State v. Kitzmiller

2021 UT App 87THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DYLAN JAMES KITZMILLER,
Appellant.
Opinion
No. 20190716-CA
Filed August 12, 2021
Third District Court, West Jordan Department
The Honorable William K. Kendall
No. 171403744
Wendy M. Brown, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
SENIOR JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
concurred. 1
APPLEBY, Senior Judge:
¶1 Dylan James Kitzmiller was convicted on two counts of
child abuse in connection with the death of his girlfriend’s
newborn baby. On appeal, he argues (1) his trial counsel was
ineffective for failing to request a separate unanimity jury
instruction and that the district court plainly erred by not
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
State v. Kitzmiller
providing one sua sponte,2 (2) the district court erred by refusing
to give a jury instruction pertaining to an in-custody informant
and trial counsel was ineffective for failing to make additional
arguments on the matter, and (3) there was insufficient evidence
to support the jury’s verdict. We affirm.
BACKGROUND
¶2 Kitzmiller and his girlfriend (Girlfriend) were living in his
mother’s basement when Girlfriend’s newborn baby (Baby) died.
Baby was born with no known health problems on September 4,
2017. One evening approximately two weeks later, emergency
responders were called to the household because Baby had
stopped breathing.
¶3 Responding medical professionals pronounced Baby dead
at the scene. The fire battalion chief noticed that Baby was
“emaciated” and “had a lot of injuries.” He requested detectives
be sent to the scene “because it looked like non-accidental
trauma.” The first police officer to arrive observed that
Kitzmiller was “crying” and “upset,” but nevertheless thought
Kitzmiller’s demeanor was unusual: “What struck me was he
wouldn’t look any officer in the eyes as they would walk past.
He kind of ducked his head, covered his eyes, and wouldn’t look
me in the eye. I was standing right next to him.” Another officer
described Kitzmiller as appearing “very nervous, almost a little
bit panicky, [and] unsure of what he was going to do.” And a
third officer described Kitzmiller as being angry and defensive
when questioned, whereas Girlfriend exhibited more of a
“concerned” demeanor throughout.
2. “Sua sponte” is a Latin term meaning “on its own motion” or
“[w]ithout prompting or suggestion.” Sua Sponte, Black’s Law
Dictionary (11th ed. 2019).
20190716-CA 2 2021 UT App 87State v. Kitzmiller
¶4 A crime scene investigator discovered diapers with “a lot
of blood on them” in the downstairs bathroom and clothes with
“quite a bit of blood” on them in the hamper, including baby
clothes and what the investigator assumed were men’s shirts.
¶5 In performing an autopsy on Baby’s body, the medical
examiner noted many injuries, including abrasions on both ears,
multiple abrasions on his nose, redness and ulceration on his
lower lip and chin, possible bruising on the right side of his
forehead, scrapes on the backs of his fingers on each hand, a
lesion on his left palm, a “fairly large” bruise on his left arm,
bruises on each side of his torso and his chest, a recently broken
right arm, and torn nerves and bleeding in his brain caused by a
traumatic event—indeed, the autopsy suggested that there were
at least two traumatic events because some bleeding in Baby’s
brain was older than other bleeding. The autopsy also showed
that Baby had recently suffered a rib fracture, which was caused
by “[e]xtremely forceful” “shaking or shaking with an impact.”
¶6 After the medical examiner classified Baby’s death as a
homicide caused by “blunt force injuries,” Kitzmiller and
Girlfriend were each charged with one count of murder and
three counts of child abuse. Girlfriend subsequently entered into
a plea agreement with the State, pleading guilty to two counts of
child abuse (for using drugs while nursing Baby and permitting
Kitzmiller to abuse him) in exchange for testifying against
Kitzmiller.
