomplished through
clothing, is sufficient to constitute the relevant element of the offense
[for] . . . sexual abuse of a child or aggravated sexual abuse of a
child” under Utah Code section 76-5-404.1. UTAH CODE § 76-5-
407(3)(b); see also State v. Escamilla-Hernandez, 2008 UT App 419, ¶ 9
n.3, 198 P.3d 997 (“We note that in cases where the victim is under
fourteen years of age, a touching over clothing satisfies the statute.”
(citations omitted)).
25
STATE v. STRICKLAN
Opinion of the Court
the residence, Mother appeared to have been crying. E.D. also
testified that Mother was crying when the police arrived at the
house. And Dallof’s testimony indicated Mother told Stricklan that
E.D. said he had touched her. On this evidence, a reasonable jury
could conclude that Mother’s apparent belief that Stricklan was
capable of, and had engaged in, what E.D. alleged lent credence to
E.D.’s initial report.
¶87 Dallof testified that Stricklan originally told Holdaway that
he had entered E.D.’s room to turn off the light and television.
Supra ¶ 7. E.D. testified that she had awakened during the night
because her television was off, and that when she woke up, she saw
Stricklan on the floor and went to tell Mother. Supra ¶ 13. Thus, the
jury heard testimony that Stricklan had entered E.D.’s bedroom
sometime after she went to bed, but before police arrived at
approximately 5:00 a.m.
¶88 Dallof also testified that he heard Stricklan tell someone on
the phone that he acted “inappropriately.” Dallof took a note when
he heard that statement so that he could “transfer that verbatim into
[his] report.”
¶89 During Detective Timpson’s testimony, the State played a
portion of Holdaway’s interview with Stricklan a few days after the
incident. The jury heard Stricklan, in response to police questioning,
indicate that he had not known E.D. to lie. The jury also heard
Stricklan tell Holdaway that he did not think that E.D. had made up
the story of him touching her. 16
_____________________________________________________________
16 The dissent challenges the persuasive value of this testimony
because the jury would have been “well-aware” that by trial
Stricklan “denied committing the crime charged” and would have
heard his counsel “mount a vigorous defense against this charge.”
Infra ¶ 172 n.87. But this misses the point. The jury heard the
defendant tell the police investigating allegations that he had
improperly touched a ten-year-old child that he did not think that
she was making up those very allegations. Even if he later denied the
truth of E.D.’s statements to the police, the jury could conclude that
telling the police that he did not think the victim was fabricating her
report of abuse is not the best way to proclaim his innocence and is,
in fact, rather damning evidence of his guilt. And the jury, who
watched the recorded exchange between Stricklan and Holdaway,
was free to not credit Stricklan’s counsel’s argument that Stricklan
(continued ...)
26
Cite as: 2020 UT 65Opinion of the Court
¶90 The State also presented evidence that could suggest a
motive for the change in E.D.’s story.17 E.D. testified what life had
been like after Stricklan left the house. E.D. testified that she, Mother,
and her grandparents all missed Stricklan. E.D. also testified that
Mother cried “a whole bunch of times” when Stricklan left. E.D.
stated she sees Stricklan “as [her] own father, [she] treats him as
[her] own father.” Like in Seale, this was evidence from which the
jury could infer E.D. changed her story because she missed Stricklan
or did not want her mother to be sad because he was gone.
¶91 Stricklan disagrees that this is sufficient evidence to support
a conviction and compares his case to a decision of a divided Florida
Supreme Court. See Baugh v. State, 961 So. 2d 198 (Fla. 2007). A
Florida court convicted Baugh of capital sexual battery of his
girlfriend’s daughter. Id. at 201. The night of the incident, the girl
told her mother and a detective that Baugh forced her to fellate him.
Id. at 200–01. At trial, the girl testified that her original story to her
mother and the detective was a “fib which she made up to get Baugh
in a little, but not that much trouble because sometimes he made her
mad.” Id. at 201 (citation omitted) (internal quotation marks
omitted). The girl also explained that she maintained this story
_____________________________________________________________
was just “confused” when he told the detective that he did not think
that E.D. had made up her allegations.
17 We have recognized that a motive for a witness to change
testimony can be evidence to support a conviction. State v. Seale, 853
P.2d 862, 876 (Utah 1993). In Seale, the child responded, “I don’t
remember,” to each question about whether the defendant had
touched her. Id. at 866. The child’s mother testified she was afraid of
losing custody of her daughter. Id. She denied encouraging her
daughter “to forget things in an effort to retain custody.” Id. (internal
quotation marks omitted). However, the mother’s sister testified that
the mother had called her the night before the trial in an attempt to
get her “not to say anything in court.” Id. at 867. We determined it
would have been reasonable for the jury to conclude that the mother
also asked her daughter not to say anything, which prompted the
daughter to respond “I don’t know” or “I don’t remember” when
asked about the abuse. Id. at 867, 876. There was evidence “from
which the jury could have reasonably inferred” that the child’s
memory loss was “in response to her mother’s pressure to keep the
incidents quiet.” Id. at 876.
27
STATE v. STRICKLAN
Opinion of the Court
because she was “afraid of what her mother might do if she found
out that [the girl] had lied.” Id.
¶92 The prosecution introduced evidence from the detective, the
child protection team nurse, and the girl’s mother about the girl’s
prior statements. Id. The prosecution also introduced testimony from
an inmate imprisoned with Baugh who claimed he heard Baugh
telling visitors they had to get the girl to recant her story. Id. Another
family friend testified that the girl told her the abuse really
happened, but the girl’s mother wanted her to change her story. Id.
There was no physical or direct evidence to support the girl’s
original claim of abuse. Id. Baugh appealed, claiming the girl’s
“out-of-court statements were insufficient to sustain his conviction.”
Id.
¶93 In a 4-3 decision, the Florida Supreme Court noted that the
“only direct evidence” was the girl’s “out-of-court hearsay
statements” which she “completely recanted” at trial. Id. at 203. It
then examined the circumstantial corroborating evidence. Id. It noted
that “recanted statements can sustain a sexual battery conviction
‘when other proper corroborating evidence is admitted.’” Id. at 204
(citation omitted). The court quoted Black’s Law Dictionary that
corroborating evidence is “[e]vidence that differs from but
strengthens or confirms what other evidence shows,’ especially ‘that
which needs support.’” Id.
¶94 The majority determined that the “other evidence”
presented during trial “did not actually ‘corroborate’ the recanted
out-of-court statements” and reversed the conviction. Id. at 202, 204.
It concluded that “[w]here the evidence creates only a strong
suspicion of guilt or simply a probability of guilt, the evidence is
insufficient to sustain a conviction.” Id. at 205. And it also stated that
“evidence is insufficient to support a conviction when it requires
pyramiding of assumptions or impermissibly stacked inferences.” Id.
¶95 The dissent in Baugh was concerned that the majority
opinion “nullifie[d] a jury’s guilty verdict based essentially on
credibility choices.” Id. at 205 (Cantero, J., dissenting). Three
members of the Florida high court would have affirmed the
conviction because “the majority takes this close case away from the
jury, and usurps the jury’s factfinding function in making credibility
determinations.” Id. at 211.
¶96 The dissent would have found the “sum total of the
evidence” in the case sufficient to let it go to the jury. Id. at 207. It
reasoned corroborating evidence should be viewed cumulatively to
28
Cite as: 2020 UT 65Opinion of the Court
determine if it was sufficient to convict. Id. The dissent noted this
was “a close case” but opined that the child’s “shocking description
of the incident established elements of the offense; and though it was
insufficient by itself to convict the defendant, the other evidence
introduced clearly corroborated the child’s story.” Id. at 210. The
dissent concluded that “[c]ombined with her statements, the
evidence was sufficient to submit the case to the jury, whose job it
was to sort out the conflicting stories and the credibility issues”
regarding the conflicting statements. Id.¶97 The dissent was also concerned that “by deeming the
[recanted statement] in this case insufficient, the majority will make
it virtually impossible to convict sexual offenders whenever the
victim recants and no physical evidence is available.” Id. The dissent
concluded
[T]he very purpose of juries is to distinguish between
the true and the false, between the sincere and the
coerced. With no way to view the demeanor of the
witnesses during their testimony, appellate courts are
poorly equipped for that role. In cases such as this,
where corroborating evidence strongly supports the
child’s original accusations of sexual abuse and also
points toward a forced recantation, we should leave to
the jury the responsibility for evaluating witness
credibility and arriving at the truth.
Id. at 210–11.
¶98 Stricklan urges this court to see the world the way the Baugh
majority does. Stricklan compares his case to Baugh and contends
that the other evidence presented at trial was not “so powerful as to
eliminate reasonable doubt arising from [E.D.]’s sworn,
cross-examined, in-court testimony that Mr. Stricklan did not touch
her.”
¶99 Much like we do with the divided Montana Supreme Court
in Giant, we find ourselves more moved by the dissent in Baugh. And
we conclude that a reasonable jury could look at all of the evidence
presented to it—including Stricklan’s less-than-convincing denial of
the allegations against him, Stricklan’s statement that he acted
inappropriately, E.D.’s two initial reports of abuse, and E.D.’s less-
than-convincing explanation for why she changed her story at trial—
and decide beyond a reasonable doubt that Stricklan had touched
E.D. inappropriately.
29
STATE v. STRICKLAN
Opinion of the Court
¶100 Ultimately, this came down to a question about whether
the jury believed that E.D. told the truth during her first two reports
of abuse or when she testified at trial. It is the role of the jury to
determine the credibility of evidence and testimony. 18 “The jury is
the exclusive judge of credibility.” UTAH CODE § 78B-1-128(4). “Thus
when conflicting or disputed evidence is presented at a jury trial, the
‘jury serves as the exclusive judge of both the credibility of the
witnesses and the weight to be given particular evidence.’” State v.
Prater, 2017 UT 13, ¶ 31, 392 P.3d 398 (quoting State v. Workman, 852
P.2d 981, 984 (Utah 1993)). The jury was in the best position to hear
and evaluate the evidence at trial. It could weigh the credibility of
E.D.’s reason for recanting, Stricklan’s testimony as to the events of
the night of the incident, and the weight of the other circumstantial
evidence from the events of the night.
¶101 All of this evidence assumes importance to our analysis in
two ways. First, it pulls this case outside the ambit of the
Webb/Ramsey “rule,” which purports to apply when the jury is only
given a single, out-of-court and uncorroborated statement on which
to convict. Second, the totality of the evidence presented here is
enough to permit the jury to believe that E.D.’s initial recitation that
Stricklan had inappropriately touched her was correct. And that her
recantation was motivated not by a desire to set the record straight
but to ameliorate the negative consequences of Stricklan’s absence
from their home.
_____________________________________________________________
18 The dissent states it is “the majority’s view that it cannot make
its own assessment of the evidentiary weight of E.D.’s hearsay
statement.” Infra ¶ 166. This overstates our position. We contend that
the better practice is to recognize that, when an assessment of
credibility turns on observing a witness and her demeanor, we
afford deference to the trier of fact that had the opportunity to assess
the witness’s credibility. But recognizing that we grant deference is
not a declaration that we must always defer. In this business, we
sometimes find that judges and juries have abused the discretion
given them. We can foresee instances where the circumstances
surrounding the recantation of the prior statement and the paucity of
other evidence of the defendant’s guilt would cause us to conclude
that no reasonable jury could credit the prior inconsistent statement
in a way that would dispel reasonable doubt. This is just not that
case here.
30
Cite as: 2020 UT 65Opinion of the Court
¶102 We give a “healthy dose of deference” to jury verdicts.
State v. Nielsen, 2014 UT 10, ¶ 41, 326 P.3d 645; see also Mackin v. State,
2016 UT 47, ¶ 20, 387 P.3d 986 (“We grant substantial deference to a
jury verdict.”); Workman, 2005 UT 66, ¶ 29 (“The standard of review
for a sufficiency claim is highly deferential to a jury verdict.”); see
also Baugh, 961 So. 2d at 205–11 (Cantero, J., dissenting). Under our
deferential standard, enough evidence was before the jury to allow it
to dispel reasonable doubt that Stricklan had inappropriately
touched E.D. See State v. Gonzalez, 2015 UT 10, ¶ 27, 345 P.3d 1168(“[Defendant] must therefore show that, when viewed in the light
most favorable to the State, no evidence existed from which a
reasonable jury could find beyond a reasonable doubt.” (emphasis
added)).
IV. The State Presented
Sufficient Evidence of Intent
¶103 Stricklan also argues that the State did not forward
evidence of “intent to cause substantial emotional or bodily pain to
any individual or with the intent to arouse or gratify the sexual
desire of any individual.” UTAH CODE § 76-5-404.1(2). Stricklan
argues that there was no evidence in front of the jury that could
allow it to conclude that he touched E.D. with the intent to arouse
sexual desire.
¶104 The district court rejected this argument, reasoning that
the State had adduced enough circumstantial evidence of Stricklan’s
intent to meet its burden. Specifically, the district court discussed
“what law enforcement found when they went to the house with the
emotions that were going on, overhearing the statement by the
defendant on the phone, [and] what we learned from the interview
today, among other things” as corroborating evidence. The district
court concluded there was “sufficient evidence presented from
which a jury acting reasonably could convict the defendant and the
State has, in fact, established a prima facie case.” We agree.
¶105 We have stated that “intent can be proven by
circumstantial evidence.” State v. James, 819 P.2d 781, 789 (Utah
1991). “The factfinder, however, is entitled to draw all reasonable
inferences from the facts and from the actions of the defendant.”
State v. Cooley, 603 P.2d 800, 802 (Utah 1979). Additionally, “unless a
confession is made by the defendant concerning intent, or unless the
court is somehow able to open the mind of the defendant to examine
his motivations, intent is of necessity proven by circumstantial
evidence.” James, 819 P.2d at 789.
31
STATE v. STRICKLAN
Opinion of the Court
¶106 “The criminal intent of a party may be inferred from
circumstances such as presence, companionship, and conduct before
and after the offense . . . .” State v. Briggs, 2008 UT 75, ¶ 13, 197 P.3d 628(emphasis added) (citation omitted) (internal quotation marks
omitted). And “[w]hen intent is proven by circumstantial evidence,
we must determine (1) whether the State presented any evidence
that [Defendant] possessed the requisite intent, and (2) whether the
inferences that can be drawn from that evidence have a basis in logic
and reasonable human experience sufficient to prove that
[Defendant] possessed the requisite intent.” State v. Holgate, 2000 UT
74, ¶ 21, 10 P.3d 346 (citation omitted) (internal quotation marks
omitted).
¶107 The court of appeals has had more opportunities than we
have had to opine on what evidence suffices to demonstrate intent to
cause pain or arouse sexual desire. See, e.g., State v. Watkins, 2011 UT
App 96, 250 P.3d 1019, rev’d on other grounds, 2013 UT 28, 309 P.3d
209; State v. Tueller, 2001 UT App 317, 37 P.3d 1180. For example, in
Watkins, the defendant was convicted of aggravated sexual abuse of
a child. 2011 UT App 96, ¶ 1. While staying at a relative’s house,
Watkins drank “a significant amount of alcohol [one] night,” and a
child in the home awoke to find Watkins in her bed and kissing her
on the side of her head. Id. ¶ 3. After the child asked him to stop and
leave, Watkins began “pinching or rubbing her buttocks with his
hand.” Id. (internal quotation marks omitted). Watkins left after the
second time the child told him to leave, but he later returned to give
her a $100 bill and told her not to tell anyone about the money. Id.
The court of appeals found sufficient evidence of intent because
there appeared to be “no legitimate reason” for Watkins to be in the
child’s room at the time of the incident and there was no alternative
explanation for why he kissed the child “wetly on the side of her
head for approximately three minutes” and pinched and rubbed the
child’s buttocks for two minutes. Id. ¶ 18. And giving the child $100
immediately following the incident could be construed to mean that
Watkins knew he had done something wrong. Id.
¶108 In Tueller, the defendant was convicted of sexual abuse of
a child. 2001 UT App 317, ¶ 1. A witness observed Tueller in a men’s
bathroom, “laying on top of . . . a nine-year-old girl with an I.Q. of
60, on the bathroom floor.” Id. ¶ 2. Tueller’s pants were “pulled
down to his buttocks” and the girl’s underwear was “pulled down to
her knees and her legs were kind of open.” Id. (internal quotation
marks omitted). Tueller had one knee between the girl’s legs and his
head was on her chest. Id. The court of appeals found this evidence
sufficient to support intent to “arouse or gratify the sexual desire of
32
Cite as: 2020 UT 65Opinion of the Court
any person” since there was “no conceivable explanation for the
circumstances” where the witness viewed Tueller on top of the girl.
Id.¶ 20; see also In re D.M., 2013 UT App 220, 310 P.3d 741 (finding
circumstantial evidence of intent when the minor dared the victim to
crawl under a futon before pulling down the victim’s pants and
touching the victim’s testicles); State v. Bair, 2012 UT App 106, 275
P.3d 1050 (finding circumstantial evidence of intent in a letter in
which defendant admitted to being addicted to “‘touchy/feely’
aspects of sex, and the abuse [the victim] reported coincide[d] with
this admitted addiction”); State v. Singh, 2011 UT App 396, 267 P.3d
281 (finding circumstantial evidence of intent to include expressions
of love and kissing the victim); State v. Maness, 2010 UT App 370U,
2010 WL 5452078 (finding circumstantial evidence of intent included
entering a massage room early, moving drapes, touching genitalia
during a massage procedure that did not require such touching, and
lingering after concluding the massage); State v. Hall, 946 P.2d 712,
724 (Utah Ct. App. 1997) (finding circumstantial evidence of intent
included pulling down the victim’s shorts and underwear and
stroking her genital area).
¶109 As the court of appeals has observed, intent can
“reasonably be inferred with a basis in logic and human experience.”
State v. Von Niederhausern, 2018 UT App 149, ¶ 20, 427 P.3d 1277(citation omitted) (internal quotation marks omitted) (finding the
defendant’s conduct was “more than just a simple, familial gesture
or a harmless or accidental physical act”). The same analysis and
logic apply in this case. We review the sufficiency of the evidence of
intent to determine whether a reasonable jury could have found this
element was met beyond a reasonable doubt.
¶110 E.D. testified that she originally told officers that Stricklan
touched her “boobs” and “right at the bottom.” The jury could
reasonably conclude that Stricklan touching both E.D.’s breasts and
buttocks negated any suggestion that he accidentally touched her.
¶111 Furthermore, E.D.’s first reaction after the alleged
touching was to wake up Mother and tell her what happened. This
also tends to indicate the touch was neither accidental nor incidental.
And the jury could reasonably infer that when a grown man enters
the room of a child after she goes to bed and touches her breasts and
buttocks that the purpose of such touching was sexual gratification.
¶112 Mother questioned Stricklan, and Stricklan eventually
called the police. The detective’s response was to ask Stricklan to
leave the house that night, at which point the jury heard testimony
that Stricklan admitted to acting “inappropriately” on a phone call to
33
STATE v. STRICKLAN
Opinion of the Court
his father. Again, the jury could reasonably infer from Stricklan’s
characterization of how he had acted that Stricklan touched E.D.
with the requisite intent.
¶113 We have repeatedly recognized that the jury is in the best
position to judge the credibility of testimony and weigh the
evidence. See Mackin v. State, 2016 UT 47, ¶ 20, 387 P.3d 986 (“We
grant substantial deference to a jury verdict.”); State v. Nielsen, 2014
UT 10, ¶ 41, 326 P.3d 645 (recognizing the “healthy dose of deference
owed to factual findings and jury verdicts”); State v. Workman, 2005
UT 66, ¶ 29, 122 P.3d 639 (“The standard of review for a sufficiency
claim is highly deferential to a jury verdict.”). We do not fault the
district court for deferring to the jury’s determination that Stricklan
touched E.D. with the requisite intent.
V. The Dissent’s Alternative Narrative Does Not
Demonstrate that the Jury Must Have Entertained
a Reasonable Doubt About Stricklan’s Guilt
¶114 The dissent presents an alternative reading of each of the
individual facts and testimony that the State presented to the jury.19
But imagining other ways the jury might have interpreted pieces of
evidence is not our assigned task. When reviewing the sufficiency of
the evidence to sustain a conviction
[t]he question presented is not whether we can
conceive of alternative (innocent) inferences to draw
from individual pieces of evidence, or even whether
we would have reached the verdict embraced by the
jury. It is simply whether the jury’s verdict is
reasonable in light of all of the evidence taken
cumulatively, under a standard of review that yields
deference to all reasonable inferences supporting the
jury’s verdict.
State v. Ashcraft, 2015 UT 5, ¶ 24, 349 P.3d 664. In Ashcraft, we
concluded that there was sufficient evidence before the jury that the
defendant was “in constructive possession” of drugs. Id. ¶ 30. We
then concluded that “[w]e cannot disturb the jury’s conclusion just
because it could have reasonably come to a different one.” Id. And in
response to the Ashcraft dissent’s presentation of an alternative
_____________________________________________________________
19 But, as we explain, the dissent also fails to indulge inferences in
favor of the verdict and, in some instances, improperly dismisses the
evidence the jury heard.
34
Cite as: 2020 UT 65Opinion of the Court
explanation for the evidence against the defendant, we stated, “the
fact that we can identify an ‘equally’ plausible alternative inference
is not nearly enough to set [a] verdict aside.” Id. ¶ 25. In the end, the
issue is “not whether some other (innocent) inference might have
been reasonable. It is simply whether the inference adopted by the
jury was sustainable.” Id. ¶ 27; see also Mackin v. State, 2016 UT 47,
¶ 29, 387 P.3d 986 (citing Ashcraft and other cases establishing our
duty in reviewing the sufficiency of the evidence); State v. Law, 2020
UT App 74, ¶ 12, 464 P.3d 1192 (same). So, even if there is another
interpretation of the facts, our job is to determine whether the
version adopted by the jury was sufficiently persuasive to remove
reasonable doubt of the defendant’s guilt.
A. The Jury Could Reasonably Conclude
that Stricklan Touched E.D.
¶115 The dissent dismisses E.D.’s testimony concerning her
previous reports of abuse as “a reference to an out-of-court statement
in which E.D. claimed that Mr. Stricklan” touched her and
“testimony regarding how others reacted to this claim.” Infra ¶ 170.
¶116 To characterize E.D.’s testimony as a “reference” ignores
the reality of what the State presented to the jury. The jury heard
E.D. confirm that she had twice told the police that Stricklan had
touched her—once the night of the incident and another at the CJC
interview. After E.D. watched her CJC interview outside the
presence of the jury, the prosecutor questioned E.D., in front of the
jury, about the statements she had previously made to the detective.
She was asked questions about what she told the detective. The State
asked her to confirm that she had told the detective that Stricklan
touched her “right at the bottom.” Although E.D. could not
remember whether she had told the detective if Stricklan had
touched her over or under her clothing, she confirmed that she had
said that Stricklan touched her “on the back and chest area,” and she
clarified that when she said “chest area” she meant her “boobs.” This
is more than just a passing reference to a previous statement E.D.
had made.
¶117 The dissent points out that the jury did not see E.D.’s
demeanor when she made the out-of-court statements to the
detective. Infra ¶ 173. But the jury did see the prosecutor question
E.D. about her previous statements to the police that Stricklan
touched her. And the jury heard E.D.’s trial testimony that Stricklan
did not touch her, and it heard the testimony of other witnesses as
described above. The jury was in the best position to weigh all the
evidence and determine the credibility of that evidence. It may not
35
STATE v. STRICKLAN
Opinion of the Court
have had the advantage of seeing E.D. twice tell her original story
that Stricklan touched her, but it was in a better position than the
members of this court to weigh her testimony about what she had
said against her recantation, as well as all the other evidence
presented at trial.