¶7 At Kitzmiller’s trial, Girlfriend testified that in the first
days after Baby’s birth, Kitzmiller looked after Baby but handled
him “[v]ery carelessly.” She said Kitzmiller was “jealous” of the
time she spent tending to Baby and was frequently angered by
Baby’s crying. Among the specific things she observed were
Kitzmiller not supporting Baby’s head; swaddling Baby face
down on the carpet; peeling off irritated skin on Baby’s nose, lip,
and mouth; tossing Baby back-and-forth between his hands;
20190716-CA 3 2021 UT App 87State v. Kitzmiller
tossing Baby into the air; and tossing Baby in frustration onto a
mattress and box spring. She also described a time when
Kitzmiller angrily shook Baby: “[Kitzmiller] was holding [Baby]
up at chest level by his shoulders and [Baby] was crying, and he
was shaking him and calling him stupid and saying he didn’t
understand why [Baby] wouldn’t stop crying.” Girlfriend also
recalled asking Kitzmiller about a bruise on Baby’s cheek a few
days before he died, and Kitzmiller responding that Baby
accidently fell off the bed. And she testified that when she
wanted to take Baby to the doctor to have some injuries checked,
Kitzmiller responded, “If we take him to the doctor they’re
going to take him away from you.”
¶8 Girlfriend testified that on the day Baby died, she left him
with Kitzmiller while she went upstairs to visit with guests. A
couple of hours later she returned to get Baby and found him
“undressed and freezing” and “really irritated.” Girlfriend
dressed Baby and took him upstairs to show him to the guests; at
this point, Kitzmiller left the house. A little later, Girlfriend gave
Baby some gas drops, fed him, and lay down with him for a nap.
When Baby awoke, he was more irritated, and Girlfriend and
Kitzmiller’s mother spent a couple of hours trying to calm him.
Sometime after Kitzmiller returned that evening, Girlfriend was
finally able to soothe Baby to sleep.
¶9 Girlfriend testified that after she put Baby to bed, she
went upstairs to call a friend and told the friend that she feared
for herself and Baby because of Kitzmiller’s “outbursts of anger
and his abuse of [her] and of [Baby].” Girlfriend then elaborated
that part of her concern stemmed from bite marks on Baby’s
hands caused by Kitzmiller.
¶10 After the phone call, Girlfriend returned downstairs to
find Baby awake and undressed, with Kitzmiller making ”some
kind of bicycling motion” with Baby’s legs. Girlfriend described
Kitzmiller’s demeanor: “Just strange. Like he wasn’t happy. He
20190716-CA 4 2021 UT App 87State v. Kitzmiller
wasn’t angry. Just like he wasn’t all there, really.” Girlfriend
testified that she calmed Baby and put him back to sleep, but
after lying down and listening to Baby breathe for forty-five
minutes, she heard him gasp. She testified that she picked up
Baby, realized he was not breathing, and called 911.
¶11 Girlfriend also testified about her first phone call with
Kitzmiller after Baby’s death, which occurred when Kitzmiller
had been missing for “most of that day.” She said that when she
asked where he had been, Kitzmiller responded that he “had
tried to kill himself because [Baby] was not alive anymore and
he thought it was his fault.”
¶12 The medical examiner who performed the autopsy also
testified at trial, cataloguing Baby’s injuries and explaining the
classification of his death as a homicide. And a child abuse
pediatrician who attended the autopsy testified about the kinds
of actions that would cause the injuries Baby sustained. She
offered her conclusion that “the massive amount of blood
around his brain,” “damage to the brain itself,” and “significant
swelling of the brain” caused Baby’s death; she also concluded
that it was not possible for an accident to have caused such
injuries.
¶13 The jury returned a not-guilty verdict on the murder
count (Count I) and one of the child abuse counts (Count III), but
found Kitzmiller guilty on the other two child abuse counts
(Counts II and IV). Kitzmiller appeals.