¶118 The dissent spends a lot of time offering alternative
interpretations of the evidence the jury heard. For instance, it claims
that the fact that Mother “was crying when police arrived” was not
inconsistent with E.D.’s recantation. Infra ¶ 175. And that Mother’s
questioning Stricklan could have been the duty of a responsible
mother and that “a mother is likely to investigate [an allegation of
sexual abuse] even if she suspects it might not be true.” Infra ¶ 175.
The dissent also says that when Stricklan said that he needed a ride
because he “acted inappropriately” it is possible that the officer
misheard Stricklan. Infra ¶ 178. Or, that even if the officer heard
Stricklan correctly, it could be “reasonable to assume” that
Stricklan’s reference to inappropriate acts was a reference to “his
excessive drinking and not to any acts of sexual abuse.” Infra ¶ 180. 20
¶119 And although the dissent paints a portrait of how a jury
might have interpreted this evidence, that is not the entirety of our
job when reviewing the sufficiency of the evidence. We review the
evidence, “viewed in the light most favorable to the State, [to
determine if] ‘some evidence exists from which a reasonable jury
could find that the elements of the crime had been proven beyond a
reasonable doubt.’” State v. Gonzalez, 2015 UT 10, ¶ 27, 345 P.3d 1168(citation omitted). It is of no moment that we can offer alternative
_____________________________________________________________
20 The dissent also dismisses Stricklan’s concessions to police that
E.D. had never lied to him and that he did not believe that she was
making up her story. To the dissent, Stricklan’s admissions can be
discounted because E.D. lied at least once “either in her out-of-court
statement or under oath at trial.” Infra ¶ 176.
This misses the mark. The importance of this testimony is not that
the jury heard that E.D. had never lied to Stricklan, so the jury
should think that E.D. always tells the truth. The importance is that
the jury heard a detective, while interrogating Stricklan about the
allegations E.D. had levelled against him, ask Stricklan, “So do you
think she’s making this up?” And the jury heard Stricklan say, “no.”
The jury could reasonably conclude that this not only corroborated
E.D.’s reports of abuse but also that it was a functional admission of
guilt.
36
Cite as: 2020 UT 65Opinion of the Court
explanations, or even that we would have reached a different
conclusion had we served on the jury. The question is whether
enough evidence existed to permit the jury to reach its verdict. For
the reasons we have explained, the State presented sufficient
evidence to support the conclusion that Stricklan inappropriately
touched E.D. And that conclusion ends our ability to second-guess
what the jury concluded.
B. The Jury Could Reasonably Conclude that
Stricklan Touched E.D. with the Requisite Intent
¶120 The dissent also agrees with Stricklan that the State failed
to introduce sufficient evidence to permit the jury to conclude that
he touched E.D. with the “intent to cause substantial emotional or
bodily pain to any individual or with the intent to arouse or gratify
the sexual desire of any individual.” UTAH CODE § 76-5-404.1(2). The
dissent likens this case to a court of appeals decision, State v.
Whitaker, 2016 UT App 104, 374 P.3d 56. Infra ¶ 185. In Whitaker, the
defendant was also accused of aggravated sexual abuse of his
stepdaughter. 2016 UT App 104, ¶¶ 1, 3. The girl testified that
Whitaker took her hand and “slowly put it between his legs,” “on his
private part,” while her “palm was up.” Id. ¶ 4. The court of appeals
noted there was no evidence that Whitaker acted suggestively,
attempted to ensure the child’s silence, or that he held the child’s
hand in place or “otherwise manipulated it.” Id. ¶ 15. Because the
court was unwilling to take a “speculative leap,” it concluded the
State did not present any evidence other than the touch itself, and
that meant there was insufficient evidence to prove Whitaker acted
with the requisite intent. Id. ¶¶ 18–19. Namely, the State did not
present “evidence other than the act itself, which act was not a
typical sexual activity” to prove beyond a reasonable doubt that
Whitaker acted with the requisite intent. Id. ¶ 18.
¶121 We were not afforded an opportunity to review that
decision. And while we are not in position to review it now, we view
with some skepticism the conclusion that it takes a “speculative
leap” to conclude that a grown man who places a child’s hand on his
penis does so for the purpose of sexual arousal. We would also note
that here, unlike in Whitaker, there was other circumstantial evidence
present that Stricklan acted with the requisite intent. See supra
¶¶ 110–13. Most notably, E.D.’s report that she was touched both
“right at the bottom” and on her “boobs.” See supra ¶ 110.
¶122 The dissent nevertheless accuses us of similarly taking a
“speculative leap” because E.D.’s out-of-court statements “did not
provide any additional details from which we could infer intent.”
37
STATE v. STRICKLAN
Opinion of the Court
Infra ¶ 188. The dissent again presents another way the jury could
have interpreted the evidence that Stricklan touched E.D.: that he
inadvertently touched her while tucking her in. Infra ¶¶ 189–90.
¶123 In the end, the dissent may offer an alternative
explanation, but it does not demonstrate how that other explanation
must have created reasonable doubt in the jury’s collective mind. See
Ashcraft, 2015 UT 5, ¶ 30 (“We cannot disturb [a] jury’s conclusion
just because it could have reasonably come to a different one.”). As
noted above, the jury could conclude that when a grown man enters
the room of a child after she has gone to bed, and touches her in two
intimate places, and shortly thereafter tells his father that he has
acted inappropriately, that he has acted with the requisite intent.
VI. Stricklan Did Not Preserve His Argument
that E.D.’s Testimony Was Inherently Improbable
¶124 Stricklan also argues that E.D.’s testimony was inherently
improbable. Stricklan points to our decision in State v. Robbins in
which we tossed out a conviction because the victim’s testimony was
inherently improbable. 2009 UT 23, 210 P.3d 288.
¶125 The State counters that the Robbins argument is
unpreserved. The State argues that Stricklan’s motions to the district
court only raised “one specific issue—that his conviction could not
stand on the basis of E.D.’s recanted prior statements alone, relying
on Webb and Ramsey.” Stricklan claims that the State misunderstood
his argument and that he is arguing that even if this court overruled
or narrowed Webb and Ramsey, “for the same reasons he argued
below and on appeal that the evidence fails under the Webb/Ramsey
rule, the evidence is also so inconclusive and inherently improbable
that a reasonable jury could not have believed beyond a reasonable
doubt that he committed the offenses.” We agree that Stricklan has
not preserved the Robbins issue as it concerns a distinct legal theory
from those he argued below.
¶126 When we talk about preservation, “our case law draws a
distinction between new ‘issues’ (like distinct claims or legal
theories) and new ‘arguments’ in support of preserved issues.” Hand
v. State, 2020 UT 8, ¶ 6, 459 P.3d 1014 (citing State v. Johnson, 2017 UT
76, ¶ 14 n.2, 416 P.3d 443). In Johnson we stated that how an appellant
argues the issue is “semantics” and what is required is for courts to
“look at the underlying policies to determine whether new
arguments are actually entirely new issues.” Johnson, 2017 UT 76,
¶ 14 n.2 (citing Patterson v. Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828).
Our case law “confirms that we view issues narrowly, but also
38
Cite as: 2020 UT 65Opinion of the Court
[makes] it clear that new arguments, when brought under a properly
preserved issue or theory, do not require an exception to
preservation. Such arguments include citing new authority or cases
supporting an issue that was properly preserved.” Id.¶127 An issue is preserved if it was presented before the district
court “in such a way that the court has an opportunity to rule on it.
To provide the court with this opportunity, the issue must be
specifically raised [by the party asserting error], in a timely manner,
and must be supported by evidence and relevant legal authority.” Id.
¶ 15 (citation omitted) (internal quotation marks).
¶128 Here the district court did not have an opportunity to rule
on the Robbins issue. Indeed, the district court never would have
known that Stricklan wanted it to assess the inherent improbability
of E.D.’s testimony. None of the arguments below articulated a
Robbins argument nor suggested that E.D.’s testimony was
“inherently improbable.” Stricklan’s arguments in both of his
motions are largely, if not solely, tied to Ramsey and Webb.
¶129 We do not find anywhere in the record where Stricklan
referenced Robbins, the Robbins standard, argued that E.D.’s
testimony met this standard, or asked that E.D.’s testimony be
entirely disregarded.
¶130 Stricklan’s best preservation argument focuses on his
motion to arrest judgment. There, Stricklan quoted a chunk of our
decision in State v. Workman, 852 P.2d 981, 984 (Utah 1993), regarding
the standard a court should employ to decide whether to set aside a
verdict for insufficient evidence. In Workman, we stated, “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.” 852 P.2d at
984 (citing e.g., State v. Petree, 659 P.2d 443, 444 (Utah 1983)).
Although Stricklan quoted that language to the district court, he
never argued that E.D.’s testimony was “inherently improbable.”
¶131 Before us, Stricklan argues that the district court’s
language briefly used the term “inherently improbable” when it
ruled on his motion to arrest judgment. The district court stated, “I’ll
assess the evidence viewed in the light most favorable to the jury’s
verdict and determine if it is sufficiently inconclusive or so inherently
improbable that reasonable minds must have entertained a reasonable
doub[t] as to an element.” (Emphasis added.) But again, it appears
39
STATE v. STRICKLAN
DURRANT, C.J., dissenting
that this was simply a reference to the general standard Workman
articulated and not a sign that the district court actually considered
whether E.D.’s testimony was inherently improbable. Because this
issue was not presented to the district court, it is not preserved.
CONCLUSION
¶132 We give great weight to a jury verdict. A jury is in the best
position to assess evidence and determine credibility of witness
testimony. In this case, the evidence was sufficient to sustain
Stricklan’s convictions. The State presented evidence to corroborate
E.D.’s original claim that Stricklan had touched her breasts and
buttocks. And the State introduced sufficient evidence to permit the
jury to conclude that Stricklan had touched E.D. with the required
intent. Any argument that E.D.’s testimony was inherently
improbably is unpreserved. Accordingly, we affirm Stricklan’s
convictions.
CHIEF JUSTICE DURRANT, dissenting:
INTRODUCTION
¶133 We must decide whether Mr. Stricklan can be convicted of
aggravated sexual abuse where there is no physical evidence that
E.D.—the alleged victim—was sexually abused (let alone physical
evidence connecting Mr. Stricklan to the alleged crime), no witnesses
who testified under oath that they believed sexual abuse occurred or
that Mr. Stricklan committed the crime, and no expert testimony
opining that the alleged victim had been abused, and where the only
two people (E.D. and Mr. Stricklan) who would have personal
knowledge of the facts underlying the alleged abuse now
unequivocally maintain that no crime occurred. The majority
concludes the evidence is sufficient because E.D. had previously
made unsworn, out-of-court statements claiming the crime occurred.
According to the majority, it was the jury’s role to weigh the
“credibility” of these statements against the credibility of E.D.’s
unequivocal recantation at trial. And the majority affirms
Mr. Stricklan’s conviction because it is unwilling to second guess
what it deems to be the jury’s credibility determination. I disagree.
¶134 In my view, the majority errs in failing to apply the
controlling precedent we established in State v. Webb and State v.
Ramsey regarding convictions that are based almost entirely on
uncorroborated hearsay. And the majority errs in its ultimate
conclusion because E.D.’s previous hearsay claim—upon which
40
Cite as: 2020 UT 65DURRANT, C.J., dissenting
Mr. Stricklan’s conviction is entirely based—is insufficient to
establish the elements of sexual abuse, especially to establish the
element of intent.
ANALYSIS
¶135 I disagree with the majority’s determination that the
evidence in this case is sufficient to sustain Mr. Stricklan’s guilty
verdict. In my view, the majority errs in making this determination
for two reasons. First, the majority errs in concluding that the
principles established in State v. Webb 21 and State v. Ramsey 22 apply
only in cases where the “evidence of guilt consists solely of an
uncorroborated out-of-court statement.” 23 Because the principles
established in Webb and Ramsey apply any time the State introduces
hearsay statements as evidence, those principles apply to our review
of E.D.’s out-of–court statements in this case. And in applying those
principles to the facts of this case (where there is no physical
evidence of a crime—or Mr. Stricklan’s connection to it—and, at trial,
the only two people who would have personal knowledge of the
alleged crime unequivocally maintained that no crime occurred), I
conclude the evidence is insufficient to support a guilty verdict.
¶136 Second, the majority errs in concluding there is sufficient
evidence of the “intent” element. Even were I to disregard the legal
principles discussed in Webb and Ramsey, I would nevertheless
conclude that E.D.’s hearsay evidence, which amounted to nothing
more than a reference to a past claim of touching, is insufficient to
support a finding that Mr. Stricklan had the requisite criminal intent.
For these reasons, I dissent.
I. The Majority Errs in Misreading and, as a Result,
Wholly Discounting Our Holdings in
State v. Webb and State v. Ramsey
¶137 The majority misreads our holdings in State v. Webb 24 and
State v. Ramsey. 25 As the majority notes, Mr. Stricklan’s and the
State’s briefings focused primarily on the applicability of our
_____________________________________________________________
21 779 P.2d 1108 (Utah 1989).
22 782 P.2d 480 (Utah 1989).
23 Supra ¶ 83.
24 779 P.2d 1108 (Utah 1989).
25 782 P.2d 480 (Utah 1989).
41
STATE v. STRICKLAN
DURRANT, C.J., dissenting
holdings in those cases. Mr. Stricklan argued that Webb and Ramsey
established the bright-line rule that a single, uncorroborated hearsay
statement is insufficient to support a verdict. Although the State
does not contest this characterization, it argues that Webb and Ramsey
are factually distinguishable and, therefore, do not apply.
¶138 The majority, on the other hand, takes “a different lesson
from the holdings of those opinions.” 26 After a careful review of our
opinions in Webb, Ramsey, and their progeny, the majority concludes
that Webb and Ramsey do not establish a bright-line rule, as the
parties have argued. Instead, the majority explains that under Webb
and Ramsey, “we do what we always do when a defendant’s seeks to
set aside her conviction arguing insufficient evidence: we review all
of the evidence before the jury to see if it dispels reasonable doubt of
the defendant‘s guilt.” 27 So far so good. I agree with the majority’s
reading of Webb and Ramsey to this point.
¶139 But the majority’s reading of Webb and Ramsey comes off
the rails when it states that the rule established in those cases does
“very little analytical work.”28 As I’ll explain, this suggests that the
majority misses the central point in our Webb and Ramsey decisions:
that in reviewing the sufficiency of the evidence, an appellate court
should assess the reliability of hearsay, even where the hearsay has
been admitted into evidence through a judicially or legislatively
created exception. 29 And, where a conviction is based “almost
_____________________________________________________________
26 Supra ¶ 38.
27 Supra ¶ 60.
28 Supra ¶ 60.
29 It appears that the majority and I are in agreement that neither
Webb nor Ramsey modifies the traditional inquiry we use when we
consider a challenge to the sufficiency of the evidence. Supra ¶ 82.
The majority is also correct in noting that although “we may, in this
case, weigh the evidence differently,” we both agree that our inquiry
is aimed at determining whether “evidence existed from which a
reasonable jury could find beyond a reasonable doubt” that the
defendant committed the crime. Supra ¶ 82. So I disagree with the
majority only to the extent it suggests that appellate courts are
barred from assessing the reliability of hearsay evidence in making
their sufficiency assessment. In my view, that is the central point of
our decisions in Webb and Ramsey. See infra ¶¶ 140-65.
42
Cite as: 2020 UT 65DURRANT, C.J., dissenting
entirely” on an unreliable hearsay statement, the evidence is
insufficient to sustain a conviction. After discussing the legal
principles in Webb and Ramsey, I will apply them to this case.
A. Webb and Ramsey Make Clear that Courts May Assess
the Reliability of Hearsay Statements and that, Where a
Conviction is Based Almost Entirely on Unreliable Hearsay,
the Evidence is Insufficient to Sustain the Conviction
¶140 Due to the inherent unreliability of hearsay, courts have
long treated hearsay statements with caution. “A hearsay statement
can never be subjected to the same degree of scrutiny through cross-
examination as can live testimony. Thus, the opponent may never be
able to expose, and the trier of fact never learn, the possible
reliability problems of a given hearsay statement. This is true even
when the declarant takes the witness stand and relates his or her
own prior out-of-court statement.” 30 So, “[i]n the absence of special
reasons, the perceived untrustworthiness of [hearsay] has led the
Anglo-Saxon legal system to exclude it . . . despite its potentially
probative value.”31 And, even where special reasons exist to admit
hearsay—because the hearsay is admissible through a common-law
or legislative exception—appellate courts have nevertheless
considered hearsay’s “unreliable character . . . in determining the
weight that should be given it.”32
_____________________________________________________________
30 Stanley A. Goldman, Guilt by Intuition: The Insufficiency of Prior
Inconsistent Statements to Convict, 65 N.C. L. REV. 1, 17 (1986).
31 Laurence H. Tribe, Triangulating Hearsay, 87 HARV. L. REV. 957,
958 (1974).
32 Johnson v. Geddes, 161 P. 910, 917–18 (Utah 1916) (McCarty, J.,
concurring); see also Care & Prot. of Rebecca, 643 N.E.2d 26, 33 (Mass.
1994) (explaining that under “traditional principles governing the
use of hearsay evidence” courts should “assess the reliability of such
evidence in connection with deciding how much weight to accord
it”). The majority suggests that the Rebecca case is distinguishable
because it dealt with “a specific Massachusetts statute regarding the
admissibility of hearsay statements made by young victims of sexual
abuse.” Supra ¶ 76. But in this case we are also dealing with hearsay
statements made by a young victim of sexual abuse that were
admitted under an enacted exception to the traditional hearsay bar.
So the cases, and the policies underlying them, are substantially
similar.
(continued ...)
43
STATE v. STRICKLAN
DURRANT, C.J., dissenting
¶141 For example, in United States v. Orrico, 33 the Sixth Circuit
Court of Appeals reversed a criminal conviction after considering
the evidentiary weight of hearsay evidence. In that case, a man had
been convicted of a crime based “entirely” on hearsay evidence. 34 In
assessing the sufficiency of this evidence, the court noted that under
common law hearsay principles, the hearsay statements at issue
would have been inadmissible as substantive evidence of the
defendant’s guilt. 35 But, because the federal evidence rules had
recently been amended to create “a very broad standard of
admissibility with the goal of placing all relevant evidence before the
trier of fact,” the hearsay had been admitted. 36
¶142 But the fact that the hearsay evidence was admissible did
not settle the dispute over the evidence’s sufficiency. As the court
noted, even where the admission of hearsay evidence enables the
government “to make out a prima facie case,” it is “unlikely that a
reasonable juror could be convinced beyond a reasonable doubt by
such evidence alone.” 37 The court further explained that it could
“conceive of such an ‘unusual case,’ where, for example, a purely
technical element of a crime is established solely through” formerly
inadmissible hearsay evidence and there exists a “strong indicia of
reliability and an adequate foundation” for that evidence. 38 But,
_____________________________________________________________
The majority also points out that the court’s holding in Rebecca
did not require courts to consider the reliability of hearsay statements
after they had been admitted. Supra ¶¶ 76–77. Very well. I do not
argue that Webb or Ramsey establishes a bright-line requirement to
conduct a reliability analysis of hearsay in every case. Instead, my
only point is that our decisions in Webb and Ramsey are consistent
with the “traditional principles governing the use of hearsay
evidence” recognized in Rebecca: that even where hearsay evidence
has been admitted through a valid exception, courts are nevertheless
free to “assess the reliability of such evidence in connection with
deciding how much weight to accord it.”
33 599 F.2d 113 (6th Cir. 1979).
34 Id. at 117.
35 Id.36 Id.37 Id. at 118 at (emphasis added).
38 Id.(emphasis added).
44
Cite as: 2020 UT 65DURRANT, C.J., dissenting
according to the court, “when such evidence is the only source of
support for the central allegations of the charge,” the government
could not meet its burden of proving, beyond a reasonable doubt,
“that a substantial factual basis [existed] as to each element of the
crime.” 39
¶143 In other words, even though the court in Orrico noted that
formerly inadmissible hearsay evidence “may be used to corroborate
evidence which otherwise would be inconclusive, [to] fill in gaps in
the Government’s reconstruction of events, or [to] provide valuable
detail which would otherwise have been lost through lapse of
memory,” it held that the government fails to “to sustain its burden
of proving guilt beyond a reasonable doubt” where hearsay evidence
is “the sole evidence of a central element of the crime charged.” 40
¶144 As the Montana Supreme Court explained in State v. Giant,
the “entire analysis in [Orrico] revolves around the questionable
reliability of [hearsay] statements.” 41 After noting this, the court in
Giant conducted a similar analysis.
¶145 In that case, the court considered a number of state and
federal cases, including Orrico, in its effort to determine whether an
out-of-court statement provided sufficient evidence to sustain a
conviction. 42 In so doing, the court recognized that recent
amendments to its rules of evidence, which allowed previously
inadmissible hearsay to be admitted as substantive evidence, had
created some tension between “the issue of admissibility and the
issue of sufficiency.” 43 The court noted that the “[s]ufficiency of
_____________________________________________________________
39 Id.40 Id. at 119.
37 P.3d 49, 56 (Mont. 2001), overruled on other grounds by State v.
41
Swann, 160 P.3d 511 (Mont. 2007).
42 Id. at 50.
43 Id. at 55. The court in Giant explained that it was not alone in
grappling with this issue: “[a]fter the modernization of [a hearsay
rule regarding prior inconsistent statements], state and federal case
law began to struggle with the issue of the sufficiency of prior
inconsistent statements as the sole proof supporting a conviction.”
Id. I note that the hearsay at issue in this case was admitted under
Utah’s counterpart to the prior-inconsistent statement rule discussed
in Giant.
45
STATE v. STRICKLAN
DURRANT, C.J., dissenting
evidence is a determination that depends on the facts specific to a
case and addresses the question of whether the evidence supports a
conviction such that any rational trier of fact could find guilt beyond
a reasonable doubt.” 44 But it explained that when “a conviction is
supported solely by a prior inconsistent statement, a review of the
evidence for sufficiency so as to assess whether any rational trier of
fact could find guilt beyond a reasonable doubt inevitably involves a
review of the degree of reliability of the prior inconsistent statement.” 45 For
this reason, according to the court, the “sufficiency of such evidence
is completely dependent on its reliability.” 46
_____________________________________________________________
44 Id.
45 Id. (emphasis added).
46 Id. at 56. The majority argues that I have overstated the holding
in Giant. Supra ¶ 78. But the majority concedes that the court in Giant
conducted its sufficiency of the evidence review by “gaug[ing] the
reliability” of hearsay statements and that it gauged the reliability of
these statements by “assessing whether the prosecution had
introduced evidence that corroborated the [hearsay].” Supra ¶ 78.
But that is my only point. I argue that our decisions in Webb and
Ramsey adopted the rule that when courts are assessing the
sufficiency of evidence, they are permitted to weigh the reliability of
hearsay evidence as a part of that assessment. The majority, in
contrast, states that it is bound to presume that the hearsay
statement in this case is reliable because it has identified other
evidence that can be interpreted consistent with a guilty verdict.
Supra ¶ 71. This is inconsistent with what we did in Webb and Ramsey
and with what the majority and dissent did in Giant. See Giant, 37
P.3d at 60 (Gray, C.J., dissenting) (expressing agreement with
“virtually everything” in most of the majority opinion, including the
majority’s assertion that a sufficiency-of-the evidence review
“inevitably involves a review of the degree of reliability of
[hearsay]”). In fact, the majority’s approach is an approach the
majority and dissent in Giant explicitly rejected.
In Giant, the State of Montana argued that the hearsay statements
at issue “should be considered reliable and sufficient as the sole basis
for identifying Giant as the assailant because [the declarant’s] prior
statements were consistent with the physical evidence, three of her
statements were given right after the incident, at least one was tape-
recorded, and [one of the statements] was notarized.” Id. at 59. But
(continued ...)