ISSUES AND STANDARDS OF REVIEW
¶14 Kitzmiller argues, for the first time on appeal, that his
constitutional rights were violated because the jury was not
given a separate instruction requiring it to reach a unanimous
verdict. “A failure to preserve an issue in the trial court generally
precludes a party from arguing that issue in an appellate court,
20190716-CA 5 2021 UT App 87State v. Kitzmiller
absent a valid exception.” State v. Johnson, 2017 UT 76, ¶ 18, 416
P.3d 443. Kitzmiller argues that two exceptions apply in this
case, asserting that the district court plainly erred by failing to
give a separate unanimity instruction and that trial counsel
rendered ineffective assistance by failing to request such an
instruction. See generally id. ¶ 19 (recognizing the exceptions to
the preservation rule of plain error and ineffective assistance of
counsel). “Plain error is a question of law reviewed for
correctness.” State v. Smit, 2004 UT App 222, ¶ 7, 95 P.3d 1203.
Similarly, “when a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court ruling
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of
law.” State v. Beckering, 2015 UT App 53, ¶ 18, 346 P.3d 672(quotation simplified).
¶15 Kitzmiller next argues that the district court erred in
denying his request for a jury instruction addressing testimony
from an in-custody informant. “The refusal to give a jury
instruction is reviewed for abuse of discretion, although in some
circumstances that discretion will be narrowly constrained.”
Miller v. Utah Dep't of Transp., 2012 UT 54, ¶ 13, 285 P.3d 1208(quotation simplified). Further, “when reviewing jury
instructions, we look at the jury instructions in their entirety and
will affirm when the instructions taken as a whole fairly instruct
the jury on the law applicable to the case.” State v. Lambdin, 2017
UT 46, ¶ 41, 424 P.3d 117 (quotation simplified).
¶16 As an alternative argument on the issue of an in-custody
informant instruction, Kitzmiller also argues that his counsel
rendered ineffective assistance by failing to provide “additional
legal argument or a more tailored proposed instruction for the
trial court to consider.” Again, an ineffective assistance of
counsel claim first raised on appeal presents a question of law.
Beckering, 2015 UT App 53, ¶ 18.
20190716-CA 6 2021 UT App 87State v. Kitzmiller
¶17 Kitzmiller finally argues there was insufficient evidence
presented to support his two child abuse convictions. When
addressing such a challenge, “our scrutiny of the evidence is
limited: We review the evidence and all inferences which may
reasonably be drawn from it in the light most favorable to the
verdict of the jury.” State v. Hamilton, 827 P.2d 232, 236 (Utah
1992) (quotation simplified). “Moreover, we assume that the jury
believed the evidence supporting the verdict. A jury conviction
will be reversed for insufficient evidence only if the evidence
presented at trial is so insufficient that reasonable minds could
not have reached the verdict. We will not lightly overturn a jury
verdict.” State v. Widdison, 2001 UT 60, ¶ 74, 28 P.3d 1278(quotation simplified).
ANALYSIS
I. Separate Unanimity Jury Instruction
¶18 Kitzmiller argues he was denied his constitutional right to
a unanimous jury verdict because the district court did not
provide a separate unanimity instruction, which would have
made clear that the jury must unanimously determine which acts
Kitzmiller committed to support the child abuse convictions. He
concedes this argument was not preserved but argues that we
may consider it under two exceptions to the preservation
requirement—plain error and ineffective assistance of counsel.
¶19 “To demonstrate plain error, a defendant must establish
that (i) an error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful, i.e., absent the error,
there is a reasonable likelihood of a more favorable outcome for
the appellant, or phrased differently, our confidence in the
verdict is undermined.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d
346 (quotation simplified). “To succeed on an ineffective
assistance of counsel claim, [a defendant] must show both that
counsel’s performance was deficient and that the deficient
20190716-CA 7 2021 UT App 87State v. Kitzmiller
performance prejudiced the defense.” State v. Beckering, 2015 UT
App 53, ¶ 21, 346 P.3d 672 (quotation simplified).
¶20 Assuming, without deciding, that each preservation
exception otherwise applies in this case, we nevertheless
determine that Kitzmiller has not satisfied the prejudice prong
required to show either plain error or ineffective assistance of
counsel. That is, he has not shown there is a reasonable
likelihood that if a separate unanimity instruction had been
requested and given, the trial result would have been different.
See Archuleta v. Galetka, 2011 UT 73, ¶ 40, 267 P.3d 232 (“To
establish prejudice [for an ineffective assistance of counsel
claim], a defendant must present sufficient evidence to support a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
(quotation simplified)); State v. Dean, 2004 UT 63, ¶ 22, 95 P.3d
276 (“Under the plain error doctrine, a defendant must not only
demonstrate that the error was obvious, but also that it was
harmful or of such a magnitude that there is a reasonable
likelihood of a more favorable outcome for the defendant. This
harmfulness test is equivalent to the prejudice test applied in
assessing claims of ineffective assistance of counsel.” (quotation
simplified)).
¶21 At the outset of our analysis, we note that in the final jury
instructions, given just before deliberations, the district court
gave a general unanimity instruction, explaining, “Because this
is a criminal case, every single juror must agree with the verdict
before the defendant can be found guilty or not guilty.” The
court also instructed the jury that it must consider each charge
separately and further clarified, “Your verdict on one charge
does not determine your verdict on any other charge.”
¶22 Nevertheless, Kitzmiller argues that the absence of a
separate unanimity instruction was harmful because the jury
was unclear as to which alleged injuries related to which of the
20190716-CA 8 2021 UT App 87State v. Kitzmiller
three child abuse charges. We disagree that the jury was
confused on this matter. Counts II, III, and IV were all child
abuse charges based on the same statutory section, but the
Information—which was once read verbatim to the jury and then
later referred to in the preliminary jury instructions—specified
which injuries Kitzmiller allegedly caused that corresponded to
each count: “a comminuted spiral fracture of [Baby’s] right
humerus” for Count II;3 “a fracture of [Baby’s] first left rib” for
Count III; and “multiple injuries, including bruises/abrasions to
[Baby’s] hands, ear, chest, flanks, upper arms, and chin” for
Count IV. And during closing argument, the prosecutor also
clarified which injuries supported which counts of child abuse:
There’s four counts in this case. There’s the murder
count and then there’s three child abuse counts.
The three child abuse counts deal with the fact of
the other injuries that [Baby] had.
When [Baby] was examined, it was found
that his arm was broken. . . . That’s one of the child
abuse counts.
The other child abuse count[] is the first rib
fracture . . . . That happens when the head goes
back and forth.
The third count happens to do with all the
other injuries. The blunt force trauma that [Baby]
had, that he had all over his entire body—on his
3. According to expert testimony presented at trial, a
comminuted fracture is one in which the bone is broken
into “more than two pieces.” See also Comminuted, Merriam-
Webster Medical Dictionary, https://www.merriam-
webster.com/medical/ comminuted [https://perma.cc/X7WB-
WEAK].
20190716-CA 9 2021 UT App 87State v. Kitzmiller
mouth, on his nose, the bruising on his arm, his
hands, his little hands, both hands, his chest, his
hip, his trunk area. That’s what the third count
refers to.
Thus, where the prosecutor mentioned the three separate child
abuse counts, tied each to specific injuries, and explained them
in order, it is not reasonably likely the jury misunderstood which
injuries related to which count of child abuse.
¶23 Given that each count was explicitly tied to specific
injuries in the Information read to the jury and in the State’s
closing argument, it is unlikely the jury was confused by the
multiple child abuse charges and we see no reasonable
likelihood the jury would have returned a more favorable
verdict had the separate unanimity jury instruction been
requested and given.
¶24 Kitzmiller argues that even if the jury was able to discern
which injuries related to each count of child abuse, the alleged
error was harmful because the jury instructions did not clarify to
the jury that it must agree as to which of the two or more actions
listed in the Information supported the final count of child abuse
(Count IV). That count alleged Kitzmiller had “caused multiple
injuries, including bruises/abrasions to [Baby’s] hands, ear, chest,
flanks, upper arms, and chin.”