46
Cite as: 2020 UT 65DURRANT, C.J., dissenting
¶146 So the decisions in Orrico and Giant establish that even
where formerly inadmissible hearsay evidence is deemed admissible
under a more recently created hearsay exception, appellate courts
should nevertheless weigh the evidence’s reliability as part of its
sufficiency assessment.
¶147 Our reasoning in Webb is consistent with this principle. In
Webb, we reversed a conviction for sexual abuse that stood “almost
entirely on one out-of-court declaration of [a] child.” 47 In so doing,
we noted that a recent legislative enactment allowed for the
“[a]dmission of hearsay statements by child sexual abuse victims.” 48
And we explained that before the legislature enacted this statute, “it
was almost certain that the testimony of a child as young as the
victim [in the case] would not be admissible.” 49 But even though the
hearsay statement was admissible through a legislative exception to
the hearsay rule, this did not prevent us from weighing that
statement’s probative value on appeal.
¶148 Rather, we explained, based on the circumstances in the
case, that it was “beyond credulity that the law could allow a
conviction to stand on such evidence.” 50 And, citing the Sixth
Circuit’s decision in Orrico, we stated that “a single uncorroborated
hearsay statement is not substantial evidence and not sufficient to
support a verdict.” 51 So our decision in Webb makes clear that even
_____________________________________________________________
the court rejected this argument because it was based on a
misunderstanding of its case law. According to the court, Montana
case law required that “statements must be corroborated by
independent evidence of Giant’s identity as the assailant for the
denial of directed verdict to stand.” Id. In other words, it was not
enough that there was additional evidence that could reasonably be
interpreted consistent with the crime at issue. For hearsay evidence
to be sufficient to support a conviction, the State needed to present
evidence that independently corroborated the hearsay statement. In
view of the plain language of our opinions in Webb and Ramsey, it is
clear that Utah requires the same. See infra ¶¶ 159-65.
47 779 P.2d at 1115.
48 Id. at 1110.
49 Id.
50 Id. at 1115.
51 Id.
47
STATE v. STRICKLAN
DURRANT, C.J., dissenting
where a hearsay statement is deemed admissible through a legally-
recognized hearsay exception, we may nevertheless assess the
reliability and evidentiary weight of the statement as part of our
sufficiency analysis.
¶149 This is also true of our Ramsey opinion. In that case, we
again considered whether a conviction for sexual abuse, which was
based almost entirely on hearsay evidence, was sufficient.52
Although we acknowledged that the hearsay evidence was properly
admitted as “substantive evidence,” we explained that “not all
substantive evidence is of equal probative value.” 53 And we noted
that a “conviction not based on substantial reliable evidence cannot
stand.” 54 After considering the facts presented in the case, including
the fact that the child who made the hearsay statement at issue had
denied the truthfulness of that statement in court and under oath, we
cited Orrico for the proposition that where hearsay statements are
“the only source of support for the central allegations of the charge,”
the government has not met its burden of offering “a substantial
factual basis as to each element of the crime providing support for a
conclusion of guilt beyond reasonable doubt.” 55 And we cited Webb
for the proposition that a “single uncorroborated hearsay statement
was not substantial evidence and not sufficient to support the
verdict.”56
¶150 Based on these principles, we concluded that “a conviction
that is based entirely on a single, uncorroborated hearsay out-of-
court statement that is denied by the declarant in court under oath
cannot stand.” 57 And for this reason, we deemed the evidence in the
case insufficient to uphold the guilty verdict. 58 So our decision in
Ramsey, like the decisions in Orrico and Webb, makes clear that, on
appeal, we may weigh the reliability and probative value of hearsay
_____________________________________________________________
52 Ramsey, 782 P.2d at 482–83.
53 Id. at 483.
54 Id.
55 Id. at 484.
56 Id.
57 Id.
58 Id.
48
Cite as: 2020 UT 65DURRANT, C.J., dissenting
in assessing the sufficiency of the evidence supporting a guilty
verdict.
¶151 This is an important principle. But it is one the majority
seems to ignore in affirming Mr. Stricklan’s conviction. As noted
above, the majority dismisses our decisions in Webb and Ramsey as
doing “very little analytical work.” 59 And it ultimately grounds its
decision on an unwillingness to second-guess what it deems was a
“credibility” determination the jury made between E.D.’s trial
testimony and her recanted out-of–court statements. But in so doing,
the majority suggests, contrary to what we did in Webb and Ramsey,
that we are unable to weigh the reliability and the probative value of
hearsay evidence on appeal. So the majority’s reasoning is
inconsistent with the reasoning in Webb and Ramsey (and Orrico).
¶152 In fact, the majority takes its misreading of our Webb and
Ramsey opinions one step further when it concludes that the
existence of other, circumstantial evidence takes this case “outside
the ambit of the Webb/Ramsey ‘rule.’” 60 As I will discuss in part B of
this section, when the principles discussed in Webb and Ramsey are
applied to the facts of this case, the evidence is insufficient to sustain
Mr. Stricklan’s conviction. But, first, I note that the majority’s
conclusion that the reasoning we employed in Webb and Ramsey does
not apply here (because the jury in this case was given more than “a
single, out-of-court and uncorroborated statement on which to
convict”) is inconsistent with both Webb and Ramsey. This is because
in Webb and Ramsey, there was not only additional evidence
presented, but the evidence in both cases was stronger than what has
been presented in this case.
¶153 For example, the majority argues the fact that E.D.’s
mother immediately asked Mr. Stricklan about E.D.’s accusation
(and the fact that the mother was crying when the police showed up)
provided the jury with evidence from which it could conclude the
mother believed “that [Mr.] Stricklan was capable of, and had
engaged in, what E.D. alleged he had done.” 61 And in this way, the
evidence lent “credence to E.D.‘s initial report.” 62
_____________________________________________________________
59 Supra ¶ 60.
60 Supra ¶ 101.
61 Supra ¶ 86.
62 Supra ¶ 86.
49
STATE v. STRICKLAN
DURRANT, C.J., dissenting
¶154 But the same could be said of the evidence presented in
Webb and Ramsey. In Webb, for example, the fact that the mother
acted as the State’s “chief witness,” and had presumably reported
the alleged abuse to the State in the first instance, strongly suggested
the mother believed the defendant in that case was capable of
committing the alleged crime. 63 And in Ramsey, there were two
mothers assisting in the State’s prosecution of the defendant, both of
whom clearly believed the defendant was capable of committing the
type of sexual crime at issue. 64 Also, in Ramsey, although we
considered the sufficiency of the evidence for only one sexual abuse
conviction, the sufficiency of the evidence supporting another
conviction in the case was not challenged. 65 So we reversed the first
conviction despite the strong evidence suggesting the defendant was
capable of committing the type of crime at issue. 66 Thus the evidence
in Webb and Ramsey regarding what others believed the defendant to
be capable of clearly did not take the case outside the ambit of the
legal principles discussed in those cases.
¶155 The majority also points to the fact that even in E.D.’s trial
testimony, Mr. Stricklan was placed at the scene of the alleged crime.
But so were the defendants in Webb and Ramsey. In Webb, the alleged
sexual abuse took place during a time in which the defendant “had
sole custody” of the child-victim. 67 And in Ramsey, the alleged sexual
abuse occurred during the two alleged victims’ visitation time with
their defendant father. 68 So in both cases, the uncontested facts
placed the defendants at the scene of the alleged crime.
¶156 What’s more, in Webb and Ramsey there was evidence that
a crime had actually taken place. In Webb, the jury viewed a
photograph of an injury to the victim’s anus, the mother testified
that she discovered the injury soon after the defendant had been
alone with the victim, and a physician shared the opinion, based on
_____________________________________________________________
63 779 P.2d at 1113.
64 782 P.2d at 482.
65 Id.
66 Id. at 484.
67 779 P.2d at 1109.
68 782 P.2d at 482.
50
Cite as: 2020 UT 65DURRANT, C.J., dissenting
the nature of the injury, that the child had been sexually abused. 69 In
Ramsey, “a licensed social worker” opined, after interviewing the
two children-victims, that both children had been sexually abused
and “that the perpetrator of the abuse was defendant.” 70 And “a
psychologist who treated both children, testified that both children
fit a profile of sexually abused children and that in her opinion
defendant had committed the abuse.” 71 So the additional evidence in
Webb and Ramsey was more abundant than it is in this case—which
lacks any physical evidence or expert testimony suggesting that E.D.
was sexually abused.
¶157 But despite the ample additional evidence in Webb and
Ramsey, we nevertheless took it upon ourselves to weigh the
reliability and probative value of the hearsay statements at issue. We
did so because, even though the other evidence could be interpreted
in a way that was consistent with the content of the hearsay
statements at issue, we recognized that key elements of the alleged
crimes could not be proven without inclusion of the hearsay
statement.
¶158 So, contrary to what the majority states, this case does not
fall outside Webb and Ramsey’s ambit just because the State provided
some evidence in addition to the pivotal hearsay statement. Rather,
the principles articulated in those cases apply any time hearsay
evidence is presented. And under those principles, where the
unreliability or inadequate probative value of a hearsay statement
leads us to conclude that the evidence is insufficient to establish guilt
beyond a reasonable doubt, we must reverse the conviction. 72
¶159 The majority’s misreading of our decisions in Webb and
Ramsey appears to stem, at least in part, from the its
misinterpretation of a single sentence—”[t]he law is that a single
_____________________________________________________________
69 779 P.2d at 1109.
70 782 P.2d at 482.
71 Id.
72 Under my approach, which is the approach we followed in
Webb and Ramsey, we can and should consider all evidence that was
presented to the jury. So the only difference between my approach
and the approach adopted by the majority in this case is that, under
my approach, we need not blind ourselves to the inherent
unreliability of hearsay evidence when conducting our review.
51
STATE v. STRICKLAN
DURRANT, C.J., dissenting
uncorroborated hearsay statement is not substantial evidence and
not sufficient to support a verdict.” 73 This sentence appeared in Webb
and was later repeated in Ramsey. As discussed above, the majority
takes this to mean that Webb and Ramsey do not apply where there is
other evidence that can be interpreted to corroborate the defendant’s
guilt. And its analysis suggests that so long as other evidence can be
interpreted consistent with the facts alleged in the hearsay statement,
the guilt has been “corroborated,” and we should not weigh the
reliability of the hearsay statement on appeal. But as the discussion
above demonstrates, the majority’s reading of the opinions in Webb
and Ramsey is inconsistent with the decisions reached in those cases.
¶160 The majority provides no real pushback against this. It
cannot argue that the Webb and Ramsey rule, as it interprets it, is
inconsistent with what the courts in Webb and Ramsey did. 74 Instead
the majority argues only that my interpretation conflicts with what it
believes the courts in Webb and Ramsey said. But I don’t agree with
the majority’s interpretation of what the courts in Webb and Ramsey
meant by the sentence in question. The majority interprets the
sentence in isolation to mean that the Webb and Ramsey rule does not
apply where there is any evidence beyond a recanted hearsay
statement.
¶161 But one of our most firmly established rules of
interpretation is that text must be interpreted in the context of
surrounding text. This rule applies equally well when we are
interpreting a line from one of our previous opinions. And when we
consider the Webb court’s statement that ”[t]he law is that a single
uncorroborated hearsay statement is not substantial evidence and
not sufficient to support a verdict” in context with the rest of the
opinion, it is clear that my interpretation is consistent with what the
courts in Webb and Ramsey said and with what they did. The
majority’s interpretation is not.
¶162 The majority interprets the term “uncorroborated,” as it
appears in that sentence, to mean a lack of other evidence that can be
interpreted consistent with a guilty verdict. I, on the other hand,
interpret it to mean a lack of evidence to strengthen the reliability of
_____________________________________________________________
73 Webb, 779 P.2d at 1115.
74 See supra ¶ 72 (acknowledging my interpretation of Webb
without disputing that that is what Webb does, but nevertheless
insisting that “that is not what Webb says”).
52
Cite as: 2020 UT 65DURRANT, C.J., dissenting
the hearsay statement. 75 In isolation, either of our interpretations of
the term “uncorroborated” may be plausible. But the majority makes
no attempt to explain why it believes this term could not mean what
I interpret it to mean. Rather, the majority’s only response to my
proposed interpretation of the sentence is to simply state that this is
not what Webb says. 76 I disagree.
¶163 A review of the entire Webb opinion reveals that the court
in Webb was grappling with how to deal with hearsay evidence that
had been admitted through what was, at the time, a new exception
to the hearsay rule (an exception for victims of child sex abuse). 77
_____________________________________________________________
75 The majority treats evidence that can be interpreted in a
manner consistent with a guilty verdict as though it has corroborated
the guilty verdict. But as the Montana Supreme Court recognized in
Giant, and as we recognized in Webb and Ramsey, the existence of
other evidence that can be interpreted consistent with a guilty
verdict is not enough to constitute sufficient “corroboration.”
Instead, the corroborating evidence must provide an independent
indication of the hearsay statement’s reliability. Cf. State v. Gardner,
27 P.2d 51, 52 (Utah 1933) (“A conviction shall not be had on the
testimony of an accomplice, unless he is corroborated by other
evidence which in itself, and without the aid of the testimony of the
accomplice, tends to connect the defendant with the commission of the
offense; and the corroboration shall not be sufficient if it merely
shows the commission of the offense or the circumstances thereof.”
(emphases added) (internal quotation marks omitted)).
76 Supra ¶ 72 (“Even if that were what Webb does, that is not what
Webb says.”). The majority also claims that my interpretation of Webb
and Ramsey is inconsistent with an interpretation of those cases
included in a footnote of our opinion in State v. Span. See supra ¶ 73
(citing State v. Span, 819 P.2d 329, 333 n.2 (Utah 1991)). But the Span
footnote does not contradict my reading of Webb and Ramsey,
because the additional evidence identified by the Span court
corroborated the hearsay statement at issue by strengthening the
statement’s reliability. In other words, it bolstered the reliability of
the hearsay statement at issue. So the Span footnote is consistent with
my reading.
77 See Webb, 779 P.2d at 1110 (“Admission of hearsay statements
by child sexual abuse victims is relatively new to our law. Until the
enactment of section 76–5–410, which effectively made it impossible
to challenge the competency to testify of a child sexual abuse victim,
(continued ...)
53
STATE v. STRICKLAN
DURRANT, C.J., dissenting
And it reveals that the Webb court was relying on the Sixth Circuit’s
decision in Orrico—a case that “revolves around the questionable
reliability of [hearsay] statements” 78—when it wrote the sentence in
question. 79 And it reveals that the Webb court analyzed a significant
amount of other evidence—evidence that could be construed as
consistent with the jury’s guilty verdict but which did not strengthen
the reliability of the pivotal hearsay statement—before ruling that
the hearsay statement in the case was uncorroborated. So, when we
consider the Webb court’s use of the term “uncorroborated” in
context, it is clear that the court used it in the sense I have indicated.
¶164 So, with this context in mind, the correct reading of the
statement “that a single uncorroborated hearsay statement is not
substantial evidence and not sufficient to support a verdict” is that,
due to the inherently unreliable nature of hearsay statements, we can
affirm a guilty verdict based primarily on hearsay only if the
reliability of the hearsay statement has been corroborated (or
bolstered) through other evidence. In other words, where a
conviction is based entirely or “almost entirely” on hearsay
evidence, we should determine whether other evidence, which
“differs from” the hearsay, “strengthens or confirms” what the
hearsay evidence shows. 80
¶165 In sum, our decisions in Webb and Ramsey establish the
following principles: (1) appellate courts may weigh the reliability
and probative value of hearsay statements; (2) where a conviction is
based almost entirely on an unreliable hearsay statement, the
evidence is insufficient to sustain the conviction; and (3) although, as
a general matter, hearsay is inherently unreliable, hearsay evidence
may be sufficient to support a conviction where other, corroborating
evidence provides adequate assurance of the hearsay’s reliability.
After applying these principles in this case, I conclude that E.D.’s
_____________________________________________________________
it was almost certain that the testimony of a child as young as the
victim here would not be admissible.”)
78 Giant, 37 P.3d at 56 (Mont. 2001) (describing the analysis in
Orrico).
79 Webb, 779 P.2d at 1115 (citing Orrico, 559 F.2d at 118).
80 Corroborating Evidence, BLACK’S LAW DICTIONARY (11th ed.
2019).
54
Cite as: 2020 UT 65DURRANT, C.J., dissenting
out-of–court statement is too unreliable to serve as the basis for
Mr. Stricklan’s conviction.
B. Because E.D.’s Hearsay Statement is Uncorroborated,
the Evidence is Insufficient to Support Mr. Stricklan’s Conviction
¶166 The majority’s misreading of our decisions in Webb and
Ramsey leads it to incorrectly conclude that the evidence in this case
is sufficient to establish the elements of sexual abuse of a child. To
prove sexual abuse of a child, the State must establish that the
defendant (1) “touche[d] the anus, buttocks, pubic area or genitalia
of any child, [or] the breast of a female child” and that he did so with
the “intent to cause substantial emotional or bodily pain to any
individual or with the intent to arouse or gratify the sexual desire of
any individual.” 81 The majority concludes the State presented
sufficient evidence to satisfy either of these elements. But this
conclusion appears to stem from the majority’s view that it cannot
make its own assessment of the evidentiary weight of E.D.’s hearsay
statement. 82
¶167 The majority characterizes this case as a choice between
two versions of events. 83 In one version, Mr. Stricklan entered E.D.’s
bedroom after she had gone to bed and began groping E.D.’s breasts
and buttocks. 84 In the other version, nothing criminal occurred. E.D.,
_____________________________________________________________
81 UTAH CODE § 76-5-404.1(2).
82 The majority argues that this overstates its position. Instead, the
majority would like its position to be described as an
acknowledgement “that, when an assessment of credibility turns on
observing a witness and her demeanor, we afford deference to the
trier of fact that had the opportunity to assess the witness’s
credibility.” Supra ¶ 100 n.18. But no trial witness in this case
testified to facts that could sustain a conviction. The majority cannot
credibly argue otherwise. So the question in this case is whether
E.D.’s hearsay statement, which was repeatedly recanted at trial, is
sufficiently reliable to sustain a conviction. I say it is not, but the
majority argues that this is an improper re-weighing of the evidence.
With this in mind it is difficult to characterize the majority’s position
as anything but a rejection of the principle that we are permitted to
weigh the evidentiary weight of hearsay statements on appeal.
83 Supra ¶ 2.
84 Supra ¶ 111.
55
STATE v. STRICKLAN
DURRANT, C.J., dissenting
who liked to sleep with a lamp and a television on, awoke because
the noise of the television had been turned off. Upon waking, she
saw Mr. Stricklan passed out on her floor. E.D. ran to her mother’s
room to tell her mother what had happened. But, either because she
had dreamed it or thought it while “half awake,” she told her mother
some “crazy and untrue stuff” about Mr. Stricklan touching her. And
later, after the police had been called, E.D. stuck to her claim about
Mr. Stricklan touching her because she was afraid that she and her
mother would get into trouble if she admitted to lying about
Mr. Stricklan touching her. Those are the two versions of events
described by the majority.
¶168 But the jury never heard the first version. The jury never
heard E.D. claim that Mr. Stricklan entered her bedroom in order to
sexually abuse her. Instead, the jury heard E.D. recount the second
version in detail—a version in which no criminal activity occurred.
And it heard E.D. admit, after questioning from the State, that she
had previously claimed that Mr. Stricklan had at some point touched
her “boobs” and her “bottom.” But in the same breath in which E.D.
admitted to having previously claimed this, the jury also heard E.D.
vehemently deny that it was in fact true. And although E.D.
admitted to having made this claim, she provided no additional
details for how the previously alleged touching had taken place or
even when it had happened. So the jury never heard a version of
events similar to what the majority describes.
¶169 And, unlike the evidence presented in Webb and Ramsey,
there is no physical evidence of sexual abuse in this case. Also unlike
those cases, there is no expert testimony opining that the alleged
victim has been abused. Nor are there any witnesses who testified,
under oath, that they believed sexual abuse occurred or that
Mr. Stricklan committed the crime. And in contrast to the facts in
Webb, the person who made the previous out-of-court statement in
this case unequivocally refuted the truthfulness of that statement at
trial.
¶170 So the evidence in support of Mr. Stricklan’s conviction
amounts to a reference to an out-of-court statement in which E.D.
claimed that Mr. Stricklan touched her “boobs” and her “bottom”
and to testimony regarding how others reacted to this claim. 85 But
_____________________________________________________________
85 The majority argues that to “characterize E.D.’s testimony as a
‘reference’ ignores the reality of what the State presented to the
(continued ...)
56
Cite as: 2020 UT 65DURRANT, C.J., dissenting
none of this other evidence strengthens the likelihood that E.D.’s
out-of-court claims were true. In other words, it does not render
E.D.’s hearsay statement more reliable. Rather, this evidence shows
only that other people believed E.D.’s claims. In contrast to the
majority, I conclude this is insufficient to prove beyond a reasonable
doubt that Mr. Stricklan committed the crime of sexual abuse of a
child.
¶171 As the majority correctly notes, our task on appeal is to
review the evidence presented to the jury and to determine whether
reasonable jurors “must have entertained a reasonable doubt that the
defendant committed the crime for which [the defendant] was
convicted.” 86 Although it is unnecessary to repeat all the facts set
forth by the majority, it is important to emphasize that the evidence
_____________________________________________________________
jury.” Supra ¶ 116. I disagree. Although the State questioned E.D. at
length about her previous claim that Mr. Stricklan had touched her
“boobs” and her “bottom,” this questioning did not lead to any
additional detail about the alleged crime. So E.D.’s bare admission
that she had previously made such a claim, without any additional
factual detail, may aptly be described as a reference to an
out-of-court statement.
The majority also suggests that evidence about how others
reacted to E.D.’s claim could render E.D.’s claim more reliable. And,
as an example, it argues that “an unqualified confession” by a
defendant could be characterized as having been made in reaction to
a hearsay statement. Supra ¶ 84 n.14. But an unqualified confession,
in which a defendant relies on his or her personal knowledge to
confirm the facts contained in another witness’s statement, is not
evidence regarding “how others reacted” to a hearsay statement.
Rather, an unqualified confession would provide “independent”
corroboration of the facts contained in the hearsay statement.
Compare Gardner, 27 P.2d at 52 (explaining that corroborative
evidence had to provide support for the facts needing corroboration
“without the aid” of the facts to be corroborated) with id. (concluding
that certain evidence was insufficient to corroborate other evidence
because “[t]here [was] no corroborative evidence independent of the
statements which it is claimed appellant made to others after the
crime was committed which tends to implicate him in the
commission of the crime.” (emphasis added)).
86 State v. Robbins, 2009 UT 23, ¶ 14, 210 P.3d 288 (internal
quotation marks omitted).
57
STATE v. STRICKLAN
DURRANT, C.J., dissenting
supporting Mr. Stricklan’s conviction amounts to nothing more than
an out-of-court statement, which was repeatedly and strenuously
recanted at trial, and witness testimony regarding how people
reacted to this out-of-court statement before it was recanted. In short,
the State’s case rests almost entirely on the reliability of an
out-of-court statement, the truth of which was clearly denied under
oath. With these facts in mind, it is difficult to see how any
reasonable juror would not have entertained a reasonable doubt
regarding Mr. Stricklan’s guilt.