¶25 But we are not convinced the jury was confused here,
either. The definition of “serious physical injury” given in the
jury instructions included “any combination of two or more
physical injuries inflicted by the same person, either at the same
time or on different occasions.” See also Utah Code Ann. § 76-5-
109(1)(f)(ii)(E) (LexisNexis 2017). Likewise, the prosecutor
explained that the last count of child abuse “lumped together”
many injuries because the definition of serious physical injury
relied on for Count IV required there to be “two or more
injuries.” Thus, because the jury was aware that Count IV
20190716-CA 10 2021 UT App 87State v. Kitzmiller
required two injuries and it was generally instructed that “every
single juror must agree with the verdict,” we think it unlikely
that the jury thought it did not have to agree on which “two or
more injuries” supported the charge.
¶26 Furthermore, we recognize the importance of the strength
of the State’s case on Count IV. The child abuse pediatrician
acknowledged that the actions Girlfriend reported, or others like
them, could have caused several of the injuries listed in Count
IV. For example, the pediatrician testified that shaking could
have caused some of the bruising, that a caregiver’s bites could
have caused the abrasions on Baby’s hands, and that placing
Baby face down on the carpet could have caused his chin injury.
The evidence in support of Count IV was strong, which also
makes it less likely that any error in instruction on this count
was prejudicial to Kitzmiller. See State v. Alires, 2019 UT App 206,
¶ 27, 455 P.3d 636 (“A verdict or conclusion only weakly
supported by the record is more likely to have been affected by
errors than one with overwhelming record support.” (quotation
simplified)).
¶27 In sum, because we are not convinced the jury was
confused regarding which injuries related to which counts,
because it seems unlikely there was confusion regarding the
unanimity required for each count, and because of the strength
of the evidence supporting Count IV, we do not see a reasonable
likelihood that the result would have been more favorable to
Kitzmiller if the separate unanimity instruction had been
requested and given. Thus, Kitzmiller has failed to show
prejudice, and these claims of plain error and ineffective
assistance of counsel therefore necessarily fail.
II. In-Custody Informant Jury Instruction
¶28 Kitzmiller argues that the district court erred by refusing
to give the in-custody informant jury instruction he proposed
regarding Girlfriend’s trial testimony. Trial counsel argued that
20190716-CA 11 2021 UT App 87State v. Kitzmiller
Girlfriend was an in-custody informant and, because of this,
proposed instructing the jury to examine and weigh the
testimony of such an informant “with greater care than the
testimony of an ordinary witness.” But the court determined that
the in-custody instruction did not apply to Girlfriend because
she was Kitzmiller’s codefendant and “a person who had first-
hand knowledge of the facts at issue,” whereas the case referred
to by the related model jury instruction was not such a situation,
see State v. Charles, 2011 UT App 291, ¶¶ 15, 40–41, 263 P.3d 469(considering an in-custody informant instruction where the
informant was incarcerated with the defendant and testified
about details the defendant had told him regarding the murder
for which the defendant was charged).
¶29 “Failure to give requested jury instructions constitutes
reversible error only if their omission tends to mislead the jury to
the prejudice of the complaining party or insufficiently or
erroneously advises the jury on the law.” State v. Van Oostendorp,
2017 UT App 85, ¶ 12, 397 P.3d 877 (quotation simplified). So
even assuming, without deciding, that the proposed instruction
would have been appropriate and that the district court erred by
not instructing the jury as requested, we will not reverse where
prejudice has not been shown and the jury was appropriately
advised on the law. See id.