¶172 The majority, of course, disagrees. But in so doing, the
majority does not attempt to weigh the reliability of E.D.’s hearsay
statement. Instead, it argues that this case comes down to a question
about which version of E.D.‘s story the jury believed. 87 And because
_____________________________________________________________
87 Supra ¶ 2. Because, at trial, the only witnesses who would have
personal knowledge of the alleged incident (including the alleged
victim) agreed that no crime was committed, the jury was never
presented with two different versions of events. The majority’s
contrary characterization of the case fails. Supra ¶ 100. The majority
is correct that the jury heard evidence that Mr. Stricklan was unsure
why E.D. said what she said and that he did not think she would just
make something up. (The majority relies heavily on this latter bit of
evidence, characterizing it as though Mr. Stricklan had all but
confessed to the crime. But, in context, it appears that all
Mr. Stricklan meant when he said he did not think E.D. was making
it up was that he did not think she was intentionally lying.) But the
jury would have been well-aware that Mr. Stricklan denied
committing the crime charged. It was, after all, Mr. Stricklan’s not-
guilty plea that made the jury’s presence at the trial necessary. And
the jury heard Mr. Stricklan, through his attorney, mount a vigorous
defense against this charge. So there could be no doubt that
Mr. Stricklan denied committing the crime for which he was
accused.
The majority’s characterization of E.D.’s position is likewise
flawed. Although the State managed to admit references to E.D.’s
previous (but recanted) allegations, E.D. told the jury that her
previous allegation was “a lie,” that Mr. Stricklan never touched her,
and that she was one “hundred percent sure” and had “no doubt” in
her mind that Mr. Stricklan never touched her. She also repeatedly
answered that she understood the importance of telling the truth
(continued ...)
58
Cite as: 2020 UT 65DURRANT, C.J., dissenting
the jury apparently found the reference to E.D.’s out-of-court
statement to be more “credible” than her trial testimony, the
majority declines to second-guess the conviction.
¶173 But E.D.’s previous claim that Mr. Stricklan sexually
abused her was not made before the jury, so the jury was not in a
position to judge E.D.’s credibility while E.D. made it. That is one of
the chief problems with hearsay statements (and with the majority’s
failure to correctly apply the principles established in Webb and
Ramsey)—with hearsay, the fact finder has no opportunity to observe
the witness’s demeanor and assess the witness’s credibility while the
witness is making the out-of-court statement. 88 So the evidentiary
sufficiency of this hearsay claim does not come down to the claim’s
credibility, as the majority suggests. 89 Rather, as our holdings in Webb
_____________________________________________________________
under oath and that no one threatened her or urged her to say what
she was saying at trial.
88 State v. Clevenger, 289 S.W.3d 626, 629 (Mo. Ct. App. 2009)
(“Courts also generally exclude hearsay evidence as inherently
unreliable because the out-of-court statements cannot be cross-
examined, and neither the judge nor jury is able to assess the declarant’s
demeanor in determining witness credibility.” (emphasis added)); cf.
Sinning v. State, 172 P.3d 388, 392 (Wyo. 2007) (“Where non-hearsay is
presented, we defer to the district court’s opportunity to assess the
credibility of the witnesses and make necessary inferences,
deductions and conclusions.” (emphasis added)).
89 The majority responds to this point by stating that because the
jury saw “the prosecutor question E.D. about her previous
statements“ and heard “E.D.’s trial testimony that [Mr.] Stricklan did
not touch her” as well as “the testimony of other witnesses,” the
“jury was in the best position to weigh all the evidence and
determine the credibility of that evidence.” Supra ¶ 117. But this
argument again fails to fully account for the inherently unreliable
nature of hearsay statements. It fails to account for the fact that a
“hearsay statement can never be subjected to the same degree of
scrutiny through cross-examination as can live testimony.”
Goldman, supra ¶ 140. And it fails to account for the fact that an
“opponent may never be able to expose, and the trier of fact never
learn, the possible reliability problems of a given hearsay statement,”
even where “the declarant takes the witness stand and relates his or
her own prior out-of-court statement.” Id.; see also Giant, 37 P.3d at 59(discussing reasoning similar to that employed by the majority
(continued ...)
59
STATE v. STRICKLAN
DURRANT, C.J., dissenting
and Ramsey make clear, the outcome of this case comes down to the
evidentiary weight we assign E.D.’s recanted, unsworn, out-of-court
statement, based on its reliability, when that statement is considered
together with all the evidence presented to the jury.
¶174 It is possible, of course, that in a future case a hearsay
statement could possess sufficient indicia of reliability to stand on
equal evidentiary ground as an in-court statement made under oath.
But in this case the only evidence cited by the State or the majority
does not bolster the reliability of the hearsay statement, because the
evidence is equally susceptible to an interpretation wholly consistent
with E.D.’s trial testimony. In other words, none of the other
evidence in this case corroborates E.D.’s hearsay statement.
¶175 For example, the majority points out that E.D.’s mother
asked Mr. Stricklan about E.D.’s allegations and that her mother had
been crying when the police arrived.90 But only a very irresponsible
mother would ignore an allegation, made by her daughter, of this
nature. In fact, out of an abundance of caution, a mother is likely to
investigate such an allegation even if she suspects it might not be
true. And the fact that the mother was crying when the police
_____________________________________________________________
before explaining that “this rationale only addresses the credibility a
jury gives to one witness. It does not address whether the out-of-
court statement is so reliable it supports guilt beyond a reasonable
doubt”).
The majority’s reference to other witnesses is also misplaced in
this case because no other witness could testify to the truth of any
facts contained in E.D.’s hearsay statements or provide any other
information that would support a conviction. So their testimony
could not have provided the jury with any corroboration of the
information in E.D.’s hearsay statements. See, e.g., Walton v. State, 88
Ind. 9, 19 (1882) (“It is wholly immaterial whether some other
witness would or would not believe the particular witness under
oath.”).
90Supra ¶ 86. The majority actually describes this encounter as a
confrontation. Supra ¶¶ 7, 84. And in so doing, it suggests the
mother came to Mr. Stricklan fully believing what E.D. had told her.
But a review of the trial transcript shows that although the State
described this encounter as a confrontation in opening and closing
arguments, the evidence actually presented to the jury describes the
encounter in more neutral terms.
60
Cite as: 2020 UT 65DURRANT, C.J., dissenting
arrived is not inconsistent with E.D.’s in-court recantation because,
at the time the police arrived, E.D. had not yet recanted.
¶176 The majority also relies on the fact that Mr. Stricklan told
the police that E.D. did not have a reputation for lying. 91 But the fact
remains that E.D. was not entirely truthful at least once in this case:
either in her out-of-court statement or under oath at trial. So, based
on this evidence regarding her reputation for honesty, it seems at
least equally likely that her out-of-court statement, which she claims
was the result of a false impression she received while “half awake,”
contains the falsehood rather than her sworn statements in court.
¶177 The majority also points to the fact that E.D. was sad in the
aftermath of her having made the allegations against Mr. Stricklan.92
According to the majority, this suggests that E.D. had a motive to
recant her allegations, even if they were true. That’s possible. But her
sadness would also provide her with an added incentive to recant
false allegations, even if she thought she (or her mother) could get in
trouble for doing so. And, under oath, E.D. swore that she was never
coerced or pressured to recant her testimony. So this evidence, like
all the evidence the majority cites, is consistent with either version of
events. So it does not provide us with any added assurance that
E.D.’s hearsay statement is reliable. 93
_____________________________________________________________
91 Supra ¶ 89.
92 Supra ¶ 90.
93 The majority criticizes me for offering plausible alternative
explanations for this other evidence. Supra ¶ 118-19. It states that it is
“of no moment that we can offer alternative explanations, or even
that we would have reached a different conclusion had we served on
the jury” because the “question [before us] is whether enough
evidence existed to permit the jury to reach its verdict.” Supra ¶ 119.
But the majority misreads my opinion. I am not reviewing this other
evidence to determine whether it could support an alternative,
plausible conclusion. This is because none of this evidence speaks
directly to the elements of the crime in this case. Instead, I am
examining this evidence to determine whether it bolsters (or
corroborates) the reliability of E.D.’s out-of-court statements (the
only piece of evidence that speaks to any elements of the crime at
issue). And, as Webb and Ramsey make clear, this reliability
assessment does not require me to defer to the jury. Because I
conclude that the hearsay statement is unreliable, and that none of
(continued ...)
61
STATE v. STRICKLAN
DURRANT, C.J., dissenting
¶178 The closest the majority comes to identifying evidence
that could bolster the reliability of E.D.’s hearsay statement is when
it points to a statement one police officer claimed to have overheard
Mr. Stricklan make.94 The officer testified he overheard Mr. Stricklan
tell someone on the phone that he had acted inappropriately. And
the majority notes that this officer wrote down the statement
“verbatim into [his] report.”95 If true, this evidence could provide an
independent indication that E.D.’s hearsay statement was true. But
Mr. Stricklan’s father, who was the person on the other end of the
phone call, testified that Mr. Stricklan told him only that he had been
“accused” of doing something inappropriate, not that he had done
something inappropriate. 96 In addition, the officer’s testimony—that
he wrote the statement down “verbatim”—merely suggests that the
officer did not misremember what he thought he heard. It does not
tell us whether he misheard Mr. Stricklan’s statement in the first
instance.
¶179 But even were we to disregard this conflicting evidence
and accept the officer’s testimony as true, this statement does not
necessarily corroborate E.D.’s hearsay statement. The phrase “I did
something inappropriate” is ambiguous. And, under the
circumstances, it is quite possible that this phrase referred to
Mr. Stricklan’s excessive drinking the night before. The jury heard
that the night of the alleged incident Mr. Stricklan drank “a 6-pack of
Bud Light Tall Boys,” “some vodka,” a “Pabst beer,” and “a whole
_____________________________________________________________
the other evidence bolsters its reliability, I answer the ultimate
question in this case in the negative. I conclude that the evidence
presented by the State is insufficient to support a guilty verdict.
I also note that under our case law “[c]orroborative evidence
must be inconsistent with innocence and is not sufficient if it merely
casts a grave suspicion on the accused.” Gardner, 27 P.2d at 52. So the
majority’s treatment of the other evidence in this case as though it
corroborates E.D.’s hearsay statement is inconsistent with our case
law.
94 Supra ¶ 88.
95 Supra ¶ 88.
96 The father was asked, “on a scale of 1 to 10, 10 being absolutely
positive” how certain he was that Mr. Stricklan had said he was
“accused” of doing something inappropriate, not that he had done
something inappropriate. The father replied “Eleven.”
62
Cite as: 2020 UT 65DURRANT, C.J., dissenting
bottle of wine.” In fact, the jury heard that Mr. Stricklan drank so
much alcohol that he passed out and did not remember anything
else until morning. The jury also heard Mr. Stricklan’s father testify
that “drinking” had “been an issue” for Mr. Stricklan “ever since he
got back from the wars.” And the jury heard his father testify that he
could discern over the phone, based on the sound of Mr. Stricklan’s
voice, that Mr. Stricklan had been drinking too much. And, finally,
the jury heard that Mr. Stricklan had been attending AA meetings
since the day of the alleged incident.
¶180 Based on this contextual evidence, it is reasonable to
assume that, when Mr. Stricklan called his father to ask for a ride
because he was too drunk to drive himself, Mr. Stricklan’s reference
to inappropriate acts was a reference to his excessive drinking and
not to any acts of sexual abuse. Accordingly, this evidence is
consistent with either version of events and does not bolster the
reliability of E.D.’s hearsay statement.
¶181 In sum, when all the evidence in this case is considered,
it’s clear that, like the convictions we reversed in Webb and Ramsey,
Mr. Stricklan’s conviction is based “almost entirely on one out-of-
court declaration” of a child. 97 And, as in Webb and Ramsey, there is
no evidence in this case to sufficiently corroborate this hearsay
statement. In fact, the truth of the hearsay statement in this case is
even less reliable than in Webb or Ramsey because E.D., the child who
made the initial out-of-court statement, unequivocally refuted the
truth of her initial statement. 98 Accordingly, Mr. Stricklan’s
_____________________________________________________________
97 Webb, 779 P.2d at 1115.
98 In this case, E.D. repeatedly denied the truth of her out-of-court
statement. In fact, she testified she was one “hundred percent sure”
and had “no doubt” in her mind that Mr. Stricklan did not touch her.