¶30 Kitzmiller’s requested instruction stated, “[T]he testimony
of an informant who provides evidence against a defendant
must be examined and weighed by you with greater care than
the testimony of an ordinary witness.” It further provided the
following factors for the jury to consider:
1. Whether the informant has received anything
(including leniency in prosecution, personal
advantage, or vindication) in exchange for
testimony;
20190716-CA 12 2021 UT App 87State v. Kitzmiller
2. Other cases, and the number of other cases, in
which the informant testified or offered statements
against another, whether those statements are
being used, and whether the informant received
any deal, promise, inducement, or benefit in
exchange for that testimony or statement, or
believed he was likely to receive some benefit from
his cooperation;
3. Whether the informant has ever changed her
testimony;
4. The criminal history of the informant, not just
limited to number of convictions, but also the level
of sophistication gained through the informant’s
experience in the criminal justice system; and
5. Any other evidence related to the informant’s
credibility.
But where there was no evidence in the record that Girlfriend
had testified in any other cases (the second factor) or gained any
experience with the criminal justice system beyond the facts of
this case (the fourth factor), some factors of the proposed
instruction would have had no impact on the jury’s evaluation of
Girlfriend’s testimony. Indeed, the inclusion of such factors in
the instructions may even have been confusing for the jury.
¶31 Each of the remaining factors of the proposed
instruction—the factors that arguably were applicable in this
case—were included in the more general witness credibility
instruction given to the jury. That instruction listed several
factors to consider in evaluating witness credibility, including
the following: “Does the witness have something to gain or lose
from this case?”, “Does the witness have any reason to lie or
slant the testimony?”, and “Was the witness’s testimony
consistent over time?” Thus, the credibility instruction that was
20190716-CA 13 2021 UT App 87State v. Kitzmiller
given urged the jury to consider all the applicable factors of
Kitzmiller’s requested instruction.
¶32 Kitzmiller’s requested instruction also stated that an
informant’s testimony must be weighed with greater care and
elaborated that this need for care was because “a witness who
has entered into . . . an agreement with the government may
have an interest in the case different than an[] ordinary witness.”
But where the jury was made aware of Girlfriend’s plea
agreement, where the jury heard Girlfriend admit she was
hoping to get probation in exchange for cooperating with the
State, where the court clarified that trial counsel was free “to
argue any of the factors with regard to impeachment,” and
where trial counsel had pointedly argued to the jury the negative
implications of the plea arrangement on Girlfriend’s credibility,
we are convinced the jury was aware of Girlfriend’s apparent
self-interest in testifying against Kitzmiller. And that awareness
would have led to a more critical evaluation of Girlfriend’s
testimony under the witness credibility factors that were before
the jury—resulting in a more careful scrutiny of Girlfriend’s
testimony than that of the other witnesses who had relatively
little to gain or lose from testifying in the case. Under these facts,
we conclude there is no reasonable likelihood of a more
favorable result for Kitzmiller had his requested jury instruction
been given.
¶33 As an alternative argument on this issue, Kitzmiller
contends that trial counsel should have provided additional
legal argument to the district court. Specifically, he argues that
when the court indicated that it was not convinced to use an in-
custody informant instruction and asked counsel for additional
support, counsel should have switched tack and requested an
instruction on accomplice testimony as addressed in Utah Code
section 77-17-7.
20190716-CA 14 2021 UT App 87State v. Kitzmiller
¶34 But as we explained above, see supra ¶¶ 19–20, to prevail
on an ineffective assistance of counsel claim, Kitzmiller must
show both that trial counsel’s performance was deficient and
that such performance prejudiced his case; that is, he must show
that the result would have been different but for counsel’s error.
Even assuming that the failure Kitzmiller highlights constitutes
deficient performance, his claim fails because he has not
established prejudice.
¶35 First, the statute on which Kitzmiller relies would only
require the court to give an accomplice testimony instruction in
certain cases:
(1) A conviction may be had on the
uncorroborated testimony of an accomplice.
(2) In the discretion of the court, an instruction
to the jury may be given to the effect that such
uncorroborated testimony should be viewed with
caution, and such an instruction shall be given if the
trial judge finds the testimony of the accomplice to
be self contradictory, uncertain or improbable.
Utah Code Ann. § 77-17-7 (LexisNexis 2017) (emphasis added).
And Kitzmiller has not shown that the court likely would have
determined Girlfriend’s testimony was “self contradictory,
uncertain or improbable,” thus requiring the accomplice
testimony instruction. See id. And second, even if such an
instruction were given, we are not convinced there is a
reasonable probability that the result of his trial would have
been different. As discussed above, where the general witness
credibility jury instruction already encouraged the jury to
consider what each witness would gain from testifying, whether
each witness had any reason to lie, and whether a witness’s
testimony was consistent, and where trial counsel successfully
alerted the jury to Girlfriend’s self-interest in testifying, we are
not convinced there is a reasonable likelihood that the result
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would have been more favorable to Kitzmiller if an accomplice
testimony instruction had been given. See State v. Dunn, 850 P.2d
1201, 1226–28 (Utah 1993) (finding no prejudice from a trial
attorney’s failure to request an accomplice testimony jury
instruction under section 77-17-7 when the jury was aware of the
accomplice’s plea arrangement and his concomitant “motive to
tailor his testimony to favor the prosecution,” as well as the
accomplice’s general “propensity to lie,” and when the jury was
instructed to consider self-interest and motive in assessing
witness credibility), abrogated on other grounds by State v. Silva,
2019 UT 36, 456 P.3d 718. Thus, under these facts, Kitzmiller has
not established prejudice.4
III. Sufficiency of the Evidence
¶36 Kitzmiller argues the evidence was insufficient to support
the jury’s guilty verdicts on Counts II and IV. Although he
concedes the evidence established that Baby’s injuries were not
accidental and that someone abused Baby, he argues there was
4. Kitzmiller also makes a cumulative error argument, asserting
that even if the two jury instruction errors are not prejudicial on
their own, when taken together they undermine confidence in
the fairness of his trial. We will reverse under the cumulative
error doctrine only if “(1) an error occurred, (2) the error,
standing alone, has a conceivable potential for harm, and (3) the
cumulative effect of all the potentially harmful errors
undermines [our] confidence in the outcome.” State v. Martinez-
Castellanos, 2018 UT 46, ¶ 42, 428 P.3d 1038. Even assuming that
the alleged errors carried a “conceivable potential for harm,” see
id., their combined effect is not such that it “undermines our
confidence that a fair trial was had,” see State v. Maestas, 2012 UT
46, ¶ 363, 299 P.3d 892 (quotation simplified). Thus, Kitzmiller’s
cumulative error argument is unavailing.
20190716-CA 16 2021 UT App 87State v. Kitzmiller
“no evidence” about who caused the injuries and therefore “the
jury necessarily engaged in speculation to reach its conclusions.”
¶37 For each of the child abuse charges, the State was required
to prove beyond a reasonable doubt that Kitzmiller
“intentionally or knowingly” inflicted a “serious physical injury”
on Baby.5 See Utah Code Ann. § 76-5-109(2), (2)(a) (LexisNexis
2017). For Count II, the serious physical injury was Baby’s
broken arm; and for Count IV, the serious physical injury was
two or more of the lesser injuries. See id. § 76-5-109(1)(f)(ii)
(specifying that the term “[s]erious physical injury” includes,
among other things, a “fracture of any bone” or “any
combination of two or more physical injuries inflicted by the
same person, either at the same time or on different occasions”).
¶38 As an initial matter, we note that our analysis must
consider more than the direct evidence presented at trial: “Direct
evidence is not required. Sustainable verdicts are entered every
day on the sole basis of circumstantial evidence. 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 (quotation simplified). It is also important to
distinguish between inferences, which are permissible support
for a guilty verdict, and mere speculation, which Kitzmiller
argues underlies the verdict here. “An inference is a conclusion
reached by considering other facts and deducing a logical
consequence from them. On the other hand, speculation is the
5. Although these charges also could have been supported by a
showing that Kitzmiller caused or allowed another individual to
inflict serious physical injury on Baby while Baby was in his
care, see Utah Code Ann. § 76-5-109(2) (LexisNexis 2017), the
State did not pursue this theory at trial, and we do not consider
it in our analysis.