In contrast, in Webb, the child-declarant was only eighteen-months
old and, as a result, was not required to testify in court about her
hearsay statement. Webb, 779 P.2d at 1108. And in Ramsey, although
the child-declarant did deny “the factual assertion contained in the
statement,” there was no indication in the opinion that he denied it
in such unequivocal terms. Ramsey, 782 P.2d at 483. And the child’s
denial was undercut slightly by the fact that, at one point, the child
testified that his defendant-father had “threatened” to “hurt” the
child if the child “told on him.” Id. at 487 (Hall, C.J., concurring and
dissenting).
63
STATE v. STRICKLAN
DURRANT, C.J., dissenting
conviction is “not based on substantial reliable evidence” and,
therefore, under the principles we discussed in Webb and Ramsey, it
“cannot stand.” 99 For this reason, the majority errs in affirming the
conviction.
II. Even Were We to Deem E.D.’S Hearsay Statement
Sufficiently Reliable to Support a Finding That
Mr. Stricklan Touched E.D.’S Breasts or Buttocks,
It Would Nevertheless Be Insufficient to Show That
Mr. Stricklan Touched E.D. With the Requisite Intent
¶182 Even were we to deem E.D.’s hearsay statement
sufficiently reliable to support a finding that Mr. Stricklan touched
E.D.’s breasts or buttocks, I would nevertheless conclude that the
evidence is insufficient to show that Mr. Stricklan touched E.D. with
the requisite intent. The majority acknowledges that there is no
direct evidence of Mr. Stricklan’s intent when he allegedly touched
E.D. But it notes, correctly, that “criminal intent” may “be inferred
from circumstances such as presence, companionship, and conduct
before and after the offense.” 100 But this case does not present
sufficient circumstantial evidence of intent.
¶183 As discussed above, the jury did not hear evidence that
Mr. Stricklan touched E.D.’s breasts and buttocks within the context
of a recounted version of events. It heard E.D. convey a story in
which no criminal activity occurred, but where she awoke to find
Mr. Stricklan passed out on her bedroom floor. And then they heard
E.D. admit, in response to State questioning, that she had previously
claimed that Mr. Stricklan touched her “boobs” and “bottom.” This
reference to a hearsay allegation, presented in the abstract, is
insufficient to sustain a finding of intent. And the majority’s
conclusion to the contrary will render the intent element superfluous
in most cases.
¶184 In support of its reasoning, the majority cites a number of
court of appeals cases in which that court found there to be sufficient
evidence of intent despite any direct evidence. 101 But in all the cases
_____________________________________________________________
99 Id., 782 P.2d at 483.
100 Supra ¶ 106 (citing State v. Briggs, 2008 UT 75, ¶ 13, 197 P.3d
628) (internal quotations omitted).
101 Supra ¶¶ 107-09.
64
Cite as: 2020 UT 65DURRANT, C.J., dissenting
cited by the majority, the circumstantial evidence was so
overwhelming that no other conclusion could possibly be drawn. 102
_____________________________________________________________
102 See State in Interest of D.M., 2013 UT App 220, ¶ 11, 310 P.3d
741 (finding circumstantial evidence of intent where the defendant
pulled down the victim’s pants and touched his testicles while the
two of them were underneath a futon during a sleepover and where
the victim testified to feeling “scared” as a result); State v. Bair, 2012
UT App 106, ¶ 6, 275 P.3d 1050 (finding circumstantial evidence of
intent where the defendant admitted to having an “addiction to the
‘touchy/feely’ aspects of sex that he admittedly was having
difficulty controlling not long before [the victim-daughter] was
abused” and where the daughter’s testimony regarding the acts of
abuse were “consistent” with the nature of the defendant’s
addiction); State v. Bhag Singh, 2011 UT App 396, ¶ 9, 267 P.3d 281(finding circumstantial evidence of intent where the defendant
moved closer to the eleven-year-old victim as he told her that “he
liked her and loved her,” “rubbed her breasts approximately three
times in an up and down motion,” and “leaned in and kissed” her);
State v. Watkins, 2011 UT App 96, ¶ 18, 250 P.3d 1019 (finding
circumstantial evidence of intent where the defendant had “no
legitimate reason” to be in the “Child’s room at the time of the
incident,” the defendant “kissed [the] Child wetly on the side of her
head for approximately three minutes” and “pinched and rubbed
her buttocks for approximately two minutes”), rev’d on other grounds
by State v. Watkins, 2013 UT 28, ¶ 18, 309 P.3d 209; State v. Maness,
2010 UT App 370 U, 2010 WL 5452078 (finding evidence of
circumstantial intent where, on multiple occasions, the defendant-
masseuse entered a massage room early, moved a concealing drape
to expose the victims’ naked bodies, touched the victims’ genitalia
and breasts “during a massage procedure that should be performed
without touching the genitalia,” and lingering after administering a
massage); State v. Tueller, 2001 UT App 317, ¶ 19, 37 P.3d 1180(finding circumstantial evidence of intent where the defendant was
discovered lying on top of the child-victim in a darkened room and,
at the time of discovery, the defendant had his pants pulled down to
the “the bottom margin of his buttocks,” the child’s “panties were
down near her knees,” and her “legs were spread apart” with the
defendant’s knee in between them); State v. Hall, 946 P.2d 712, 724
(Utah Ct. App. 1997) (finding circumstantial evidence of intent
(continued ...)
65
STATE v. STRICKLAN
DURRANT, C.J., dissenting
¶185 In fact, in one case the majority cites, the court of appeals
reversed a conviction based on insufficient evidence of intent. In that
case, a defendant was convicted of sexual abuse of a child based on
the physical act of moving the child’s “hand—palm up—to
Defendant's penis.” 103 The defendant, who claimed to have been
asleep at the time of the alleged incident, had no memory of the
incident. 104 Although there was evidence that the child’s hand
remained over the defendant’s penis for “up to a minute,” the State
did not present any evidence that the defendant “had held [the
alleged victim’s] hand in place or otherwise manipulated it.” 105 In
considering the sufficiency of the defendant’s conviction, the court of
appeals explained that “the State produced no evidence beyond the
physical act [constituting the alleged touching] to satisfy the State’s
burden of proving beyond a reasonable doubt Defendant’s intent to
arouse or gratify the sexual desire of himself or any other person.” 106
¶186 In responding to the State’s arguments in defense of the
evidence, the court explained that the State, which argued (similarly
to the majority in this case) that intent could be inferred based on the
defendant’s act, had essentially asserted “an evidentiary
presumption that the physical act of touching amounts to prima facie
evidence of an intent to do so for the purpose of arousing or
gratifying sexual desire.” 107 But, because such a presumption would
“effectively and impermissibly shift the burden of proof regarding
intent onto the defendant so long as the physical act element is
proven,” the court of appeals rejected the State’s argument. 108
_____________________________________________________________
where the “defendant pulled down [the victim’s] shorts and panties
and stroked her on the genital area”).
103 State v. Whitaker, 2016 UT App 104, ¶ 15, 374 P.3d 56.
104 Id. ¶ 16.
105 Id. ¶ 15.
106 Id.
107 Id. ¶ 17.
108Id. See also Francis v. Franklin, 471 U.S. 307, 313 (1985) (“The
Due Process Clause of the Fourteenth Amendment protects the
accused against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he is
charged. This bedrock, axiomatic and elementary constitutional
(continued ...)
66
Cite as: 2020 UT 65DURRANT, C.J., dissenting
¶187 Instead, the court considered whether the facts presented
led to a reasonable inference of intent. In so doing, the court noted
that an alternative explanation could be given for the defendant’s act
of moving the child’s hand—that the defendant acted “involuntarily
while asleep.” 109 And, because no other circumstantial evidence of
intent existed (beyond the physical act of touching), the court
explained that it was not reasonable to infer that the act had been
done with the requisite criminal intent. 110 According to the court,
this would require the court to “take a speculative leap across a
remaining gap.” 111
¶188 In my view, the majority has taken this speculative leap in
finding the existence of intent. The only evidence presented of the
crime was E.D.’s admission that she had previously claimed that
Mr. Stricklan touched her “boobs” and “bottom.” This admission did
not provide any additional details from which we could infer intent.
For example, it did not indicate for how long Mr. Stricklan had
allegedly touched E.D. And it did not indicate the nature of the
touch—whether Mr. Stricklan’s hand merely brushed up against her
or whether it lingered or stroked her.
¶189 The majority explains that, because Mr. Stricklan allegedly
touched E.D. in two places, the touch could not be accidental. But
this is not the only interpretation of events consistent with evidence.
For example, evidence was presented that Mr. Stricklan thought
(although his recollection of events was murky because he was
inebriated at the time) that he had gone into E.D.’s bedroom to turn
off her lamp and television. So it is possible that in engaging in the
paternal act of turning off E.D.’s television or lamp, Mr. Stricklan
also decided to tuck E.D. into her bed covers, at which point he
inadvertently touched her. Of course, this is highly speculative.112
_____________________________________________________________
principle prohibits the State from using evidentiary presumptions
. . . that have the effect of relieving the State of its burden of
persuasion beyond a reasonable doubt of every essential element of
a crime.” (internal quotation marks omitted)).
109 Whitaker, 2016 UT App 104, ¶ 16.
110 Id. ¶ 18.
111 Id. (internal quotation marks omitted).
112 Had E.D. been half asleep while this was happening, she could
easily have misinterpreted it as something more offensive. It is also
(continued ...)
67
STATE v. STRICKLAN
DURRANT, C.J., dissenting
But this is no more speculative than the alternative reason offered by
the court of appeals in Whitaker. 113 And, because there is no
contextual evidence surrounding E.D.’s recanted allegation that
Mr. Stricklan touched her, the majority’s adopted inference is just as
speculative.
¶190 Finally, the majority explains that the fact that E.D. ran to
tell her mother what had happened also suggests the touch was not
accidental. But the evidence presented to the jury actually indicates
that E.D. ran to tell her mother that Mr. Stricklan was passed out on
her bedroom floor, not that Mr. Stricklan had touched her. So even
though the record makes it clear that, at some point, E.D. claimed to
have been touched by Mr. Stricklan, this hearsay claim was never
presented within the factual context necessary to make the type of
“reasonable” inferences the majority purports to make. And by
ruling as the majority does based on the evidence in the case, the
majority creates an evidentiary presumption that the “intent”
element is satisfied whenever the “touching” element has also been
met. This impermissibly flips the burden of proof of an essential
element onto the defendant. Accordingly, the evidence is insufficient
to support a finding of guilt on the “intent” element.
¶191 In sum, when the evidence presented to the jury is
considered (and only that evidence), it is clear that Mr. Stricklan’s
conviction is based almost entirely on E.D.’s hearsay statement.
Because there is no evidence to bolster the inherent unreliability of
this statement (in fact, the sworn in-court statement expressly refutes
it), the evidence in the case is insufficient to support Mr. Stricklan’s
conviction.
¶192 Additionally, even were I to conclude that E.D.’s hearsay
statement was sufficiently reliable, I would nevertheless conclude
that there is insufficient evidence to prove the “intent” element.
Because all the jury heard was a reference to an abstract allegation
that Mr. Stricklan had touched E.D.’s breasts and buttocks, any
inference about intent in this case is necessarily speculative. And,
_____________________________________________________________
possible, while moving about her room in his drunken state, that
Mr. Stricklan tripped onto E.D.’s bed and touched her inadvertently
while attempting to push himself back onto his feet.
113Id. ¶ 16 (explaining that the defendant could have placed the
victim’s hand over the defendant’s penis “involuntarily while
asleep”).
68
Cite as: 2020 UT 65DURRANT, C.J., dissenting
were we to conclude that this evidence is sufficient to satisfy the
intent element beyond a reasonable doubt, we would render the
intent element superfluous in most cases.
CONCLUSION
¶193 Mr. Stricklan’s conviction was based “almost entirely” on
E.D.’s out-of-court statement. Because that statement is unreliable,
and no evidence presented in the case sufficiently bolsters the
statement’s reliability, I conclude the evidence is insufficient to
sustain Mr. Stricklan’s conviction. Additionally, even were I to
conclude that E.D.’s hearsay statement was sufficiently reliable, I
would nevertheless conclude there is insufficient evidence regarding
Mr. Stricklan’s intent.
69