20190716-CA 17 2021 UT App 87State v. Kitzmiller
act or practice of theorizing about matters over which there is no
certain knowledge at hand.” State v. Prisbrey, 2020 UT App 172,
¶ 23, 479 P.3d 1126 (quotation simplified). Thus, “the difference
between an inference and speculation depends on whether the
underlying facts support the conclusion.” Id. (quotation
simplified).
¶39 Furthermore, as outlined above, see supra ¶ 17, our review
on this issue must take into account the evidence and reasonable
inferences in the light most favorable to the jury verdict, see State
v. Hamilton, 827 P.2d 232, 236 (Utah 1992). And we must assume
the jury believed the evidence that supports the verdict. State v.
Widdison, 2001 UT 60, ¶ 74, 28 P.3d 1278. Therefore, we will
overturn the verdict only if the evidence “is so insufficient that
reasonable minds could not have reached the verdict.” Id.(quotation simplified).
¶40 Much of the underlying evidence, if believed, supported
the jury’s verdict here. First, Girlfriend’s testimony was not
simply that Kitzmiller sometimes was careless in handling Baby;
instead, she testified that he was often angry with Baby and she
observed several instances of inappropriate handling that she
worried would harm Baby. Among these was Kitzmiller tossing
Baby between his hands and into the air as well as an episode in
which Kitzmiller held Baby by the shoulders and angrily shook
him. Second, the child abuse pediatrician testified that those
types of actions could have been related to the injuries referred
to in Count II and Count IV. She testified that Baby’s broken arm
(addressed in Count II) would have been caused by some
“spiral-type grab” such as a “twisting mechanism or yanking”
because it was an “oblique” fracture, going “diagonally across
the bone.” She said that this could have been caused by tossing
Baby into the air and then catching him by the arm. The
pediatrician also testified that some of Kitzmiller’s actions, as
reported by Girlfriend, could have caused several of the lesser
injuries addressed in Count IV. See supra ¶ 26. Third, there was
20190716-CA 18 2021 UT App 87State v. Kitzmiller
evidence that the bloody clothing recovered from the hamper
was Baby’s clothing and men’s clothing.6 Fourth, several pieces
of evidence touched on Kitzmiller’s reactions to the events at
issue. Girlfriend reported Kitzmiller dissuaded her from seeking
medical attention for Baby because Baby might be removed from
her care. Several police officers responding on the night Baby
died reported that Kitzmiller was nervous, panicky, angry, or
defensive. And Girlfriend testified that after Baby’s death,
Kitzmiller said he thought Baby’s death was his fault.
¶41 This underlying evidence could have sustained a
reasonable inference that Kitzmiller intentionally or knowingly
caused Baby’s broken arm and two or more of his more minor
injuries. Thus, sufficient evidence supports the jury’s verdict on
these counts and we will not overturn Kitzmiller’s convictions
on sufficiency grounds.
CONCLUSION
¶42 Kitzmiller has failed to show prejudice arising from the
lack of a separate unanimity instruction. He has also failed to
show prejudice regarding the court’s refusal to give his
requested in-custody informant instruction or his counsel’s
failure to present a more persuasive argument on this issue. And
we are unconvinced the trial evidence is insufficient to support
his child abuse convictions. Therefore, we affirm.
6. Kitzmiller argues evidence of the bloody clothing should not
be considered because the State presented no evidence
concerning whose blood this was or where the blood would
have come from. Although he cites no authority supporting this
position, we note that our reliance on this evidence is minimal
and our decision would be the same even without considering it.
20190716-CA 19 2021 UT App 87